Andhra HC (Pre-Telangana)
Kosuri Satti Babu vs Vadaboyina Simhachalam And Anr. on 21 April, 1995
Equivalent citations: 1995(2)ALT270, 1995 A I H C 4477, (1995) 1 APLJ 431, (1995) 2 LS 15, (1995) 2 ANDH LT 270
ORDER S. Parvatha Rao, J.
1. This Civil Revision Petition is preferred under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 ('the Act' for short) by the unsuccessful tenant against the order of the learned Principal Subordinate Judge-cum-Rent Control Appellate Authority at Visakhapatnam, dated 25-6-1992 dismissing his appeal,R.C. A. No. 15 of 1990,and confirming the order of the Rent Controller-cum-Principal District Munsif at Visakhapatnam, dated 7-6-1990 in R.C.C. No. 101 of 1986 allowing the eviction petition filed by the respondents herein.
2. The first respondent herein and her husband Bangaraiah were the owners of the premises (hereinafter referred to as "the leased premises") leased to the petitioner herein for his business purposes at a rent of Rs. 400/-per month under a registered lease deed dated 30-12-1980 (marked as Ex.A-2 in the R.C.C). The period of lease was five years. Bangaraiah died on 16-5-1981 leaving behind the first respondent and their only son, the second-respondent, as his heirs. Thereafter, the petitioner attorned to the respondents herein and has been paying rents for the leased premises to them. It is the case of the respondents herein that the leased premises formed part of a building belonging to them and that the remaining portion of the building has been in their occupation and that they have been running hotel business in the remaining portion of the building. It is their case that for the purpose of expanding hotel business they required the leased premises and that they requested the petitioner herein to vacate and that as he refused to vacate, they had to prefer the R.C.C. for eviction of the petitioner herein. The petitioner herein resisted the R.C.C. and disputed the need of the respondents contending that the remaining portion of the building in the possession of the respondents herein was sufficient for the purposes of their hotel business and that the eviction perition was not bona fide and that it was filed because he did not agree to increase the rent to Rs. 1,000/- per month as demanded by the respondents herein. The petitioner herein also contended that the leased premises was a separate building and did not form part of the building in which the respondents were running hotel business and that therefore Section 10(3)(c) of the Act was not attracted to the facts of the case and that on the other hand, in view of Section 10(3)(a)(iii) he could not be evicted from the leased premises which was a non-residential building because they were already naving a non-residential building in which they were doing the hotel business.
3. As regards the contention of the tenant, i.e., the petitioner herein, that the premises leased to him was a separate building and did not form part of a building in which the respondents were running hotel business, the Rent Controller as well as the Appellate Tribunal found that the petitioner herein did not take such a plea in his counter in the Rent Control case. They also found that in the registered lease deed dated 30-12-1980 (Ex. A-2), the leased premises were described as portion of the building of the petitioner and that its southern boundary was shown as remaining portion of the building of the respondents herein. The tenant who examined himself as R.W.I also did not depose in his evidence that the leased premises was not a contiguous part of the remaining building or that it was a separate and distinct unit. After considering the evidence on record, the Rent Controller held as follows:
"There is no evidence to prove that the petition schedule premises is a separate unit. In the absence of any evidence to prove that the petition schedule premises is a separate and distinct building and it is not a part and parcel of the composite building, I have no hesitation to come to the conclusion that it is a portion of the build ing owned by the petitioners and they are running ? meals hotel in the remaining portion."
The appellate authority agreed with this finding of the Rent Controller and after discussing the evidence held as follows:
"So, in the light of the registered lease deed, Ex.A-2 between the parties which clearly gives the particulars of the property that was leased out and which aboundantly shows that what was leased out was only a portion of the house, the contention of the learned counsel for the appellant (petitioner herein) that it is a separate building or an entity do not hold good. There is neither plea nor evidence and that contention was raised only for the first time in the arguments. In may view the tenant is not at all entitled to do so, the evidence on record is quite contra to his contention and overwhelmingly show that what was leased out to the tenant is only a portion of the house and not an independent building."
