Andhra HC (Pre-Telangana)
T.S. Prakash vs Xavier Emmanuel And Anr. on 25 October, 1994
Equivalent citations: 1994(3)ALT461
ORDER A. Gopal Rao, J.
1. Tenant is the petitioner. The lower Court ordered eviction of the petitioner from the petition schedule premises on the ground that he committed wilful default in payment of rents for three months, viz., July, 1987 to September 1987 and also on the ground that first respondent/landlord bom fide requires the petition schedule premises for his personal occupation. Second respondent- herein, who is the co-owner of the petition schedule premises along with the first respondent-herein, got hereself impleaded as a party-petitioner in the eviction petition. She filed a petition in the lower Court, stating that she has not instructed the first respondent-herein to file the eviction petition and the first respondent, being only a sharer of the property, cannot evict the petitioner, from the petition schedule premises ~ the tenant. The second respondent- herein had already filed a suit, O.S.No. 635 of 1985 on the file of the III Additional Judge, City Civil Court, Hyderabad, for partition of the suit schedule property and for separate possession of her share and that suit is pending.
2. Learned Counsel for the petitioner/tenant has raised two points. Firstly, he submits that the first respondent-herein is not the exclusive owner of the petition schedule property and as there are other persons also who have got shares in the petition schedule property, the eviction petition, filed by the first respondent without reference to the other co-owners/sharers, is not maintainable. Secondly, he submits that the eviction petition filed by the first respondent-herein, without obtaining the permission of the other co-owners/ sharers of the property, as contemplated under sub-section (8) of Section 10 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (hereinafter called "the ACT"), is not maintainable.
3. In order to decide these two points, the following brief narration of facts of the case is necessary. The petition schedule property originally belonged to the father of first respondent-herein M.F. Immanuel, who executed a will, giving one-third share to the first respondent and one-sixth share each to his two daughters, and the remaining one-third share to one Joseph Immanuel till his life and thereafter to the children of Joseph Immanuel. The 2nd respondent- herein is one of the sisters of the first respondent, and one of the daughters of M.F.Immanuel. The will, executed by M.F. Immanuel has been probated, as evidenced by Ex.P-8 issued under the Indian Succession Act and the first respondent-herein has been appointed as one of the Executors of the said will. It is not in dispute that the petitioner-herein/tenant has been paying the rents to the first respondent herein, who was collecting the rents on his behalf and on behalf of the other co-owners of the property. The facts also disclose thatthe2nd respondent-herein has been receiving her share of rents from the 1st respondent-herein, as evidenced by Exs.P-9 to P-24, receipts passed by the 2nd respondent to the 1st respondent.
4. Section 2(vi) of the Act defines the term "landlord" thus:
" '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...."
A reading of the above definition of the term "landlord", discloses that the person who is authorised to receive the rents is also a 'landlord', within the meaning of the Act. Petitioner / tenant has been paying the rents regularly to the first respondent-herein. Ex.P-8 discloses that the first respondent-herein has been appointed as the Executor of the will. First respondent-herein, in his evidence before the Rent Controller, has categorically stated that he is administering the estate of his late father, on his behalf and on behalf of his co- owners. Exs.P-9 to P-24, receipts passed by the 2nd respondent to the 1st respondent, establish that the 2nd respondent has been receiving her share of rents from the first respondent. Further, the definition of the term "landlord" contained in Section 2 (vi) of the Act, also includes the 'executor of a Will'. Admittedly, the first respondent-herein is the 'executor' under the will of his father, which had already been probated. Notwithstanding the fact that the 2nd respondent-herein has not sup ported the case of the first respondent-herein for filing the petition for eviction, under law, as per the definition of the term 'landlord' as per Section 2(vi) of the Act, the first respondent is a 'landlord' within the meaning of the Act, for all purposes and he is entitled to maintain the petition for eviction against the petitioner-herein/tenant. The fact that the petitioner-herein himself has been paying the monthly rents to the first respondent-herein only, itself discloses that the petitioner/tenant has recognised the first respondent-herein as the 'landlord'.
5. The learned Counsel for the petitioner contended that the two decisions of the Supreme Court Sri Ram Pasricha v. Jagannath, and Kanta Goel v. B.P. Pathak, relied upon by the lower Court in ordering eviction of the petitioner/ tenant, are distinguishable on facts, as the definition of the term 'landlord' in the Act (A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960) is totally different from the definition of the term 'landlord' assigned in the West Bengal Premises Tenancy Act (12 of 1956) in Sri Ram Pasricha's case, and the Delhi Rent Control Act (59 of 1958) in Kanta Goel's case, .
