Andhra HC (Pre-Telangana)
P. Murali Rao And Anr. vs Raghunatha Rao Ghatge on 15 December, 2004
Equivalent citations: 2005(1)ALT731
ORDER S.R.K. Prasad, J.
1. Both these Civil Revision Petitions arise out of the Judgment rendered in R.A. No. 32 of 1998 on the file of the Additional Chief Judge, City Small Causes Court, at Hyderabad.
2. For the sake of convenience, the parties are referred to as arrayed in the R.C. No. 301 of 1995 on the file of I Additional Rent Controller, at Hyderabad.
3. The brief resume of admitted facts are necessary to consider the case in both the Civil Revision Petitions. It is an undisputed fact that the premises is owned by the landlord, who is the petitioner in R.C. No. 301 of 1995 on the file of the I Additional Rent Controller, at Hyderabad.
4. The schedule premises was said to have been let out to the first respondent on a monthly rent of Rs. 165/- exclusive of the electricity charges which are directly payable by the first respondent to the Electricity Department. The schedule premises was constructed in the year 1950 and let out orally. The premises consists of three rooms, open yard, bathroom, toilet and well. The petitioner has presented R.C. No. 301 of 1995 under Section 10(2)(ii)(a), 10(2)(iii)and 10(3)(a)(i)(b) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for brevity, 'the Act') for eviction on the ground of sub-letting the premises to second respondent by the first respondent and also for bona fide personal occupation as his family became large viz., increased to 18 members.
5. The respondents are the tenants, who contend that there was no sub-letting of the premises and there was no bona fide requirement for the landlord to seek eviction. It is also contended that the petitioner is a Teacher, giving tuitions in the upstairs portion of the premises. It is also further contended that the family of the landlord consists of only 13 members, but not 18 members. The respondents have contended that the family of the landlord is of only 13 members and he has acquired some premises during pendency of the petition in the name of his wife and hence, there is an embargo put under Section 10(3)(a)(i) of the Act. The tenants have also contended that there was no sub-letting to second respondent and the second respondent has been residing along with first respondent. The tenants claim that Kistaiah and Ramaiah are brothers, who are fathers of first respondent and second respondent respectively. Ramaiah, father of the second respondent, died when the second respondent was aged about 7 or 8 years old and the second respondent was brought under the care and custody of the father of the first respondent and the marriage of second respondent was performed on 12-3-1967. The tenants also claim that there was no alternative accommodation for them to live.
6. On the strength of the said facts, an enquiry was conducted by the Rent Controller. The Rent Controller examined the petitioner and respondents and marked five documents on behalf of the petitioner and eight documents on behalf of the respondents. Ultimately, the Rent Controller gave a finding that the requirement of the petitioner/landlord is not bona fide and rejected the plea of sub-letting. The Rent Controller has also rejected the alleged plea of causing nuisance and he has dismissed the application, as the premises are not required bona fide by the petitioner. Thereupon, the landlord carried the matter in appeal before the Additional Chief Judge, City Small Causes Court, at Hyderabad in R.A. No. 32 of 1998, who reversed the findings of the trial Court relating to bona fide personal requirement of the landlord and ordered eviction, while confirming the order of the Rent Control Court in respect of finding of sub-letting and nuisance.
7. Thereupon the landlord has preferred the revision in C.R.P. No. 2098 of 2002, whereas the tenants preferred C.R.P. No. 5308 of 2001. During the pendency of these revisions, an application CM.P. No. 16621 of 2004 has been filed by the tenants to receive additional evidence in respect of subsequent events relating to the acquisition of the property by the landlord in the name of his wife. The landlord has filed a counter-affidavit, regarding acquisition of the property by his wife, during the pendency of the matter, at Malakpet and he has not raised the money for the same, and his daughter's marriage has been performed and she joined her husband, whereas his sons have come up of marriageable age. His family was big. It is also mentioned in the counter-affidavit that there is only one room in respect of-the house purchased at Malakpet in the name of his wife.
