Andhra HC (Pre-Telangana)
K.P. Janakiram vs K. Suguna Bai on 22 March, 1995
Equivalent citations: 1995(2)ALT61, 1995 A I H C 4004, (1995) 2 LS 63, (1995) 2 RENCJ 322, (1995) 2 RENCR 655, (1995) 2 ANDH LT 61
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER B.S. Raikote, J.
1. The petitioner, who is alleged to be the tenant of the premises in question, has filed this revision petition. The respondent herein is the landlord. The parties hereinafter will be referred to as tenant and landlord respectively.
2. The landlord filed a petition under Section 10(2)(i) of Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, hereinafter referred to as 'the Rent Control Act' against the tenant on the sole ground of wilful default in payment of rents, in the Court of Principal Rent Controller, Secunderabad. The learned Rent Controller allowed the said petition by order dated 3-10-1989. Being aggrieved by the same, the present petitioner-tenant filed an appeal in R. A.No.573 of 1989 in the Court of the Chief Judge, City Small Causes Court, Hyderabad. The said appeal being dismissed by the appellate Court, the present revision is filed.
3. The learned Counsel for the petitioner-tenant strenuously contended that the impugned orders of the courts below are wholly without jurisdiction. He submitted that in the instant case, there was no relationship of tenant and landlord between the petitioner and the respondent herein and in this view of the matter, it is not a matter for the authority under the Rent Control Act. He, therefore, submitted that the impugned orders are liable to be set aside.
4. On the other hand, the learned Counsel for the respondent-landlord submitted that the petitioner was the tenant under one Smt. P.Annapumamma and her sons and after the sale of the property in favour of the respondent herein Smt. K.Suguna Bai by registered sale deed dated 31-10-69, the petitioner herein is the tenant under her and he wilfully defaulted in paying the rents and, therefore, both the courts below have rightly ordered eviction of the tenant and there is no illegality or irregularity in the impugned orders. Thus, with these and among other grounds, he supported the orders of the Courts below.
5. In order to appreciate the rival contentions, I think it appropriate to state the brief facts of the case.
6. The respondent-landlord filed an eviction petition on the ground of wilful default in payment of rents. She contended that the original owners of the property in question were Smt. P.Annapurnamma and her sons and vide the certified copy of the sale deed, Ex.P-1, dated 31-10-1969, the property in question was conveyed to her and from 31-10-1969, she has been the landlord of the premises in question and she was entitled to rent. In those circumstances, she issued a registered notice, Ex.P-10, dated 17-11-1984, for which the tenant issued a reply under Ex.P-11, dated 5-12-1984 denying that he was a tenant under the respondent-landlord and therefore, he is not liable to pay the rent to her from 31-10-1969. The landlord further stated that the original owners attorned the tenancy in her favour and in spite of that, the petitioner-tenant did not pay the rent. Therefore, he is a wilful defaulter Under Section 10(2) (i) of the Act.
7. The petitioner-tenant filed a detailed counter denying the jural relationship of tenantand landlord between him and the respondent herein. He denied all the allegations made in the eviction petition and submitted that he was the absolute owner of the premises in question and, therefore, the question of paying rent to the respondent landlord did not arise. He further submitted that his father Sri T.V.Pandurangam, after his retirement from the Railway Department, wanted to purchase the property in question and, therefore, he entered into an agreement of sale, dated 11-5-1956 with the vendors of the present respondent-landlord by name Smt. P.Annapurnamma and her sons. According to him, agreement of sale was executed by Smt. Annapurnamma and her sons in favour of his father for a consideration of Rs. 5,000/- out of which a sum of Rs. 3,000/- was paid to Smt. Annapurnamma and her sons on 11-5-1956 vide Ex. R2 and the balance sale consideration was agreed to be paid on the date of registration, but Smt. P.Annapurnamma and her sons did not come forward to execute the sale deed in their favour. He further submitted in his counter that Smt. Annapurnamma had issued a legal notice dated 9-9-1963 and for that, his father gave a reply Ex. R-10, dated 23-9-'63 through his lawyer, who is examined as R.W. 2 in the case, stating that his father Pandurangam had purchased the property under agreement of sale and it was only the said Annapu mamma who had not executed any sale deed. The tenant further submitted that neither his father was tenant under the said Annapurnamma, nor after her death, the petitioner is the tenant under the present respondent. Thus, he contended that there is no relationship of tenant and landlord between them. He further submitted that even otherwise, he has perfected his title by adverse possession.
