Andhra HC (Pre-Telangana)
G. Jaisurya vs Harishanker Sanghi And Anr. on 14 September, 2006
Equivalent citations: 2006(6)ALD13, 2006(6)ALT61
ORDER V. Eswaraiah, J.
1. This civil revision petition is directed against the judgment dated 3-2-2003 passed in R.A.No. 249 of 1997 by the Additional Chief Judge, City Small Causes Court, Hyderabad.
2. Petitioner is the landlord and the respondents are the tenants in R.C.No. 266 of 1994 on the file of the Additional Rent Controller, Secunderabad filed by the landlord seeking eviction of the tenants on the grounds of wilful default in payment of rents and for the purpose of bona fide commencement of business under Sections 10(2)(i) and 10(3)(a)(iii)(b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 for short 'the Act.
3. Initially the learned Rent Controller allowed the said eviction petition by order dated 9-6-1997 on the ground that the claim of permanent tenancy by the tenants is not bona fide and therefore, they are liable to be evicted on the ground mala fide claim of perpetual lease. Against the said order the tenants preferred an appeal in R.A.No. 249 of 1997 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad and the appellate Court by judgment dated 27-02-2001 dismissed the appeal confirming the order of the learned Rent Controller. Aggrieved by the saidjudgmentthe tenants filed CRP. No. 1717 of 2001 on the file of this Court and this Court byorderdatedi 1-12-2001 remitted the matter to the appellate Courtforthe purpose of giving opportunity to the parties to let in further evidence with regard to the genuineness of Ex.R-6 based on which permanent tenancy has been claimed as both the Courts below had not appreciated the matter on the specific ground i.e. the raising of the ground of permanent tenancy in proper perspective. Pursuantto the orderof this Court theappellate Court considered the matter afresh and by impugned order dated 03-02-2003 in R.A.No. 249 of 1997 held that Ex.R-6 has been executed by the father of the landlord stating that it is permanent lease and there is no mala fide intention with regard to the claim of permanent tenancy in view of Ex.R-6 being executed by the father of the landlord. Therefore, there is bona fide intention on the part of the tenants in claiming permanent tenancy and accordingly the appeal was allowed setting aside the order of the learned Rent Controller. Thus, aggrieved by the said judgment the landlord filed this revision petition.
4. The landlord is hereinafter referred to as the petitioner and the tenants are hereinafter referred to as the respondents.
5. It is the case of the petitioner that he is the owner of the premises bearing No. 2-1 -65 & 66 and the respondents are the tenants on a monthly rent of Rs. 225/-. There is no dispute with regard to the relationship of the landlord and the tenants. The eviction petition has been filed on the ground of wilful default in payment of rents and bona fide requirement of the said premises for the purpose of commencing their family textile business as the petitioner does not have any other business or avocation. It is stated that he was having sufficient experience and also funds to start his own business but as he did not have any other place except the schedule premises he had bona fide requirement of the schedule premises to commence the business.
6. The eviction petition was filed in 1994 and after receipt of summons the tenants filed a counter in April 1995 claiming permanent tenancy and therefore, the landlord got amended his eviction petition as per the orders in I.A.No. 399of 1995 dated24-11-1995 taking a plea in Para 5(a) as follows:
The respondents herein have falsely claimed that they are entitled for perpetual lease, which is incorrect. The respondents are not entitled for perpetual lease, as the property in question was not leased out perpetually. The allegation that the petitioner's late father had that the property was let out perpetually is incorrect and on this ground also the respondents are liable to be evicted.
