Andhra HC (Pre-Telangana)
S. Saraswathi vs Y. Laxminarayana on 30 September, 2004
Equivalent citations: 2004(6)ALD161, 2004(6)ALT95
JUDGMENT D.S.R. Varma, J.
1. Heard both the Counsel and also Sri V.L.N.G.K Murthy, amicus curiae.
2. The unsuccessful plaintiff before the Court below in a suit for declaration of title and perpetual injunction, is the appellant herein.
3. For convenience, the parties are referred to as arrayed in the suit.
4. The plaint averments in brief are that the plaintiff was the owner of the house bearing Nos. 12-1-1486 and 12-1-1455, in a total area of 320 sq. yards situate at Shantinagar, North Lalaguda, Secunderabad; that originally Plot Nos. 179 and 181 in Sy.No. 222 totally admeasuring 320 sq. yards was allotted to one Mr. Kistiah; that on 10.1.1976 the plaintiff purchased the said plots and extent for a consideration of Rs. 15, 000/- under notarized sale deed; that in the said notarized sale deed, it was agreed by both the parties that after some time a regular sale deed duly registered will be executed; that thereafter the vendor Mr. Kistian died without executing sale deed; that ever since the date of purchase, the plaintiff had been residing in the four rooms and open place; that she has been paying water, electricity and other Municipal Taxes; that the plaintiff has also been paying various other taxes and; that she held ration card.
5. It is further averred that the defendant filed RC No. 135/1994 on the file of Principal Rent Controller, Secunderabad, making the husband of the plaintiff as a party tenant. The matter was contested by the husband of the plaintiff and eventually the rent control proceedings ended in favour of the defendant. The appeal filed in R.A. No. 410/1995 also went against the plaintiff and thereafter in the revision in C.R.P. No. 218/1999 the husband of the plaintiff lost the case. The ultimate result was that the defendant was declared as landlord and the husband of the plaintiff as tenant. In other words, the jural relationship of landlord and tenant between the defendant and the plaintiffs husband had been finally concluded in the rent control proceedings. The further averment of the plaintiff is that her husband did not disclose the earlier rent control proceedings and she came to know about the said proceedings only when the defendant was going to execute the order against the husband of the plaintiff with regard to the suit schedule property. Hence, the present suit came to be filed seeking declaration of title over the suit schedule property.
6. The defendant filed written statement contending inter alia that late Kistiah was never the owner of the plot. The certificate issued by the S.C. S.T., B.C. and weaker sections association or notarized documents were not recognized for property affairs. Originally the sister of the plaintiff was the tenant of the suit schedule premises and on her recommendation two front rooms were let out to the husband of the plaintiff. Further the defendant denies the plaint averment that the plaintiff got electrical connection in 1976 and that her husband deposed in the earlier rent control Proceedings in Rc.No. 135/1994 that he had been paying electrical charges in the name of the defendant only. It is stated that mere appearance of the name of the plaintiff in the electoral rolls is not conclusive. It is further stated that there is nothing unusual that the names of the tenants living in a particular house would also appear in the electoral rolls. It is further contended that appearance of the names in the ration cards does not confer any title or ownership on the tenants. Further the defendants relied heavily on the earlier rent control proceedings, appeal and consequential orders passed in CRP No. 218/1999. It is further averred that pursuant to the conclusion of the rent control proceedings, and in obedience to the final orders thereof, rent due was Rs. 25, 000/- and only part of rent of Rs. 6, 000/- was deposited at the time of filing of appeal in R.A. No. 410/1995 by the husband of the plaintiff.
7. Upon the above averments, the Trial Court framed the following issues:
1. Whether the plaintiff is the owner and possessor of the suit property ?
2. Whether in earlier proceedings under Rent Control Act it was held that the plaintiffs people are not owners and possessors of the suit premises and were asked to vacate? If so, what are the consequences of the same?
3. Whether the plaintiff is entitled for any declaration and injunction?
4. To what relief ?
8. In support of the case of the plaintiff, the plaintiff examined herself as P.W.1 and examined one P. Babu Rao as P.W.2 and one Anjaiah as P.W.3 and relied on Exs. A-1 to A-30. On behalf of the defendant, the defendant was examined as D.W.1 and D.Ws. 2 to 4 were also examined and Exs. B-1 to B-16 were marked.
9. The Trial Court insofar as Issue Nos. l to 3 are concerned, made a comprehensive discussion and eventually held that the plaintiff was not entitled for the relief of declaration and injunction. In order to arrive at such a conclusion, the Trial Court had taken into account the earlier rent control proceedings and the appellate and revisional proceedings, in which the husband of the plaintiff was declared as tenant and eviction was ordered.
