Andhra HC (Pre-Telangana)
Mumtaz Ali Khan And Anr. vs Rupender Pershad And Anr. on 9 July, 1993
Equivalent citations: 1993(3)ALT466
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER Syed Shah Mohammed Quadri, J.
1. These three C.R.Ps are connected. The Petitioner in CRP. No. 2643/91 & 1732/89 is the tenant which relates to the same premises viz. Mulgi No. 5-4-171 situate at Murlidhar Bagh, Hyderabad, and the respondent therein is the landlord. C.R.P. No. 1798/89 relates to the premises bearing No. 5-4-176 situate at Muralidhar Bagh, Hyderabad, the petitioner is the tenant and the respondent is the landlord.
2. The facts in C.R.P. No. 1732/89 and 1798/89 are similar. I shall first refer to the facts in these two cases. The premises which are the subject-matter of these two petitions are non-residential premises. They were originally owned by one Raja Kanyaka Prasad. On his death his heirs divided the properties; consequently the premises which is the subject- matter of C.R.P. No. 1732/89 fell to the share of the respondent therein and the premises which is the subject-matter of C.R.P. No. 1798/89 fell to the share of the respondent in that C.R.P. Hereinafter the parties will be referred to as 'owner' and 'tenant'.
3. The owner filed eviction petitions against the tenant on the ground of wilful default in payment of rent for a period of ten months from October, 1974 to August, 1975. The tenants denied that there was any wilful default in payment of rent. During the pendency of the eviction petition, the tenants amended the counter raising the plea that the suit mulgi is an endowed property, hence the Court of the Rent Controller has no jurisdiction to entertain and try the petition, as such the eviction petition is liable to be dismissed with costs. On the ground that the said plea amounts to denial of title of the owners, the owner also amended the eviction petitions, with leave of the Court and added the ground of denial of title for eviction of the tenants. The parries went on trial. After considering the evidence on record, on 1-11-1984 the learned Additional Rent Controller allowed the eviction petition holding in favour of the owner on both the grounds. The tenants preferred appeals before the appellate authority, Chief Judge, City Small Causes Court, Hyderabad. On 28-6-1991, the appellate authority reversed the finding of wilful default, but confirmed the finding that denial of title of the landlord was not bona fide and accordingly ordered eviction by allowing the appeals. Against the said orders of eviction the petitioners filed C.R.P.Nos. 1732/89 and 1798/89.
4. The owner of the premises bearing No. 5-4-171 filed another eviction petition before the II Addl. Rent Controller under Section 10(2) (v)of the A.P. Buildings (Lease, Rent and Eviction) Control Act, (for short 'the Act') on the ground of non-user of the premises for two years. That petition was ordered by the learned Rent Controller on 5-8-1988. Aggrieved by the said order, the tenant filed R.A. No. 395/88 before the Additional Chief Judge, City Small Causes Court, Hyderabad. The appeal was dismissed on 28-6-1991. The correctness of that order is assailed in C.R.P. No. 2643/91,
5. Mr. C.R. Prathap Reddy, the learned Counsel for the petitioner in C.R.P. Nos. 1732/89 and 1798/89, tenant, contends that the plea taken by the tenant in the counter does not amount to denial of title of the landlord without bona fides, therefore both the courts erred in ordering eviction on that ground. Mr. A. Gopal Reddy, the learned counsel for the respondents, owner, on the other hand, contends that the tenant having amended the counter and taken the plea that the premises is endowed property filed an application before the Deputy Commissioner of Endowments and having lost there, pursued the matter in a Writ Petition before the High Court and thereafter in a Writ Appeal, as such it cannot but be said that the denial of title was not bona fide.
6. Section 10(2)(vi) of the Act which is relevant for our purpose is in the following terms:
"that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide"
7. From a perusal of the above excerpt of Section 10(2)(vi) it is clear that the denial of title of landlord or claiming a right of permanent tenancy when such denial or claim is not bona fide, gives a ground to the landlord to seek eviction of the tenant. It had already been noted above that both the original authority as well as the appellate authority held that the denial of title of the landlord by the tenant was not bona fide. This is a finding on a question of fact and in its revisional jurisdiction it is not open to this Court to interfere in this finding of fact. But, however, the contention is that the plea taken would not amount to denial of title. Sri Pratapreddy contends that when the tenant says that he has not denied title of the landlord, the Court cannot hold that tenant denied the title of the landlord and order eviction on a non-existent ground.