8. The respondent-landlord examined herself as P.W.I and P.W.2/Sri A. Madhusudhana Rao. The petitioner-tenant examined himself as R.W.I and also examined Sri Sreerama Murthy, an advocate, as R.W.2. The landlord marked Exs P-1 to P.11 and the tenant marked Exs. R-1 to R-11.
9. On the basis of the material on record, the Rent Controller allowed the petition filed by the landlord and ordered eviction of the tenant on the ground that the tenant committed wilful default in paying the rent. The same was confirmed by the appellate Court. Hence, the present revision is filed by the tenant.
10. The learned Counsel for the petitioner tenant mainly contended that the landlord has not established the jural relationship of tenant and landlord between them and, therefore, the Rent Controller had absolutely no jurisdiction to entertain the petition for eviction. He further submitted that earlier, the landlord had filed a suit against the tenant in S.C.No. 963/70 on the file of Addl. Chief Judge, City Small Causes Court, Hyderabad, for arrears of rent and the said suit was withdrawn on the ground that the tenant has filed a written statement denying her title and also the alleged tenancy. He submitted that without filing a regular suit, the present proceedings are initiated under the Rent Control Act. Since there is no jural relationship of tenant and landlord between the parties herein, the Rent Control Court could not have entertained the present case.
11. On the other hand, the learned counsel for the respondent-landlord contended that the petitioner herein was the tenant under Smt. P. Annapurnamma and after the sale of the property to the respondent- landlord, he is the tenant under her right from the year 1969. Therefore, the contention of the tenant cannot be accepted. He further submitted that both the courts below have given concurrent finding of fact and the same does not call for interference Under Section 22 of the Rent Control Act.
12. From the contentions of the learned Counsel appearing on both sides, one question the lower Court had to decide was, whether there was such jural relationship of landlord and tenant between the parties. But on the other hand, both the courts below framed the point for consideration to the effect "Whether the denial of title of the landlord by the tenant of the premises in question was bona fide or mala fide and whether the tenant committed wilful default in paying the rents amounting to Rs. 9,200/- at the rate of Rs. 50/- per month from July, 1969 to October, 1984,"
13. From the points raised itself, it is clear that both the courts below are proceeding with the assumption that the petitioner herein has admitted that he was a tenant regarding the premises in question. In fact, the lower appellate Court at paragraph-7 of the Judgment states that:-
"It is also admitted that late T.V. Purushothan father of the respondent obtained the demised premises on lease from Smt. Annapurnamma on a monthly rent of Rs. 50/-."
But both from the pleadings and evidence on record. I find that there is absolutely no such admission. On the contrary, there is a denial on the part of the tenant that either his father was a tenant under Annapurnarnma or the present tenant was the tenant under the present landlord. Further, the case of the tenant was that his father was a purchaser under an agreement and he was the absolute owner and after his death, he has become the absolute owner. Neither Annapurnamma and her sons nor the present respondent was the landlord. The tenant contended that he is entitled to protection Under Section 53-A of Transfer of Property Act and he had also perfected his title by adverse possession. But the Courts below proceeded on the premise that the tenant admitted the ownership of Annapurnamma and her sons and the agreement of sale pleaded by him was not proved, and the consequences of which, would be that the tenant admitted the ownership of Smt. Annapurnamma and also the ownership of Smt. K. Suguna Bai, respondent-landlord, Since Smt. Annapurnamma sold the premises in question in favour of the respondent- landlord under EX.P-1. Since the tenant did not prove his case of purchase under Ex. R-2, he is considered to be the tenant till he establishes his title for the demised premises. To quote the lower appellate court from Paragraph-11 of the Judgment: -
"From Exs. P-l to P-9, we could safely conclude that the petitioner established her title for the demised premises. The evidence on behalf of the respondent (tenant) is wholly insufficient to conclude that there are bona fides on his part to deny the title of the petitioner. He is construed to be as a tenant till he establishes his title for the demised premises by a proper Civil Court. The point raised is answered against the tenant/ appellant and in favour of the landlord/respondent."