7. It is the case of the respondents/tenants that the father of the petitioner i.e.G. Eshwara Rao, granted tenancy in favour of the respondents by a written agreement dated 22-7-1980 under Ex.R-5 and though the said Eshwara Rao did not die at the time of filing the eviction petition he is shown as Late G. Eshwara Rao. As per the original rent agreement the agreed rent was Rs. 225/- per month and in 'December 1994 fresh terms of tenancy were settled with the lessor and the same have been acted upon with effect from 1-12-1994 (sic. 1984). As per the said terms of fresh tenancy the rent payable was Rs. 275/-per month and the petitioner being the son of the original lessor-G. Eshwara Rao is collecting the rents. The respondents filed a Xerox copy of the rent agreement dated 22-7-1980 and a Xerox copy of the agreement Ex.R-6 dated 1-12-1984. It is stated that G. Eshwara Rao received Rs. 10,000/- from the respondents declaring that he has leased out the said premises perpetually meaning thereby that the respondents shall have right so long as they require the premises on payment of rent as stated therein and that the lessor will not claim eviction. The petitioner now claimant under the original lessor is equally bound by the said terms of the agreement. Therefore, the petition is liable to be dismissed.
8. It is stated that there is no proof of death of G. Eshwara Rao, who left Hyderabad subsequent to December 1984 and his whereabouts are not known. It is stated that there are no arrears of rents much less wilful default in payment of rents. With regard to the allegation that the petitioner is without any business or avocation it is stated that the same is incorrect and untrue as the petitioner also filed some other RCs claiming eviction on' the ground of wilful default in payment of rents and on the ground of personal requirement. Therefore, the petitioner is not entitled to seek eviction on the ground of personal requirement.
9. It is further stated that as per Ex.R-5 rental agreement dated 22-07-1980 the tenancy is month to month and as per Ex.R-6 as long as the respondents enhance the rent by 2% for every 10 years they are entitled to continue to occupy the premises as long as they abide by the terms and conditions of the agreement.
10. Based on the aforesaid pleading the learned Rent Controller considered the following points:
1. Whether the petitioner's requirement of the suit premises is bona fide?
2. Whether the respondents' claim of permanent tenancy in respect of the suit premises is bona fide?
3. To what relief?
11. The first point was not considered, as the entire contest of both the parties was with regard to the second pointalone. Therefore, it may not be just and proper to deal with the oral and documentary evidence with regard to the first point.
12. The petitioner was examined as P.W.1 and marked Exs.P-1 and P-2. The first respondent was examined as R. W. 1 and the witness of Ex.R-6 receipt dated 1-12-1984 was examined as R. W.2 and Exs.R-1 to R-31 were marked on behalf of the respondents. Except Exs.R-1 to R-6, Exs.R-7 to R-31 are not relevant to consider the second point as all those documents were filed to prove that the said premises is not bona fidely required by the landlord for commencement of business.
13. Petitioner, examined as P.W.1, stated that he i$ the owner of the premises bearing No. 2-1-65 & 66 situated at Tobacco Bazar, Secunderabad and the respondents are the tenants since 1982 at monthly rent of Rs. 225/-. The father of the petitioner left the house during the second week of November 1984 and since then his whereabouts are not known and they have made a complaint to the police about his missing and till to-day i.e. when the petitioner was examined on 14-7-1995, he was not traceable. His father never entered into any agreement with the respondents for permanent lease and he never received Rs. 10,000/- towards advance of rents from the respondents in the year 1984. His family is assuming that his father is not alive and he is the owner of the said premises. His father was issuing rent receipts to the respondents. He identified the signature of his father on Ex.R-1 rent receipt. It is stated that his father never collected a sum Rs. 10,000/-under the receipt dated 01 -12-1984 from the respondents and his father never signed the said receipt. His father never gave the premises for lease on permanent basis. He is aware of Ex.R-5 rental agreement dated 22-07-1980 executed by his father.
