Andhra HC (Pre-Telangana)
V. Padmavattamma vs Pala Rathnam on 7 July, 2003
Equivalent citations: 2003(6)ALD84
ORDER T.Ch. Surya Rao, J.
1. This revision is directed against the order dated 9-6-1997 passed by the learned Subordinate Judge, Nellore in C.M.A. No. 12 of 1991. The revision petitioner is the landlady. She filed the petition seeking eviction of the tenant respondent in R.C.C. No. 44 of 1988 on the file of the Rent Controller-cum-Principal District Munsif, Nellore.
2. The facts lie in a narrow compass. The vacant site on which the premises in question has been erected belongs to Chedella Venkataramanaiah Chetty Santhathi Charity situated at Nawabpet, Nellore Town. It is known as Cheedellavari Sathram, Nellore. One Badelu Jogi Reddy son of Seshu Reddy took the site for ground rent in or about the year 1960 from the said choultry authorities. He reclaimed the said site and constructed the house of about six ankanams and used to reside therein. He sold away the said house to the petitioner on 17-8-1980 for a consideration of Rs. 3,000/-and delivered the same to her. The said fact was intimated to the choultry authorities. Since then the petitioner has been paying the ground rent for the site payable to the choultry at the rate of Rs. 10/-. She spent about Rs. 10,000/- in installing a bore pump and getting the electricity connection and for reroofing of the house. On account of her ill-health and as there was none to look after her except her sisters, the petitioner leased out the schedule premises to the respondent on a monthly rent of Rs. 100/- on 11-3-1980 and left for her sister's house. The respondent paid the rents for a couple of months and committed willful default thereafter. In all he had to pay by the date of filing of the petition a sum of Rs. 7,300/-. The petitioner has no other residential premises of her own and hence she requires the premises for her bonafide requirement. Hence this petition.
3. The respondent resisted the petition mentioning inter alia in his prolix counter that Jogi Reddy the lessee of the choultry put up a hut in the petition schedule vacant site and had been residing therein but he never constructed six ankanams of house. Subsequently, in the month of February 1982, he leased out the site to the respondent on monthly rent of Rs. 75/- when there was no hut even on the site. The respondent after reclaiming the said site constructed a house thereon and has been residing therein since 11-3-1982. He has been paying monthly rent of Rs. 75/- to the said Jogi Reddy. Therefore, the respondent is the tenant over the site of the said Jogi Reddy but not the tenant of the petitioner. There has been no landlord and tenant relationship between the petitioner and the respondent. Since the property belongs to, admittedly the choultry the eviction petition against the respondent is not maintainable. Having regard to the same the question of default and bona fide requirement would not arise at all and therefore the petition is liable to be dismissed.
4. As many as four witnesses were examined including the petitioner herself and Exs.A.1 to A.9 were marked on the side of the petitioner and equal number of witnesses were examined including the respondents and Exs.B.1 to B.55 were marked on the side of the respondents. Exs.X.1 to X.4 were also marked. After appreciating both oral and documentary evidence adduced on the point on either side the learned Rent Controller by his order dated 25-2-1991 allowed the petition and directed the respondent to be evicted. He found the three points formulated by him about the relationship of landlord and tenant inter se between the petitioner and the respondent, willful default and bona fide requirement in favour of the petitioner. Having been aggrieved by the said order the tenant carried the matter in appeal; and under the impugned judgment the learned Subordinate Judge, Nellore reversed the finding of the Rent Controller on the crucial point of jural relationship of landlord and tenant although he was of the view that had this relationship been established the other two points would have been found in favour of the landlady but there was no need to decide those points having regard to his finding on the first point. As aforesaid the revision petitioner is now assailing the said order in this revision case.
5. Admittedly, the site upon which the petition schedule premises was erected belongs to Cheedella choultry which is vested in the Endowments Department. Jogi Reddy P.W.4 was the original lessee. While it is the case of the petitioner that she purchased the house erected on the said site by the said Jogi Reddy in the month of August, 1982, for a consideration of Rs. 3,000/- and obtained vacant possession of the same and that later leased out the said premises to the respondent in the month of March, 1982; it is the case of the respondent that the vacant site was taken on lease by him from the said Jogi Reddy and it is he who constructed the house thereon and has been residing therein by paying the ground rent to the said Jogi Reddy. In a way therefore the respondent is denying the very title over the scheduled premises in favour of the petitioner and consequently the jural relationship of landlady and tenant. Apart from the oral evidence of P.W.1, the petitioner examined P.Ws.3 and 4 to establish that she purchased the house constructed on the site belonging to the choultry and she has been paying the ground rent to the Department and necessary mutation has been effected in the records of the choultry in her name. Oral evidence of P.W.3 coupled with documentary evidence of Exs.A.3 to A.9 would amply show that the petitioner has been paying the ground rent for the vacant site belonging to the choultry and her name has been mutated in the records in substitution of the name of P.W.4. Apart from the documentary evidence adduced on the side of the petitioner, the documents Exs.B.19 and Ex.B.54 filed on the side of the respondent would show that the name of the petitioner has been mutated in the records of the choultry in substitution of the name of P.W.4 and she has been paying the ground rent payable to the choultry from 1980 onwards. This unimpeachable documentary evidence would amply establish that the lessee of the vacant site belonging to the choultry is none else than the petitioner herself. The respondent who made a fervent effort to get his name mutated in the records of the choultry by addressing letters to the Assistant Commissioner of Endowments ultimately failed in his effort and was informed by the Department that the petitioner was the lessee and had been paying the ground rent over the land and that the names of both the petitioner and the respondent stand registered in the records as encroachers of the site of the Department. The fact that both of them stand registered as encroachers is not very much germane for consideration in this revision case. Obviously what was let out by the Department was only the vacant site and the superstructure erected thereon was not that of the Department. Now the controversy in between the petitioner and the respondent pertains only to the superstructure as the petitioner claims to be the landlady and the respondent as tenant, the respondent claims that he is the lessee of P.W.4, insofar as the vacant site is concerned, and it is he who constructed the superstructure. If the petitioner ultimately proves herself to be the owner of the superstructure the question that arises for consideration is whether the respondent is the tenant or not.