This proposition of the lower appellate Court is totally untenable. It is not Law that whenever the landlord establishes title and the tenant fails to prove the title pleaded by him, such a person shall be construed to be a tenant under the landlord. When the alleged tenant failed to prove his own title, it does not mean that he was a tenant under the owner. His possession could be in any other capacity like a mortgagee or a licensee or even a person in adverse possession. At the most, she can say that the landlord, prima facie, proved her title. Ex. P-l is the certified copy of the sale deed (original is not produced on the ground that the same has been displaced). Ex. P-5 is the tax receipt. Ex. P-6is the letter issued to the Secunderabad Contonment Board for mutation of the name of the respondent landlord on the basis of Ex.P-1. Exs P-l. Exs. P-7 and P-8 are tax receipts showing that the landlord paid tax. Ex.P-9 is the Certificate of Encumbrance. The other documents are letters and notices. But the respondent- landlord has not filed any rent receipts. No other document like lease deed is filed to show that the present petitioner was the tenant under her, except her oral testimony that when she purchased the premises in question from Smt. Annapurnamma and her sons, the said Annapurnamma orally attorned the tenancy in her favour. No notice was issued to the petitioner-tenant in 1969, intimating about the sale deed dated 31-10-1969 (Ex.P-1) and calling upon him to attorn the tenancy in favour of the landlord. The landlord examined P.W.3 an Advocate, who was admittedly her relative, only to show that Smt. Annapurnamma attorned tenancy in favour of the present landlord. But this fact has been assailed in the cross-examination.
14. On the other hand, the tenant, himself, examined as R.W.I, stated that neither his father was the tenant nor he was the tenant under the landlord. He examined R.W.2 an advocate to prove Ex.R-10, a reply notice dated 23-9-1963 to the notice got issued by Smt. Annapurnamma through her counsel. In that reply notice, the petitioner's father contended that he was the purchaser under Smt. P. Annapurnamma. R.W.2 states that on the instructions of the tenant's father, he had given that reply in 1963.
15. From the above material, it is clear that there is no clinching evidence on the part of the landlord to establish that the present petitioner was tenant under her. The Courts below did not advert to this aspect at all even though in the reply notice and also in the counter, the tenant specifically stated that there was no relationship of landlord and tenant between them. Having regard to this specific stand taken by the petitioner-tenant, that he was not a tenant regarding the premises in question, the first question that the Courts below should have decided was, whether there was such a jural relationship of landlord and tenant between the parties. On the other hand, they raised a point, whether the denial of title by the tenant was bona fide, presuming that the petitioner had admitted to be the tenant under the respondent-landlord. Under the proviso to Section 10 of the Rent Control Act, it is specifically provided that whenever a tenant denies title of the landlord, if such a denial was bona fide, it was incumbent on the part of the Rent Controller to direct the landlord to approach the Civil Court to establish her title and seek eviction of the tenant.
16. Having regard to these circumstances, I am of the opinion that it is not a case falling under proviso to Section 10(1) of the Rent Control Act, because Section 10(1) proviso of the Act applies when a tenant denies the title of the landlord. Section 10(1) of the Act reads as under:-
10. "Eviction of Tenants:- (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13:
Provided that where the tenant, denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease, or that the claim is unfounded.
"Tenant" has been defined Under Section 2(ix) of the Act as under:-
"Tenant" means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter of a deceased tenant who had been living with the tenant in the building as a member of tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house or of rents for shops has been framed out or leased by a local authority."
'Landlord' has been defined Under Section 2(vi) of the Act 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 the rent, if the building were 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."