6. I do not agree. In both the above decisions, what the Supreme Court laid down is that under general law, in a suit between a landlord and tenant for eviction, the question of title to the leased property is irrelevant and the tenant in such a suit is estopped from questioning the title of the landlord, under Section 116 of the Evidence Act. The Supreme Court also held (Kanta Goel's case (2 supra)) that "the co-heirs constituted the body of landlords and, by consent, implicit or otherwise, of the plurarity of landlords, one of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the landlord, and was therefore entitled to institute proceedings for eviction against the tenant qua landlord".
The above principles laid down by the Supreme Court squarely apply with respect to the definition of the term 'landlord' in our Act. As mentioned already, under Section 2(vi) of the Act, an 'executor' is also deemed to be a "landlord", for the purpose of maintaining the eviction petition. In K. Lakshmanarao v. Gulam Habeeb Khan, reviewing the entire case-law on the subject, this Court held that", there cannot be absolutely any doubt as regards the right of one of the co- owners to maintain the eviction petition against the tenant/s, even though the co-owners do not join the petition".
7. Therefore, I hold that the Courts below have rightly held that the eviction petition filed by the first respondent-herein alone, against the petitioner-herein, is maintainable. The first contention of the learned Counsel for the petitioner is hence rejected.
8. The second point, as urged by the learned Counsel for the petitioner, came up for consideration before the Madras High Court, in K.S. Appah v. Abdul Humeed, . In that case the definition of the term "landlord" contained in the Madras Buildings (Lease and Rent Control) Set besides the provisions of Section 10(8) of the said Act were interpreted. It is worth noticing that, the definition of the term 'landlord' contained in the Madras Act is exactly similar to the the definition assigned to the term 'landlord' in our Act. Added to that, the provisions of Section 10(8) of the Madras Act and the provisions of Section 10(8) of our Act are similar. Section 10(8) of the Madras Act as well as our Act reads thus:
"Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a buildings merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant".
Interpreting the provisions of Section 10(8) of the Madras Act, the Madras High Court held thus:
"A co-owner-manager of a rented house who receives rent on his own behalf and on behalf of other co-owners-landlords, is not a mere agent and hence he can apply for eviction of the tenant without obtaining the written consent as required by Section 10(8) of the Act. Provision under the sub- section (8) applies only to the class of persons receiving rent of a building merely as an agent and does not include the class of persons mentioned in the definition of "Landlord" in Section 2(6) who receive rent on behalf of themselves and on behalf of others as well".
9. Therefore, it follows that the question of obtaining permission, as required under Section 10(8) of the Act by the first respondent-herein from the other co- owners of the property to maintain the eviction petition, will arise only in the event of the eviction petition being filed by the first respondent-herein as an agent of the other co-owners. The facts mentioned above will disclose that the first respondent-herein is not acting as an 'agent' on behalf of the other co- owners of the petition schedule property. Significantly, excepting the 2nd respondent-herein, the other co-owners of the property are not impleaded in the eviction petition. The first respondent, being the 'executor under the Will', as evidenced by Ex.P-8, has filed the eviction petition against the petitioner- herein and therefore, the permission, as contemplated under Section 10(8) of our Act is not necessary to maintain the eviction petition. Moreover, the objection raised by the 2nd respondent, who is a co-owner of the property along with the first respondent and others, regarding the maintainability of the eviction petition filed by the first respondent alone, is irrelevant and can be ignored. In the circumstances, the second contention of the learned Counsel for the petitioner that the eviction petition filed by the first respondent alone, without obtaining permission/consent u /s. 10(8) of the Act from the other co- owners to file the eviction petition is not maintainable, is without any merit and the same is hereby rejected.
10. Both the Courts below have concurrently held that the petitioner committed wilful default in payment of rents for three months, viz., July 1987 to September 1987 and also that the landlord bona fide requires the petition schedule premises for personal occupation. The findings recorded by the Courts below are findings of fact, reached on a careful appreciation of the entire material evidence available on record and those findings of fact cannot be interfered with by this Court in this revision petition.
11. In the result, this revision petition is dismissed. The petitioner/tenant is given time upto 31-1-1995 to vacate the petition schedule premises. The petitioner/tenant shall vacate the petition schedule premises and put the same in possession of the first respondent on or before 31-1-1995, subject to the condition of his continuing to pay the rents regularly every month, including the rent for the month of January 1995. No costs.