8. Prima facie the contention of the learned counsel appears to be attractive, but on examination it lacks substance. This necessitates examination of the plea of the tenant. It has already been pointed out above that by way of amendment the tenant took further plea that the mulgi in question is an endowed property and, therefore, the Court has no jurisdiction. It only means that the owner of the premises has no title to the property and it is the endowment department which would have title to the property. This obviously means denial of title of the owner-landlord. It may be pointed out here that there is a distinction between denial of jural relationship of landlord and tenant and denial of title of the landlord. It is only when a tenant denies the title of the landlord and such denial is not bona fide that he becomes liable to be evicted under Clause (vi) of Sub-section (2) of Section 10 of the Act but not when lie denies the relationship of landlord and tenant. Having regard to the expansive definition of the expression 'landlord' in Section 2(vi) of the Act, which includes persons other than the owner of the premises, denial of relationship of landlord and tenant does not amount to denial of title of the landlord. But mere denial of title of the landlord is not enough, it must also be shown that such denial is not bona fide.
9. In this case the tenant denied not the relationship of landlord and tenant but the title of the landlord. The owner got the suit mulgies in partition on the death of Raja Kanyaka Prasad. The mulgies along with other properties were mortgaged in favour of one Hamidunnisa Begum. In O.S. No. 310/58 on the file of the First Additional Judge, City Civil Court Hyderabad, between the mortgager and mortgagee for recovery of money, the Endowments Department which was a party to the suit took the plea that the properties were endowed properties. The Civil Court held that the properties were not endowed properties. Though the Endowments Department did not file any appeal against the finding of the Civil Court that the said Mulgies are not endowed property and it had become final, yet in the appeal filed by Hamidunnisa Begum, C.C.C.A. No. 10/61 on the file of the High Court, in which the Endowments Department was impleaded as the 4th respondent, it reiterated the contention that the said properties were endowed. The High Court rejected the contention of the Endowments Department that the properties were endowed by its judgment dated 15-9-1966 in C.C.C.A. No. 10/61 (certified copy of the judgment is marked as Ex.P.8) which has become final. Therefore, the properties cannot be claimed to be endowed properties.
10. The contention that the tenants were not parties to the said suit or the appeal, as such they could not be imputed with the knowledge of the finding in the suit and the appeal that the said properties were not endowed and their claim that the mulgies are endowed property which has the effect of denying the title of the owner could not be said to be mala fide in view of the entries in the registers of the Endowments Department is appealing at the first sight, but on scrutiny of facts, it cannot be sustained. It may be noticed that the tenants were not content with taking the plea on the basis of the said documents, but they chose to file an application before the Deputy Commissioner (O.A. No. 27/82) impleading the hereditary trustee of Muralidhar Bagh temple and the Assistant Commissioner of Endowments as respondents in the application specifically alleging that the owners have no title in the said property and that they are endowed properties. That application was dismissed on 28-6-1983. Thereafter they filed W.P. No. 5823/83 challenging the order of the Deputy Commissioner in the said O.A. The W.P. was also dismissed. Then they filed W.A. No. 1215/83 which was also dismissed. All this could not be said to be a bona fide action by the tenants. These aspects were considered by the learned appellate Judge in recording the finding that the denial of title by the tenant was not bona fide. I do not find any illegality or impropriety in the judgments of the appellate authority to justify interference of this Court in these revisions. The CRPs are without any merit, they are accordingly dismissed.
11. Sri V. Venkataramana, the learned counsel for the petitioner, in C.R.P. No.2643/91 submits mat in view of the judgment in C.R.P. No. 1798/89, dismissing the CRP, no further orders may be necessary in this CRP.
12. Having regard to the fact that the premises are situate in a very busy locality and having regard to the fact that it is very difficult to get a non-residential accommodation in the said locality, I consider it just and appropriate to grant time to the tenants upto the end of November, 1993, to vacate the premises.
13. Subject to granting of time for vacating the premises, the C.R.Ps. are dismissed, but in the circumstances without costs.