17. In the instant case, absolutely there is no iota of evidence to show that at any point of time either under the original owner Smt. P. Annapurnamma or under the present landlord, any rent was paid to the owners of the demised premises either by the present petitioner-tenant or by his father. No rent receipts or lease deed are produced to show that the petitioner was the tenant as stated above; nor there is any clinching material to this effect, right from the year 1956, for nearly 39 years. Even otherwise, P.W. 1 simply stated that the petitioner tenant's father was tenant under Smt. Annapurnamma and after the purchase, the petitioner is the tenant under the respondent-landlord, which was denied by the petitioner-tenant. It is a case of oath against oath and no positive decision can be given on this oral testimony.
18. The petitioner-tenant has produced Ex. R-2, though it is not an agreement of sale but a receipt executed by the son or Smt. P. Annapurnamma in the year 1956. It is an admitted case that right from the year 1956, earlier the tenant's father was in possession and after his death, the petitioner-tenant was in possession. It cannot be believed that for nearly 39 years, the petitioner-tenant and his father were the tenants in the premises in question without paying any rent. Therefore, prima facie, it is not established that the petitioner has been the tenant over the demised premises, and as such he cannot be said to be a tenant denying the title of the landlord in terms of the proviso to Section 10(1) of the Rent Control Act. Assuming for the sake of argument that he is a tenant, it would be a case of bonafide denial of title of the landlord, by tenant under that Section. Even otherwise, it is an admitted case of the landlord that she filed a suit in S.C. No. 963 / 70 for arrears of rent against the petitioner-tenant and when the tenant filed a written statement denying her title, she withdrew the same. It is worth to notice that the order of the Court that was ultimately passed in the said suit on 10-1-1972 reads as under:-
"The plaintiff's advocate says that the plaint may be returned for presentation before the proper court, as a plea questioning the title was raised in the written statement, and this court is not competent to decide the questions of title. Hence, the plaint is returned for presentation before the proper court."
From this fact itself, it is clear that the title of the respondent-landlord has been questioned in the year 1972 itself. Instead of filing the suit for declaration of title, she has filed the present eviction petition Under Section 10 of the Rent Control Act. As observed by me above at least, it would be a case of tenant denying the title of the landlord bona fide in terms of proviso to Section 10(1) of the Rent Control Act. In that event also, it is the duty of the authorities under the Rent Control Act, to direct the landlord to approach the civil Court. Viewed from any angle, it is clear that the present proceedings Under Section (sic) of the Rent Control Act are, prima facie, without jurisdiction.
19. This is a revision petition filed (sic) 22 of the Rent Control Act and this Court has wider jurisdiction than under (sic) 115 C.P.C. as held by the Supreme Court in M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, and Helpep Gipdharbhai v. Saiyed Mohmad Mirasahee Kadri and Ors., . To the same effect is the decision of this Court in Pali chetty Latchanna v. Giduthupi Apparao, . According to the principles declared in the above decisions, the jurisdiction of this Court Under Section 22 of the Rent Control Act is not as wide as that of an appellate Court, but at least it is wider than the jurisdiction under Section 115 of C.P.C., Since the question involved is one of jurisdiction and that jurisdiction the authorities get only if it is established that there is a relationship of landlord and tenant. I have considered the evidence only for a limited purpose. Infact, both the courts below did not advert to this aspect at all inspite of specific plea raised by the tenant in the counter. However, the learned Counsel for the respondent- landlord relied upon Tej Bhan Madan v. II Addl. District Judge and Ors., in support of his contention that the tenant is estopped to deny the title of the landlord. But in the instant case, it is not prima facie established that the present petitioner-tenant's father or the petitioner was the tenant under the landlord. In that view of the matter, the said decision also does not apply to the facts of this case nor Section 116 of Transfer of Property Act applies.
20. For the reasons stated above, the revision petition is allowed and the orders of both the Courts below are set aside and the eviction petition is dismissed with a liberty to the respondent herein (landlord) to approach the civil Court for seeking eviction and possession from the present petitioner- tenant by establishing her title according to Law. This order shall not be taken as having expressed any opinion on the merits of the case. Whatever the consideration I have made is only for the purpose of finding out, whether the Rent Control Court has got jurisdiction to entertain the present proceedings. The contentions of both the parties regarding the merits of the case are kept open. In the circumstances of the case, parties shall bear their own costs.