4. The Rent Controller as well as the appellate authority also held that the requirement of the respondents herein was bona fide and that they were in need of additional accommodation for expanding their hotel business. They also found that the petitioner herein secured alternativeaccornmodation and that he was having a three storied building in the same street about 100 yeards away from the leased premises and that he was using the ground floor of the said building for his business. The stand taken by the petitioner that the said three storied building belonged to his wife was disbelieved. The appellate authority held as follows as regards the availability of alternative accommodation to the petitioner here in:
"On the other hand, there is an assertion by the tenant himself before the Commissioner that the property belong to him. Above all, there is no assertion by the tenant in his counter that the property which was said to be alternative accommodation does not belong to him. It is quite apparent that the denial of the tenant at a later stage of his evidence, with regard to this property in which he is doing business is nothing but false. Moreover, Ex.A-7, an invitation card which was marked in this appellate Court as additional evidence would clearly show that the tenant started similar business in another locality of the town in the name of his son. I do not find any force in the contention of the learned Counsel for appellant that this building was already there even by the time the lease was taken and it cannot be treated as securing alternative accommodation. So, in these circumstances when the tenant is already having another building and which is being used for his business in the same street, which is 100 yards away or at any rate one furlong away from the schedule premises, and that building was owned by him also, it can be considered as securing alternative accommodation."
5. On these findings, the Rent Controller allowed the eviction petition and the appellate authcrity dismissed the appeal preferred by the petitioner herein against the order of the Rent Controller allowing the eviction petition.
6. The learned Counsel for the petitioner contends that the Rent Controller as well as the appellate authority erred in holding that the leased premises formed part of the building in which the respondents are running their hotel business. He submits that the ruling of the Supreme Court in Gangaram's cases. N. Shankar Reddy, was not correctly appreciated by the Tribunals below and that Section 10(3)(c) of the Act is not attracted to the facts of the present case because it is not in dispute that the leased premises has a separate Municipal door number different from the one given to the premises in the occupation of the respondents herein in which they are running the hotel business. He also points out that the mere fact that two premises are contiguous to one another and are separated only by a wall would not make any difference and the said circumstances cannot make them one building. He strongly relies on the following passage in the judgment of the Supreme Court in Gangaram's case, :
"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 apart 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 ofthe same building or two different buildings would be to see whether one of the two build ings 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 Pareel 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 build ings 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."
He also points out that the Supreme Court rejected the argument of Mr. Nambiyar in that case based on the definition of the word 'building' that if for the purposes of the Act, where the context warrants it, different portions of the same building cm be treated as separate holdings, it should conversely be held that if adjoining buildings a re 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 buildings. The following passage in the judgment of the Supreme Court has to be noticed also:
"Mr. Nambiyar then argued that if Section 10(3)(c) is to be construed as being applicable only when different portions of the same building are in the occupation of the landlord as well as one or more tenants, it would result in a landlord like the respondent who is genuinely in need of additional accommodation being left with no remedy whatever for securing additional accommodation for his business needs. we find it unnecessary to go into the merits of this submission because however genuine the respondent's need for additional accommodation may be and whatever be the hardship resulting to him by non-eviction of the applicant, we cannot grant any relief to the respondent under the Act as it now stands. As per the Act the relief of eviction of a tenant can be given to a landlord only under two situations viz., (1) where the landlord is not in occupation of a building of his own or to the possession of which he is entitled to by an order of eviction under Section 10(3)(a)(iii) and (2) where the landlord is in occupation of only a portion of his building and is bona fide in need of additional accommodation and another or the remaining portion of the building is in the occupation of a tenant or tenants by ordering his or their eviction under Section 10(3)(c). The Legislature has not provided for Section 10(3)(c) being made applicable toa landlord where he owns ad joining buildings and is in occupation of only one of those two buildings and the tenant is in occupation of the other and the landlord is bona fide in need additional accommodation for his residential or business needs. If the hardship experienced by landlords similar to the respondent is to be alleviated, then it is for the Legislature to remedy the situation by making suitable amendments to the Act and it is not for the Court to read Section 10(3)(c) beyond its terms obiivious to the limitations contained therein and hold that a separate tenanted building adjoining the building in the owner's occupation would also form part of the latter building."