6. In view of the competing claims of the petitioner and the respondent about the ownership over the house the evidence on this point has to be seen. Having taken a specific plea in the prolix counter filed by the respondent that he constructed a house and that he is the lessee of the vacant site of P.W.4 his own document filed in proof of the said contention of the respondent shows that he is not only the lessee of the vacant site of P.W.4 and that he is the lessee of the superstructure even under P.W.4. Exs.B.1 to B.18 need a reference in this context. This book is said to have been maintained by the respondent himself and entries have been made in token of having paid the rents to P.W.4. The book has not been confronted to P.W.4 when he was examined. The entries therein unequivocally show that the respondent was the tenant of P.W.4 for the house and had been paying the rent of Rs. 75/- per month. What else is required than the self serving entries made in Exs.B.1 to B.18 being very much relied upon by the respondent himself to show that the respondent is the tenant of the house and he has been paying rent to P.W.4 in respect thereof. Having taken a specific plea in the counter curiously it has been suggested to P.W.1 in the cross-examination at the end that she has not let out the premises to the respondent and the respondent has taken the same on rent from P.W.4. This specific case set up by the respondent by means of a suggestion to P.W.1 in the cross-examination demolishes the very stand taken by him inter alia in the counter. The evidence of P.W.2 establishes that he too like P.W.4 took the vacant site on rent from the choultry in the year 1960 and constructed a house thereon and has been residing therein and Exs.X.1 to X.4 filed by him in proof thereof further buttresses the said evidence. It probablises the version of the petitioner that P.W.1 erected the hut thereon after having taken the vacant site on lease from the choultry like P.W.2. The way in which the respondent has put the suggestion to P.W.1 in the cross-examination shows inconsistency in the stand taken by him. That apart, in his evidence he stated that P.W.4 executed a rent agreement in his favour. In fact he examined P.W.2 to prove that he attested the said document. That document is not coming forth. A convenient explanation has been given that he lost the document but the counter part was available with P.W.4. When P.W.4 was in the witness box he was not cross-examined on those lines nor leave of the Court was sought to cause production of any such document before the Court. The very entries in Exs.B.1 to B.18, sought to be relied upon by the respondent would falsify the stand taken in the counter that he was only a lessee under PW4, insofar as the vacant site is concerned, and it was he who constructed the house thereon. The evidence of P.W.2 as afore discussed probablises the version of the petitioner and the evidence of P.W.4. The testimony of the respondent who has taken inconsistent stands cannot therefore be preferred qua the positive evidence of P.W.4 who was admittedly the lessee of the choultry and sold the scheduled premises in favour of P.W.1. Although Exs.A.1 and A.2 shall be eschewed from consideration being the documents in the nature of post item motam, the oral evidence of P.W.3 and the very correspondence made by the Department apart from other documentary evidence adduced on the side of the petitioner would amply establish that the petitioner was the lessee of the vacant site belonging to the choultry and she purchased the premises thereon from P.W.4. Therefore, I have no hesitation to come to a conclusion having regard to the voluminous documentary and oral evidence that the petitioner is the owner of the premises which she purchased the premises from P.W.4.
7. A piquent question that arises at this juncture is as to whether the petitioner can maintain the present petition. She is not the owner of the site upon which the premises has been erected subsequently. In this connection, of course, it may be mentioned here that the Appellate Court was of the view that the petition is maintainable. Sri P. Krishna Reddy, learned Counsel appearing for the petitioner invited my attention to Section 2(vi) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the Act) which reads as under:
"Landlord means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive rent, if the building were to let to a tenant.
Explanation :--A tenant who sub-lets a building shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant."