14. The first respondent, examined as R.W.1 on 12-03-1996, stated that he is the tenant pursuant to Ex.R-5 rental agreement dated 22-07-1980 and the rent payable was Rs. 225/- per month. When another rental agreement dated 01 -12-1984 was sought to be marked on behalf of R.W.1 the counsel appearing for the petitioner objected for marking the same as the said document created perpetual lease. However, the said document was marked on behalf of R.W.1 as Ex.R-6 only for collateral purpose with regard to wilful default in payment as to whether the advance amount was received or not under Ex.R-6 rent receipt. It is stated by R. W. 1 that the petitioner is his landlord and he has seen the original landlord - G. Eshwara Rao, on 07-12-1984 and he is in occupation of the said premises from 1980 and he cannot read and write in English and Ex.R-6 was issued to him on 01-12-1984 and the same contains the signature of the original landlord. It is stated that para 9 of the counter filed by them contains as to perpetual lease and lease continued at the option of the lessee. Ex.R-6 is attested by R.W.2 and also another person. Under Ex.R-6 he advanced an amount of Rs. 10,000/- and agreed to enhance the rent from Rs. 225 to Rs. 270/-. Ex.R-6 is the lease agreement-cum-receipt. The said amount was adjusted towards the rents. Ex. R-6 is marked for collateral purpose.
15. After the matter was remanded by the High court, the appellate Court examined R.W.1 on 04-09-2002. He stated that he had sent Ex.R-6 to the handwriting expert and gave the original receipts, which contain the signature of Eshwara Rao; he found those receipts during the cleaning of Deepavali Festival; Ex.R-33 contains five receipts and Ex.R-34 is the handwriting expert opinion. It is stated that Eshwara Rao signed Ex. R-6 before him. He does not know the contents of the handwriting expert opinion in Ex.R-34 as he does not know English.
16. R.W.2 stated that he signed Ex.R-6. It is stated that he did not remember the purpose for which it was executed on 01-12-1984. When he went to the shop of R.W.1 to purchase cloth, at that time, the person who collected the rents was already there. The person who was to receive money produced one document from his pocket and signed and money was paid. It is stated that he was asked to sign on the document as it was executed for long-term lease.
17. R.W.3 is the handwriting expert who gave opinion under Ex.R-34. It is stated that the first respondent had sent the certified copy of Ex.R-6 and five original receipts contained in Ex.R-33. He also examined Ex.R-5 rent agreement, vakalat etc., and prepared a detailed report under Ex.R-34 stating that the disputed document was signed by G. Eshwara Rao. In the cross-examination he stated that his opinion is based on the examination of Xerox copies of the questioned document received by him. Ex.R-34 is the report based on Xerox copy. Xerox copy is always produced through a mechanical process. He again voluntarily stated that on that day in the Court he compared the original document and extended his opinion. The enlargements were prepared by him in his laboratory. He admitted that examination of the original document renders the result a bit final. It is also admitted that if there is an error in the mechanical reproduction of the image in the preparation of the Xerox copy the possibility of certain errorcan not beruledout. lt is stated that he examined the original in the Court and found that the Xerox copy is a faithful reproduction of the document in original.
18. Exs.R-1 to R-3 are the receipts passed by the brother of the petitioner. There is no dispute with regard to rent agreement executed by the tenants in favour of the original landlord - G. Eshwara Rao. There is no dispute that Ex.R-5 contains the signature of G. Eshwara Rao. A perusal of Ex.R-5 rent agreement goes to show that the same was executed on 22-07-1980, the tenancy was for 11 months, agreed monthly rent was Rs. 225/-, the tenants had to bear the property and electricity consumption charges, it was not sub-let to carry out any repairs, the tenancy shall be in accordance with English Calendar month, the monthly rent had to be paid on or before first of each month and three months advance of Rs. 675/- was paid as security deposit. Ex.R-5 was also attested by two persons and R.W.2 is one of the attestors of Ex.R-5.
19. Ex.R-6 is the crucial document to decide the issue in this petition as to whether the permanent tenancy claimed by the respondents under Ex. R-6 is bona fideor not. Ex.R-6 was a typed receipt in English on a ruled paper taken from a register. It is just and properto reproduce the whole of Ex.R-6;
Received a sum of Rs. 10,000/- Rupees Ten Thousand Only from Sri Hari Shankar Sanghi S/o. Babulal Sanghi, aged about 52 years, Occ: Business and Sri Ramesh Chand S/o. Sri Hari Shanker Sanghi, aged about 24 years, Occ: Business, both are R/o.21 -1 -1888, Mamjumla Patak, Charkaman, Hyderabad towards rental advance in respect of mulgi bearing No. 2-1 -65 and 66 (Old No. 1570), Tobacco Bazar, Secunderabad, which was let out to them perpetually on a monthly rent of Rs. 225/- per month exclusive of Electricity charges with effect from today i.e. 1-12-1984 for a period of first 10 years and thereafter with enhancement of rent at 20% for the next 5 years and thereafter with enhancement of rent at 20% after completion of 5 years and the tenants are entitled to carry out repairs, additions or alterations or to reconstruct the mulgi if required by applying and obtaining necessary permission from M.C.H. at their expense only which is only deductable from the monthly rent and this agreement and understanding is binding on me, my heirs and successors.