7. This rather long excursion into the reasoning in Ganagaram's case (1 supra) is necessitated to have a clear view of the facts on which the decision turned and to clearly understand its scope. The basic factual premise was that there were two separate buildings to start with owned by two different persons, with two different house numbers, and the respondent before the Supreme Court who owned the building bearing door No. 1-1-249 purchased the adjoining tenanted building bearing door No. 1-1-250 (in the occupation of the tenant/appellant before the Supreme Court), which was separated "by a single wall with no intervening space" from the other building. The argument advanced on behalf of the respondent was that treating these two buildings as parts or portions of one building, Section 10(3)(c) could be invoked by him for evicting the tenant on the ground that he was in need of additional accommodation. This was rejected by the Supreme Court. In that connection, the Supreme Court observed that a practical test which could be applied to find out if two adjoining buildings form part of the same build ing would be to see whether one of the two build ings could be sold by the landlord and the purchaser inducted into possession of the building sold without the land lord's possession and enjoyment of the build ing in his occupation being affected. This test cannot be divorced from the context of the facts of that case and the contentions urged therein: the crucial facts being that there were two separate and distinct buildings owned by two different persons when the appellant before the Supreme Court was inducted as a tenant of one of the buildings and that subsequently the respondent-landlord purchased the tenanted building and sought eviction of the tenant invoking Section 10(3)(c) contending that the two buildings should be treated as one.
8. I am of the view that the decision in Gangaram's cast' (1 supra) has no application to the facts of the present case. In the present case what is leased out to the petitioner herein is only a portion of the house belonging to the respondents and there is neither a specific plea nor evidence that what is leased out is a separate and distinct building by itself and that it does not form part of the building a portion of which is in the occupation of the owners/respondents herein. In the present case the Rent Controller and the Appellate Authority found as a fact that there were no two buildings at all.
9. The learned Counsel for the respondents has drawn my attention to the decision of the Supreme Court in Shri Balaganeshan Metals v. M.N. Shanmughum Chetty, wherein the Supreme Court dealt with the analogous provisions in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Section 10(3)(a)and Section 10(3)(c) of the Tamil Nadu Act are more or less similar to Sections 10(3)(a) and 10(3)(c)of the Act. Section 2(2) of the Tamil Nadu Act defined 'building'as meaning "any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes......". One of the contentions advanced before the Supreme Court was that since the ground floor constituted by a building itself within the meaning of Section 2(2) of the Madras Act, the respondents could seek eviction of the appellant only under Section 10(3)(a)(i) and not under Section 10(3)(c) of that Act. The Supreme Court rejected the said contention holding as follows:
"It is no doubt true that under Section 2(2) a building has been defined as not only a building or hut but also part of a building or hut let separately for residential or non-residential purpose. That would, however, only mean that a part of a building which has been let out or which is to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not necessary to treat the entire building as one whole and inseparable unit. A limitation on the definition has been placed by the Legislature itself by providing that the application of the definition is subject to the contextual position. Therefore, it follows that where the context warrants the entire building being construed as one integral unit, it would be inappropriate to view the building as consisting of several disintegrated units and not as one integrated structure........... If as contended by the appellant each portion of a building let out separately should always be construed as an independent unit by itself then there is no scope for a landlord occupying "a part of a building" seeking eviction of a tenant "occupying the whole or any portion of the remaining part of the building". It is, therefore, obvious that in so far as Section 10(3)(c) is concerned the Legislature has intended that the entire building, irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not as different entities. To import the expansive definition of the word "building" in Section 2(2) into Section 10(3)(c) would result in rendering meaningless the words 'parts of a building' occupied by the landlord and a tenant 'occupying the whole or any portion of the remaining part of the building'."
It follows from the above ruling that when there is one integrated structure of a building and a portion of that building is given on lease, that portion cannot be treated as a separate building for the purposes of Section 10(3)(c) even though under the definition of the expression 'building', part of a building is also a building.