8. With the above background of facts and events, I now proceed to deal with the contentions canvassed on either side.
9. The learned Senior Counsel Sri S. Balachand, appearing for the landlord in C.R.P. No. 2098 of 2002 contends that there is a secret arrangement in between the tenants viz., first and second respondents, who are brothers. He mainly relied on two circumstances viz., admissions made by the tenant viz., first respondent in the R.C., that there are two separate ration cards and they are carrying on separate business at some other place. It is also clearly stated by R.W. 2 (second respondent) that he is a businessman as a Hawker and his elder son-Sudhir is an employee and the first respondent is his cousin.
10. It is a case where the tenants have been inducted into the property in the year 1959 by the father of the landlord as per the evidence of P.W. 1. An attempt has been made by the first respondent to show that the second respondent has been residing along with him and brought up by his father, by filing Ex. B-4 wedding invitation and Exs. B-5 to B-7 wedding cards and Ex. B-8 electoral roll. No doubt, the said documentary evidence shows that the second respondent has been residing along with the first respondent. The secret understanding canvassed before this Court by the landlord, did not find place either in the registered notices viz., Ex. A-2 and Ex. A-4, or in the Rent Control Petition. It is being canvassed now, as he is unable to prove sub-letting.
11. The Apex Court has given guidelines to arrive or to decide about sub-letting, in a decision reported in Bharat Sales Ltd. v. Life Insurance Corporation of India, . The relevant portions at paragraphs 4 and 9 read as follows:
"4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sublease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.
9. Learned counsel for the petitioner placed strong reliance upon the decision of this Court in United Bank of India v. Cooks and Kelvey Properties (P) Limited , in which it was indicated that "the meaning of transfer of a right to enjoy the property for consideration envisaged under Section 105 of the Transfer of Property Act, postulates that a tenant who transfers or assigns his right in the tenancy or any part thereof in whole or in part held by him without the previous consent in writing creates a sub-tenancy". This case also does not help the petitioner as it was found as a fact that although the bank (appellant) had inducted the trade union into the premises, the bank had not received any monetary consideration and the union was only permitted to use the property for its trade union activities. It was also found that the bank had retained its power to call upon the union to vacate the premises at any time. The bank had - been maintaining the premises at its own expenses and was also paying the electricity charges consumed by the trade union. It was also found that the bank retained its control over the trade union whose membership was confirmed only to the employees of the bank. The possession of the union was held to be "constructive possession" for and on behalf of the bank. Reliance was placed on the observation that "the existence of consideration, an ingredient of sub-letting, had not been present to hold that there was subletting". In the background of the facts of the case, this observation does not purport to lay down that in every case payment of consideration must be established by the landlord to prove sub-letting by the tenant."
12. What is mentioned in the above case is that sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. It is also observed by the Apex Court that the payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically.
13. Keeping in view the guidelines if the evidence is examined, it lacks proof of factual events that formulate sub-letting. Both the respondents were found staying there and there was no exclusive possession given to the tenants. The alleged drama played has not been spoken to or pleaded in the petition. In that view of the matter, I am not prepared to accept the alleged subletting. Moreover, concurrent findings of facts have been given by both the Courts below. If it is shown that the finding is not based on proper appraisal of evidence, then only this Court has to interfere. I am of the considered view that the conduct of respondents 1 and 2 and petitioner and the knowledge attributable to the petitioner in the rent control matter regarding the stay of respondents 1 and 2 in the same premises for a long time will only belie the alleged subletting. Moreover, in the absence of any evidence, ipsi dixit evidence of P.W. 1 cannot be accepted and believed. Both the Courts below have rightly come to the conclusion that there was no sub-letting.
14. Coming to the bona fide requirement, I have perused the contents of the petition in R.C. No. 301 of 1995 filed by the landlord. What is stated in the petition is that he bona fide requires the premises for his personal occupation in view of the increase in the strength of his family members. The respondents themselves admit the fact that the petitioner is retired as a teacher and he is giving tuitions in the upstairs portion. He is having a widowed sister. No doubt, exaggerated version has been placed by mentioning the family members as 18, when they are 13 only. Both the Courts below evaluated the evidence and found that the family members consist of 13 only and not 18.