Secunderabad Sd/-
Dated: 1-12-1984. G.EshwaraRao
Witnesses:
1. Sd/-by R.W.2
2. Sd/- by another
20. Ex.R-12 is one of the rental receipts passed on by G. Eshwara Rao towards monthly rent of November 1984 and the signature of Eshwara Rao on the revenue stamp, attached to the receipt, is continued even after the revenue stamp.
21. Perusal of Ex.R-34 goes to show that the expert examined and compared with the aid of lenses, magnifiers and such geometrical appliances, which are needed for the purpose of comparison, the Xerox copies of the said document. Only after the matter was remanded a bunch of the rent receipts issued by Eshwara Rao for the months of March 1982, April 1983, September '1980, June 1981 and October 1984 were filed, which are said to have been sent to the expert for comparison of signatures and the five receipts go to show that Eshwara Rao signed on the receipts and his signature starts before the revenue stamp and continues even after the revenue stamp. Whereas the signature in Ex.R-6 neither starts before the revenue stamps nor is continued after the revenue stamps but it is between the two revenue stamps. A close examination of the fixture of the revenue stamps absolutely goes to show that the said revenue stamps were removed and reaffixed.
22. The only crucial question that arises for consideration is as to whether Ex.R-6 is a genuine document or not. Admittedly Ex.R-6 was marked for collateral purpose with regard to the receipt of the advance amount of Rs. 10,000/-. No doubt, Rs. 10,000/- can be acknowledged on such a receipt but Ex.R-6 further goes to show that the said receipt creates a perpetual lease. When the original rent agreement executed by Eshwara Rao under Ex.R-5 dated 22-07-1980 goes to show that the tenancy is for 11 months only; agreed rent was Rs. 225/- per month; the tenants have agreed that they shall not damage the premises in any manner; they shall not sub-let and the landlord is entitled to inspect the said premises at all reasonable hours and the tenants shall not carry any repairs or alterations to the said premises without the consent of the landlord in writing, it is curious to note that under Ex. R-6 receipt the said premises was leased out to the tenants perpetually on the same monthly rent of Rs. 225/-on 01-12-1984 initially for a period of 10 years which shall be enhanced by 20% after completion of five years. Therefore, the said receipt creating permanent tenancy requires stamp and registration. That is the reason why the counsel for the petitioner objected for marking the said document. Therefore, the said document was marked only for collateral purpose as the landlord filed the eviction petition on the ground of wilful default. If the amount of Rs. 10,000/-is paid as advance, the question of wilful default does not arise. Therefore, with regard to the advance amount only Ex.R-6 was marked but not for the purpose of defence on the part of the tenants that the original landlord has created a perpetual lease.
23. In support of his contentions the learned Counsel for the petitioner placed reliance on the judgments of the Apex Court in Food Corporation of India v. Babulal Agrawal . S.K. Roy v. B.K. Collieries . and Sonoo v. Bhadaria AIR 1923 Nagpur 171.
24. It is clear from the aforesaid judgments that for creation of immediate right in any lease deed for more than one year it requires registration and therefore, the receipt under Ex.R-6 is not liable to be received in evidence for the purpose of the defence of the respondents that the landlord created a permanent tenancy.