10. The Trial Court further observed that the plaintiff in her cross-examination admitted that she handed over possession of two rooms to the defendant as per the orders of the Rent Controller in connection with the execution proceedings that have been initiated pursuant to the decree passed in R.C. No. 135/1994. In addition to the reliance placed on the earlier rent control proceedings, the trial Court further went into the aspect of inconsistent pleas of the plaintiff i.e., on the one hand the alleged purchase from one Kistiah under notarized sale deed dated 10.1.1976 and on the other hand the plea of perfecting the title by adverse possession.
11. Having regard to the above plaint averments and the findings of the Trial Court, the following points would arise for my consideration in the appeal:
1. Whether the earlier rent control proceedings and the result thereof would operate as res judicata for filing of the present suit ?
2. Whether the plaintiff could successfully prove that she had title over the suit schedule property, if so, what relief?
12. Point No. 1: As regards this point, the learned Counsel for the appellant placed heavy reliance on the judgment of the Apex Court in Life Insurance Corporation of India v. M/s. India Automobiles and Co., , wherein it was held that the findings in the rent control proceedings on the question of title is not final and conclusive and will not operate as res judicata. The relevant portion of the judgment at Paragraph No. 23 is extracted as under for ready reference:
" We are concerned with the jurisdiction of a Civil Court. The extensive jurisdiction conferred on Civil Courts under Section 9 of the Code of Civil Procedure should not be curtailed without a specific statutory warrant or except on some clear principle. There is nothing in the Tamil Nadu Rent Control Act which, in any way, takes away, or narrows down, the Civil Court's jurisdiction as, for example, there is in the Delhi Rent Control Act (S.50). As to principle, whether we look at it on the analogy of res judicate or adopt the approach of Sri Iyer as to whether the order in the earlier proceedings is to be treated as an order that is null and void or merely one that is valid until set aside, the answer has to turn on the true nature and scope of the jurisdiction conferred on the Rent Controller under the Act. Is it possible, we have to ask ourselves, having regard to the context, scheme and terms of the Legislation, that the statute could have envisaged the Rent Controller (and the authorities to whom appeal or revision could be preferred from his orders) to be final authorities to adjudicate on issues of title also? The answer, in our opinion, has to be in the negative".
13. In the same paragraph it was further held as under:
"....It will not be open to the Civil Court to re-determine the rent payable by the tenant to the landlord because that is a matter squarely and exclusively within the jurisdiction of the Rent Controller and, therefore, impliedly excluded from the purview of the civil Court. But his decision is not final on the issue that opens up his jurisdiction and cannot preclude an owner from contending, in a civil Court, that he should not be asked to pay rent for his own property to some one else."
14. From the above legal position in this regard it is very clear that the jurisdiction of the Rent Controller under the Rent Control Act is limited and distinct with that of the jurisdiction of the civil Court. The issue of title cannot be gone into by the Rent Controller. In other words only important aspect that can be gone into by the authority under the Rent Control Act is to determine as to whether there was any jural relationship of landlord and tenant between the parties and other consequential reliefs, or the reliefs permissible under that the Rent Control Act, but not with regard to the dispute of title. It is only the Civil Court that has got jurisdiction to go into the issue of title.
15. Therefore, in view of the above judgment of the Apex Court, the Point No. l is answered in favour of the appellant and consequently I am to hold that the trial Court was in error in taking into account among other aspects the aspect of determination of dispute before the Rent Controller, in order to hold that the plaintiff was not entitled for the relief of declaration of title. But it cannot be forgotten that the Trial Court has also gone into other aspects also.
16. Point No. 2: In this connection it is to be seen that the prime contention of the plaintiff was that she purchased the suit property under notarized sale deed dated 10.1.1976 from one Kistiah. The basic and established principle is that the notarized sale deed cannot be treated as valid document in order to establish the sale transaction and such a document is not admissible in evidence at all and accordingly the contents therein cannot be relied upon for the purpose of arriving at a conclusion regard the transfer of title.
17. It is to be remembered that the plaintiff while seeking for the relief of declaration of title had heavily relied on Ex.A-24, which is already held as inadmissible and also not capable of establishing the transfer of the property, so as to create title in favour of the plaintiff.