10. Narasinga Rao, J. applied the test of 'composite building 'in his judgment dated 5-7-1979 in C.R.P. No. 148 of 1979 while rejecting the contention that a portion of the building leased out for running a shop though structurally part of the building was by itself a building in view of the definition of the 'building' contained in Section 2(iii) of the Act. The learned Judge held as follows:-
".......it can be seen that even as per the petitioner's averments, the shop portion has come to be separated out of the same building which bears No. 143. There cannot be any dispute that the premises No. 143/A is structurally part and parcel of the premises No. 143. The question however is whether the landlord can be said to be in possession of 143/A building so as to entitle him to seek additional accommodation under Section 10(3)(c).
It is true that even a portion of a building is defined as building by itself, where such building is intended to be let out to a tenant. In the light of the definition of 'building' as contained in Section 2(iii) of the Act, even a portion intended to be let out, has to be considered as a building for specific purposes. It is not as though that portion has to be considered as a building for all other purposes. At any rate, since the whole building is structurally one, the portion occupied by the landlord cannot be said to be a separate building by itself. Though the respondent can be said to be a tenant of a portion of the house which by itself is a building within the meaning of Section 2(iii), yet that portion is not to be considered as a separate building when the landlord is shown to be in possession of the remaining portion of the composite building. From the mere fact that a separate door number has come to be assigned, it cannot be treated as a separate building. Since the landlord resides in a portion of the composite building, the portion in the occupation of the tenant is still to be considered as part and parcel of the same building. 1 am fortified in this view by a ruling of Madras High Court in R.K. Veerappa Naidu and Anr. v. Gopalan, 1961 (1) MLJ 221.......This Court in C.R.P. No. 1101 of 1970 discussed a similar question. The facts of that case were that the landlord was owning 2 shops viz., A & B having two different municipal numbers. They are separately assessed to municipal tax. They have got separate entrances and separate electrical installations. There is no inter-connecting door in between the two shops which are adjacent to each other and they were always let out to separate tenants and were never in possession and enjoyment of one tenant at any time. The contention was that they are two separate buildings and the landlord being in possession of shop 'A' only, cannot seek eviction of the tenant from shop 'B' though it is required for the additional business of the land lord's son. In that case, it was seen that if the intermediary wall between A and B is removed, the two shops become only one big hall. Considering the definition of 'building 'under Section 2(iii) of the A.P. Act, it was held that the definition of 'building' in that section is only for limited purposes. A part of the building means physically and structurally a portion of a building and it will not cease to be so because of the definition of the word 'building'. Considering Section 10(3)(c), it was held that the plain meaning of the section is that a landlord in occupation of a portion of a bloc of a building, can, for his own accommodation evict the tenant in occupation of another portion of the bloc. This he would be entitled to, whether or not the portion in the occupation of the tenant has got means of separate ingress and agress, whether it has been registered in them unicipal registers as a separate unit or assessment or not and whether access to the portion is by the same street or different street. These are irrelevant considerations in ascertaining the landlord's requirement of additional accommodation. The case on hand stands on a better footing. It is not as though that portion is altogether different one, without separate access or ingress. The case of the respondents is that, by removing the intermediary wall, they can convert the shop portion into a big hall, so as to have additional accommodation. "Since they happen to reside in a portion of the same building, they are entitled for additional accommodation" and this petition under Section 10(3)(c)ismaintainable with regard to the portion in the occupation of the tenant. On a close consideration of the provisions of law, it has to be held that the contention raised by the learned Counsel for the revision petitioner lacks substance and that Section 10(3)(c) has application even to a case like this."
In K. Narayana Rao v. Vysyn Bank Ltd., P. Ramakrishnam Raju, j., rejected the contention advanced before him that since the Municipality had allotted separate numbers to each of the portions under the occupation of the tenants, Section 10(3)(c) had no application and that the said portion must be held as independent buildings within the meaning of Section 2(iii) of the Act. The building in that case belonged to Vysya Bank Limited and consisted of two floors apart from ground floor and the tenants were carrying on business in the mulgies and godowns in the ground floor. The Bank was in the occupation of the first and second floors and sought eviction of the tenants from the ground floor invoking Section 10(3)(c) on the ground that it required additional accommodation. The learned Judge held that the entire premises was one building only.