A plain reading of the said provision shows that a person who is receiving rent or who is entitled to receive rent of a building, whether on his own account, on behalf of another or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if, the building were to let out to a tenant is a landlord, The explanation appended under the provision further elucidates the definition and shows that the tenant who has sub-let the premises to another shall be deemed to be a landlord within the meaning of the Act. Had the premises been let out to a person although the premises does not belong to him to know the relationship inter se between that person and the lessee, the ownership over the site is not the criterion as can be seen from the plain meaning of the said provision. When he is entitled to receive the rents from the lessee, he becomes the landlord for the purposes of the Act. A plain reading of the said provision leaves no room for any doubt that the petitioner who is the lessee of the choultry in so far as the vacant site is concerned, having purchased the house constructed thereon and is said to have let out the same in favour of the respondent is obviously entitled to receive the rents from the respondent and in that view of the matter, the ownership over the site will not come in the way and therefore for the purposes of the Act, she becomes the landlady qua the respondent who is obviously the tenant. In this connection the learned Counsel seeks to place reliance on the judgment of the Apex Court in Smt. Shanti Sharma v. Smt. Ved Prabha, . That was a case where the person who constructed the house on a plot of land taken from the authority constituted by the State and be being the owner of the structure was held to be the owner of the structure as contemplated under the provisions of the Delhi Rent Control Act. On an analogy the judgment squarely applies to the facts of the present case. It is obvious from the judgment that one need not be the owner of the site which obviously belongs to the Government or other authority once if he is shown to be the owner of the superstructure constructed thereon, the Rent Control Act applies to such a case. In another judgment in Narpatchand A. Bhandari v. Shantilal Mool Shankar Jan, , the Apex Court held that for the purpose of Bombay Rents, Hotel and Lodging House Rates Control Act the landlady includes a usufructuary mortgagee of tenanted premises. In K.D. Dewan v. Harbhajan S. Parihar, , it was held by the Apex Court that to be a landlord a person need not necessarily be the owner, but may be a landlord of the premises in question and in many cases a person other than an owner may as well be a landlord. In view of this weighty authority and having regard to the specific provision under Section 2 (vi) of the Act it is obvious that for the purposes of the Act the petitioner becomes landlady notwithstanding the fact that the site upon which the premises in question has been constructed belongs to the Endowments Department.
8. The other question that crops up for consideration at this juncture is about the jural relationship of landlord and tenant in between the petitioner and the respondent. Obviously, the petitioner has been paying the ground rent to the Department from 1980 onwards. The respondent having taken a specific stand in the counter inter alia that he constructed the premises in question after having taken vacant site on lease from P.W.4 has ultimately taken an inconsistent stand during the course of the evidence by marking the documents Exs.B.1 to B.18 and the specific suggestion made in the cross-examination of P.W.4, the cumulative effect of which clearly which establishes that the respondent is not only the tenant of the vacant site but also the tenant of the schedule premises in question. When that be the clear position whether P.W.4 is landlord or P.W.1 is the landlady, the position of the respondent qua either one of them remains the same. The claim of the respondent that he is the owner of the premises, for the reasons herein above discussed, cannot be accepted as his claim that he is the tenant of P.W.4 has not been spoken to by P.W.4 himself who on the other hand specifically deposed that he sold away the premises to P.W.1 and the respondent has never been inducted as a tenant by him. When the status of the respondent appears to be the tenant when P.W.4 disclaims his tenancy an inescapable conclusion as a necessary corollary comes only in one direction that the respondent is the tenant of P.W.1. There is no scope to draw any other inference than the one as discussed herein above. When the Rent Controller, on an appreciation of oral and documentary evidence, has arrived at such a finding the learned appellate Court discussing particularly the probabilities disbelieved the oral evidence adduced on either side oblivious of the fact that the very entries made in Exs.B.1 to B.18 would negate the very stand of the respondent and hence the said finding of the Appellate Court is not correct, legal and proper. Much value has been given by the Appellate Court to the fact that the rents have not been paid by the respondent admittedly for a period of 73 months till the date of filing of the petition, and therefore, the relationship of landlady and tenant cannot be said to have been established. In fact the learned Counsel for the respondent Sri Seshachalapathy vehemently contends that this is an Indicia to show that there has been no relationship of landlady and tenant in between the parties inter se. Even according to the case of the respondent, he has not been paying rents to P.W.4 from 1983 onwards till the date of filing of the petition. This fact has been lost sight of by the learned Subordinate Judge. The inaction on the part of the petitioner will not have any effect on the non-payment of rents obviously by the respondent in favour of P.W.4. Hence. I am of the considered view that the jural relationship of landlady and tenant has been established in this case in between the petitioner and the respondent. While the Rent Controller was of the view that there has been default on the part of the respondent and the bonafide requirement of the petitioner has also been established the Appellate Court has not referred to the said findings. On the other hand, it was also of the view that once the jural relationship between the landlord and tenant is established, it goes without saying that there has been default on the pat of the respondent and the requirement of premises by the petitioner when she has no other premises of her own also bonafide. Therefore, it is a clear case where the order passed by the Rent Controller is to be upheld.
9. For the foregoing reasons the revision petitioner is allowed and the impugned order dated 9-6-1997 passed by the learned Subordinate Judge, Nellore in CMA 12 of 1991 is hereby set aside confirming the order of the Rent Controller, Nellore in RCC No. 14 of 1988. The respondent tenant is given three months time to vacate the premises. Under the circumstances, there shall be no separate order as to costs.