15. The learned Senior Counsel Sri A. Ananda Rao, appearing for the tenants in C.R.P. No. 5308 of 2001 contends that the landlord is asking for additional accommodation, but the premises are separate and independent ones and he cannot ask for additional accommodation. He can only make a claim for bona fide requirement. He has placed reliance mainly on the principles laid down by the Apex Court in a decision rendered in Gangaram v. N. Shankar Reddy, . The relevant portions at paragraphs 7 and 9 read as follows:
"7. On a consideration of the matter, we find that the contention of Mr. Nambiyar, which has found acceptance with the Appellate Court and the High Court is not at all a tenable one. What Section 10(3)(c) envisages is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant. The significant words used in Section 10(3) (c) are 'the landlord who is occupying only a part of a building' and 'any tenant occupying the whole or any portion of the remaining part of the building'. Surely no one can say that two adjoining buildings bearing different door numbers, one occupied by the landlord and the other by the tenant would make them one and the same building if they are owned by one person and separate buildings if they are owned by two different persons. A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord's possession and enjoyment of the premises in his occupation being affected. Viewed in that manner, it can at once be seen that the leased premises in the appellant's occupation can be independently sold and the purchaser delivered possession without the respondent's possession of door No. 1-1-249 being affected in any manner. As a matter of fact, the previous history of the building shows that before it was purchased by the respondent, it was owned by Sri Sitaram Rao and the respondent was owning only door No. 1-1-249. Such being the case, merely because the appellant has acquired title to door No. 1-1-250 also, it can never be said that the building under the tenancy of the appellant became part and parcel of the respondent's building No. 1-1-249. Similarly, the fact that the two buildings are separated only by a single wall with no intervening space between them would not alter the situation in any manner because the identity of two separate buildings is not to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them.
9. Mr. Nambiyar referred to the definition of the word "building" in Section 2(iii) of the Act and argued that if for the purposes of the Act, where the context warrants it, different portions of the same building can be treated as separate buildings, it should conversely be held that if adjoining buildings are owned by the same person and one of them is in the occupation of the landlord and the other by a tenant, then for purposes of Section 10(3)(c) the two buildings should be treated as an integrated and composite building. We are unable to accept this argument because firstly the terms of Section 2(iii) do not afford scope for such a construction and secondly the argument fails to take note of the purpose and object lying behind the definition of "building" in the manner in which the clause is the worded. Section 2(iii) has been provided so as to make the provisions of the Act applicable to the whole of the building as well as to parts of it depending upon whether the entirety of the building has been leased out to a tenant or different portions of it have been let out to different tenants. There is, therefore, no room or scope for the respondent to invoke Section 2(iii) to contend that two different premises should be treated as a single and integrated building for the purposes of the Act if the two buildings adjoin each other and are owned by the same person but under different occupation i.e., one by the landlord and the other by the tenant."
16. No doubt, the principles laid down in the said Judgment have not been considered at all. The interpretation has been put on Section 10(3)(a)(i)(b) of the Act by the Division Bench of this Court in Penugonda Rajeswari v. Jaladi Anasuyamma, (D.B.). What is interpreted is: the word "instead" in Section 10(3)(a)(i)(b) of the Act, is to be interpreted as "in addition to". The Division Bench has dealt with the interpretation of that word only and ultimately disposed of the revision petition, having found that it was posted before them, without any point for reference and disposed of the revision petition. It is clear that they are not answering the reference. It is only dealt with the C.R.P. Ultimately the Division Bench has not considered the principles laid down by the Supreme Court regarding additional accommodation, which in contemplated. The Apex Court has clearly stated that the additional accommodation can only be claimed in respect of the part of the premises and not for a separate building. The Law laid down by the Supreme Court prevails over all other Judgments and this Court is bound to follow the Law laid down by the Supreme Court in the aforesaid decision.
17. This is not a case of additional accommodation. No where it is stated in the petition that the landlord requires the premises as additional accommodation. Much argument is advanced on that aspect, stating that he wanted additional accommodation. What is mentioned in the petition is only bona fide requirement. In that view of the matter, the principle governing for additional accommodation will not have much bearing.