18. It is to be further noted that Ex. A-24 is not a registered document. Therefore, such an unregistered sale deed does not confer any title on the purchaser. In this connection it is very pertinent to note that in the plaint itself the plaintiff averred that she purchased the property under notarized sale deed on 10.1.1976 with a condition that both the parties agreed to execute regular sale deed after some time. The further conspicuous aspect is that no time was mentioned, as to within what time a regular sale deed would and should be executed.
19. It is further averred in the plaint that the said Kistiah died at a later point of time - even before executing regular registered sale deed. Till such time, no proceedings were initiated against the alleged vendor Kistiah, for execution of regular sale deed. When did Kistiah died is also not clear. Even if the said Kistiah died without executing the registered sale deed, the plaintiff ought to have initiated proceedings against the legal representatives of the said Kistiah, if any. No. such steps have obviously been taken since 1976 till the date of filing of the suit. Therefore, merely on the basis of the notarized sale deed, which is inadmissible in evidence, particularly for the purpose of seeking relief of declaration of title, the claim of the plaintiff cannot be sustained.
20. It is well established legal proposition that a person who claims declaration of title, to prove the title, onus heavily lies on such person alone. As already pointed out, Ex.A-24 i.e., notarized sale deed is the only document on which the plaintiff relied on to trace her title, which cannot be accepted, let alone the establishment of the title of Kistiah. The net result is that the plaintiff utterly failed in establishing the title of the said Kistiah or her title through Kistiah and the basic document i.e., Ex.A-24, in order to prove her title. Ex.A-24 cannot be a valid document and at best such document can be treated as an agreement of sale. Even assuming that it is an agreement of sale, the same will not confer any title on the plaintiff, unless, as stated in the plaint itself, a registered sale deed is executed as agreed between the plaintiff and the said Kistiah.
21. Further the plaintiff relied on other documents namely Exs.A-1 to A-23, the details and the nature of those documents are not really worth mentioning. But however some of the documents, which may be relevant are the tax receipts of the year 1992, property tax receipts, the school certificate of the daughter of the plaintiff, electoral cards. At best these documents would show possession of the plaintiff in the suit schedule premises, but, in what capacity - is yet another question. They might be useful only in order to show possession. The settled principle of law is that entries in revenue or municipal or other records are not conclusive to prove title. As already noticed, in the rent control proceedings, the husband of the plaintiff and the defendant were declared as tenant and landlord. Now the plaintiff has to prove her title independently, notwithstanding the decisions rendered in the rent control proceedings and as already pointed out, the plaint pleadings and the evidence on record and the most important and crucial document in order to trace the title of the plaintiff being Ex.A-24, which is totally inadmissible, do not help, in any manner, the plaintiff in order to prove her title.
22. The other averment in the plaint is that the plaintiff has been in possession since 1976 from the date of purchase from Kistiah and as the plaintiff has been in possession of the suit schedule property for the last twenty-three years, the plaintiffs right and title is protected under the law of adverse possession.
23. In this connection at the outset it is to be noticed that this contention of the plaintiffs runs contrary to her other contention that she purchased the property under Ex. A-24 notarized sale deed. As already pointed out and noticed from the plaint averments that even as per Ex. A-24 it was agreed by both the parties i.e., by plaintiff and Kistiah, that a registered sale deed would be executed at a later date after some time. This contention would essentially drive this Court at a conclusion that the plea of adverse possession is not at all available. The ingredients for the claim of adverse possession are that the possession" shall be continuous, open, peaceful and with animus to acquire the title against the true owner. The said ingredients are totally missing in the present case.
24. By virtue of the admitted agreement with regard to execution of registered sale deed at a later point of time pursuant to Ex.A-24, the imperative conclusion is that the possession, if any, of the plaintiff would only be permissive.
25. At the cost of repetition as already noticed, the plaintiff is claiming her title through Kistiah and his title could not be established and, consequently the title of the plaintiff also could not be established.
26. Further in order to take the plea of adverse possession, the said averment and the date of commencement of said possession must be clearly indicated in the plaint averments. But the said plea is totally missing in the plaint.
27. If summed up, the plea of adverse possession is demolished by the earlier averment that she purchased the suit property from one Kistiah under Ex.A-24, which is a notarized sale deed with a further agreement that the registered sale deed would be executed at a later point of time and as there was no such sale deed, the plaintiff had miserably failed to prove her title.
28. Therefore, having regard to the above discussion, this Court has no other option except to hold that the plaintiff failed to establish the title and the point in this regard is answered in favour of the defendant and against the plaintiff.
29. For the foregoing reasons, the appeal is liable to be dismissed and accordingly dismissed with costs.