25. It is not in dispute that a lease deed for more than one year or for any other longer period requires to be engrossed with sufficient stamps and requires to be registered. Agreement of lease for more than one year is liable to be registered under Section 17 of the Registration Act. Certain documents creating lease of immovable property from year to year or for any period exceeding one year requires to be registered compulsorily under Section 17(1)(d) of the Registration Act. If any document by itself is not creating any lease for more than one year and if any other document is executed creating a long lease that document also requires to be registered under Section 17(2)(v) of the Registration Act.
26. Under Section 35 of the Indian Stamp Act, 1899 the instruments not duly stamped are inadmissible in evidence. Admittedly, Ex.R-6 is not duly stamped as per Item 23 of Schedule I of the Stamp Act. Under Section 17(1)(d) of the Registration Act every lease of immovable property for more than 11 months requires compulsory registration. Under Section 49 of the Registration Act the document, which requires registration under Section 17 unless it has been registered, cannot be received in evidence. Therefore, the learned Rent Controller rightly received Ex.R-6 for collateral purpose with regard to wilful default in payment of rents as the tenants contended that they have deposited certain amounts as advance under Ex. R-6 but the same has not been received to prove that there was permanent tenancy. Therefore, I am of the opinion that Ex.R-6 cannot be looked into to consider the contention of the tenants that there was permanent tenancy.
27. Ex.R-6 was marked only for collateral purpose with regard to the receipt of the advance amount to deal with the contention as to whether there was any wilful default or not. If that be so, the respondents have set up a plea in the counter to let in evidence in support of their claim that a right of permanent tenancy has been created by the original landlord; if that claim of permanent tenancy is not bona fide it itself would constitute aground under the second limb of Section 10(2)(vi) of the Act for eviction. Under Section 10(2)(vi) if the tenant denies the title of the landlord or claims the right of permanent tenancy and if the said denial or claim was not bona fide the Controller shall direct the tenant to put the landlord in possession of the building.
28. In the instant case, the tenants claim right of permanent tenancy. In view of the aforesaid discussion, I am of the opinion that the said document is not at all a genuine document as the evidence of expert is based only on Xerox copy of Ex.R-6 and even otherwise one of the witnesses - R.W.2 has not confirmed the contents of Ex.R-6 as he stated that when he went to the shop of the landlord the said document was taken from the pocket of the person who collected the money and signed the same and received the amount. However, as the claim of permanent tenancy has been set up in Ex.R-6 the said document is not liable to be received in evidence and the same cannot be treated as permanent tenancy as no landlord would execute such a receipt, more so, when the previous rent agreement Ex.R-5 specifically states that the tenancy is for 11 months only and three months advance has been received and the tenants are not entitled to carry out any repairs or alterations but whereas Ex.R-6 receipt goes to show unilateral conditions written only on a ruled paper from a register stating that the landlord has let out the said premises to the tenants permanently on the same monthly rent of Rs. 225/- for a period of first 10 years and thereafter with enhancement of rent at 20% for the next 5 years and the tenants are entitled to carry out repairs, additions or alterations. Therefore, I am of the opinion that Ex.R-6 is not a genuine document and it cannot be said that the claim of perpetual tenancy by the tenants is bona fide.
29. In fact, the learned Rent Controller having considered Exs.R-5 and R-6 came to the conclusion that Ex.R-6 is only on a plain paper and it cannot be considered to be a formal document and there is one discrepancy, which casts serious doubt on the authenticity of the document. Though the signatures of G. Eshwara Rao on Exs.R-5 and R-6 appear similar, in Ex.R-6 the signature is confined to only on the two revenue stamps affixed there in and on a close examination of the two signatures it appears that apart of the signature is missing in Ex.R-6. This exhibit had been received only for the purpose of collateral evidence. Therefore, the plea of perpetual lease is not bona fide but the same has been taken with a mala fide intention.