18. The question that falls for consideration is of the acquisition of another premises in the name of his wife lays an embargo on the part of the landlord when claiming the premises. No doubt, husband cannot be treated as an agent of wife as can be seen from the principle laid down in a decision rendered in Jawaharlal Daima & Co. v. Ch. Chittemma, 1989 (1) APLJ 333. But the Hindu husband is always a trustee for the dealing with the affairs .of the innocent wife or who are not acquainted with the worldly affairs. That cannot be disputed. This Court has culled out the entire Law from the decisions of the Apex Court as well as all High Courts in a decision rendered in Venkateswara Electrical Stores and Ors. v. Rajender Singh, , wherein it is categorically stated as follows:
"9. The following principles can be culled out from the aforesaid decisions of the Supreme Court as well as this Court:
(1) When the landlord requires a building whether it is a residential or non-residential for his own occupation, he may apply for eviction of the tenant.
(2) The requirement of the landlord should be bona fide.
(3) The consideration of suitability, convenience or sufficiency of a building in occupation of landlord is relevant and has to be considered.
(4) If the landlord is in possession of a non-residential building in the city, town or village or requirement of another non-residential building for expansion of business or to establish another business or needs additional accommodation of a non-residential building in the same city, town or village, Section 10(3)(a)(iii) places an embargo.
(5) Where the landlord in occupation of a tenanted premise is threatened of ejectment, he is entitled to seek for eviction.
(6) Where a landlord is occupying a non-residential building of his own seeks eviction of a tenant in occupation of another non-residential building, it is not incumbent on the landlord to first vacate the non-residential premises in his own occupation as a condition precedent for maintaining an eviction petition in respect of his own non-residential premises in the occupation of his tenant.
(7) The statutory requirement that landlord should not be occupying for his business another non-residential building in the city which is his own includes co-ownership.
(8) The Act did not prohibit if the members of family of landlord possessed non-residential premises of his own.
(9) If the landlord and his brothers were conducting business on partnership in leased premises, it has no ground to contend that the requirement of the landlord is not bona fide.
19. The consideration of suitability, convenience or sufficiency of a building in occupation of landlord is relevant and has to be considered by the Court while taking into consideration bona fide requirement of the landlord. It is also stated if the landlord is in possession of a non-residential building in the city, town or village or requirement of another non-residential building for expansion of business or to establish another business or needs additional accommodation of a non-residential building in the same city, town or village, Section 10(3)(a)(iii) of the Act places an embargo. The Court has to consider whether the acquisition of non-residential premises by his own wife can debar the husband for his bona fide requirement of the premises. In view of the expansion of the family, it is for the landlord to choose the premises, which is required for bona fide occupation. The suitability, convenience or sufficiency of a building in occupation of landlord is relevant. The landlord is entitled to make his choice and the Court cannot prevent his choice unless it is shown to be mala fide. Court has to take into consideration his choice. The only thing that has to be considered is whether he requires the adjacent premises bona fide for his occupation.
20. The relevant provisions are Section 10(3)(a)(iii) of the Act. Section 10(3)(a)(iii) of the Act has no application to the residential building. It only covers in respect of non-residential building. The word "instead" mentioned in Section 10(3)(a)(i)(b) of the Act has been interpreted as "in addition to". When such is the case, seeking another building for his own occupation in addition to the building already under his occupation cannot be said as not in accordance with the provisions of Section 10(3)(a)(iii) of the Act. I respectfully disagree with the contentions of the learned Senior Counsel appearing for the tenants. If the Court takes into consideration the growing needs and also the requirement of the person, who is eking out his livelihood by giving tuitions etc., I am of the considered view, that he bona fide requires the another building which is in occupation of the tenants. The lower Appellate Court has rightly come to the conclusion that the premises is bona fide required by the landlord and ordered eviction while negativing the contention of sub-letting and causing nuisance. In view of my above discussion, I am of the considered view, that the landlord requires the premises bona fide as his family members are said to be 13 in number, even though the widowed sister may be residing here as well as at another place, which do not make any difference. I also find that the lower Appellate Court came to the right conclusion. There is no need to disturb the finding relating to the bona fide requirement. In that view of the matter, both the Civil Revision Petitions are liable to be dismissed and they are dismissed accordingly, including the receipt of additional evidence, which is not necessary in view of the admissions found.
21. The tenants are directed to put the landlord in possession of the schedule premises within three months from to-day, failing which, the landlord is at liberty to execute the order of this Court.
22. Accordingly/both the Civil Revision Petitions are disposed off. Each party do bear their own costs.