30. On the earlier occasion the appellate Court in R.A. No. 249 of 1997 by order dated 27-02-2001 after considering the rival contentions with regard to the genuineness of Ex. R-6 when compared to Ex.R-5 held that by Ex.R-6 permanent tenancy has been created and under Ex.R-6 no rent has been enhanced and it is on a plain paper which cannot be considered to be a formal document and the signature on Ex.R-6 on two revenue stamps in Telugu is not clear as that of the signature on Ex.R-5. Ex.R-6 is titled as receipt and its contents were typed on a ruled paper. The signature on two revenue stamps is in small letters in Telugu. Basing on the physical features of Ex.R-6 to consider it to be a valid document under Section 53(a) of the Transfer of Property Act, 1883, it requires to be registered under the Indian Registration Act as a claim of perpetual tenancy has been created. Accordingly, the appellate Court came to the conclusion that Ex.R-6 is not a valid document and it is inadmissible in evidence and the claim of perpetual tenancy by the tenants is not bona fide.
31. Aggrieved by the same, the tenants filed CRP. No. 1717 of 2001. This Court by order 11 -12-01 while remanding the matter to the lower appellate Court made certain observations with regard to the genuineness or otherwise of Ex.R-6. Having considered several decisions of this Court and the Apex Court with regard to the power of the Court to compare disputed signatures with admitted signatures with or without expert opinion, this Court was of the opinion that it is always advisable to give opportunity to the parties to send such a signature to be examined by an expert. In fact, under Section 165 of the Indian Evidence Act, 1872, the Judge himself is having power to put question or order production if the facts and circumstances warrant him to do so. It was further held that both the Courts below had not appreciated the matter on the specific ground raised i.e. the raising of ground of permanent tenancy and the bona fide nature of raising such a ground in proper perspective and the findings recorded by both the Courts below on such insufficient material cannot be sustained in law. However, in the light of the peculiar facts and circumstances and especially in the light of the fact that the whereabouts of the alleged executant of Ex.R-6 are unknown for sufficiently long time, in the interests of justice the matter was remitted to the appellate Court for the purpose of giving opportunity to both the parties to let in further evidence in the light of the observations recorded supra.
32. There is no dispute that if the claim of permanent tenancy is not bona fete and faithful it is also a separate ground for eviction of the tenants under the second limb of Section10(2)(vi) of the Act as held by the Apex Court in Fatima Bee v. Mahamood Siddiqui . and J.J.Lal (P) Ltd v. M.R. Murali .
33. As already stated the tenants on their own had sent the Xerox copy of Ex.R-6 along with some other rental deeds to the expert for his opinion, who based on the said Xerox copy only gave his opinion. However, as discussed above Ex.R-6 was marked only for collateral purpose, as the same was not liable to be received in evidence, as the same requires stamp and registration. In the aforesaid facts and circumstances, Ex.R-6 cannot be treated as a genuine document in view of the comparative reading of the clauses of Ex.R-5 and Ex.R-6 receipt and admittedly, Ex.R-6 cannot be treated as a document creating permanent tenancy. However, when the said G. Eshwara Rao is not to be seen from 1984 onwards and the way in which his signatures are continued before and after the revenue stamps, Ex. R-6 cannot be treated as a genuine document. Therefore, I am of the opinion that the claim of permanent tenancy on the part of the tenants is not bona fide but on remand the lower appellate Court erroneously and without any justification came to the conclusion that the signature on Ex.R-6 is that of G. Eshwara Rao. It is nobody's case that the signature on Ex.R-6 is not that of G. Eshwara Rao but it is the case of the landlord that Ex.R-6 is not a genuine document and a false claim has been set up creating permanent tenancy as there is every likelihood of making use of signed revenue stamps in the said document. Aclose perusal of the admitted signatures go to show that the said G. Eshwara Rao used to draw a line beneath his signature but whereas on Ex. R-6 neither there is aline or dot or some continuance after the revenue stamps. Therefore, I am of the opinion that Ex.R-6 is not a genuine document and with a mala fide intention to claim permanent tenancy only Ex.R-6 has been brought into existence.
34. In view of the aforesaid facts and circumstances of the case, the judgment of the lower appellate Court in R.A.No. 249 of 1997 is set aside and the civil revision petition is allowed confirming the order of the Rent Controller ordering eviction. However, the tenants are granted three months time to vacate and hand over the vacant possession of the premises in favour of the landlord. There shall be no order as to costs.