11. In the present case it is not necessary to further delve into the question as to the precise criteria or tests to be applied for ascertaining when a tenanted portion can be treated, if a tall, as a separate, building, separateand distinct from the portion in the occupation of the land lord: as in the case of 'flats' in different floors of a building or adjacent 'flats' in the same floor of a building. There is a clear finding in the present case that what is leased out to the petitioner is only a portion of the house and not an independent building. The lease deed dated 30-12-1980, evidenced by Ex. A-2, itself proceeds on the basis that what is leased out to the petitioner is only a portion of the building in which the respondents are running their hotel. The schedule to the lease deed shows that the southern boundary of the leased premises is described as the remaining portion of the house of the first party, i.e., the landlord. The schedule to the eviction petition filed under Section 10(3)(c) of the Act also describes the southern boundary of the leased premises in the same manner. In the counter filed by the respondents this was not disputed. No evidence also has been adduced by the petitioner herein to establish the contra.The Rent Controller in his order observed that the petitioner here in, who examined himself as R.W. l, did not state in his evidence that the petition schedule premises was not a contiguous part of the remaining building or that it was a separate and distinct unit. The learned Counsel for the petitioner does not dispute this. lam, therefore, not inclined to interfere with the findings of the Rent Controller and the Appellate Authority in this regard.
12. The learned Counsel for the petitioner contends that the petitioner filed an additional counter-affidavit stating that during the pendency of the appeal three rooms were constructed by the respondents in the first floor of the building and that they were given on rent by them and that the petitioner herein was recalled, examined and cross-examined, but that this evidence was not discussed or even referred to by the appellate authority. The learned Counsel also points out that the respondents herein did not question the averments in the counter-affidavit by filing a rejoinder. He relies on Ramesh Kumar v. Kesho Ram, wherein the Supreme Court held that "wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief". He relies on the following observations in that decision:
"While it is true that a distinction must be made between pleading and proof, the further submissions that these must necessarily be in two successive sequential stages need not always be so and particularly when dealing with pleas of subsequent events in appeals and revisions. If the allegations of facts made in support of such a plea are denied then alone the question of their proof in an appropriate way arises. If those allegations of facts are admitted, there is no need to prove what is admitted or must be deemed to be admitted. There can be admissions by non-traverse."
However, the Supreme Court also observed that "there might also be cases in which, having regard to the nature of the circumstances, the Court may insist upon proof independently of such admission by non-traverse" and indicated the courses open to the Court depending on the facts and circumstances 'of a case, as follows:
"When subsequent events are pleaded in the course of an appeal or proceedings of revision, the Court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means affidavits as envisaged in Rule lof Order 19, CPC. The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. It may record the evidence itself or remit the matter for an enquiry and evidence."
In the present case the averments of the petitioner in his additional counteraffidavit were tested by recalling him and examining him. In the crossexamination the petitioner stated that there was no documentary evidence to show that the three rooms were constructed in the first floor in the month of January, 1991. He denied the suggestion that even prior to the filing of the R.C.C. the three rooms were constructed on the first floor and that members of the respondents' family even then were residing in the said three rooms. He also denied that the three rooms were constructed with tar sheets as a temporary accommodation. But he admitted in his cross-examination as follows:
"I did not go to the daba of the petitioners house ........ There is no possibility of doing business in the first floor of the said building. I cannot say to whom the three rooms were let out. I did not write to the Municipality that the three rooms will fetch such and such rents. I did not file any petition in January, 1991. It is not true to say that the petitioners not constructed the three rooms and I am deposing to that effect to drag on the proceedings for some more time."
On the basis of this evidence it is not possible to hold that the respondents constructed the three rooms during the pendency of the appeal or that they could run the hotel business in them.
13. I do not find any substance in the contentions of the learned Counsel for the petitioner questioning the other findings of the Appellate Authority, i.e., as regards the bona fide requirement of the respondents and as regards the relative hardship, as they are based on the facts and circumstances of the case and well supported by evidence on record and I do not find any basis for interfering with those findings. This Court in exercise of the revisional powers under Section 22 of the Act cannot reappreciate the evidenceaslaid down by the Supreme Court in Rukmini Amma v. Kallyani Sulochana, and K.A. Anthappai v. C. Ahnmmed, while dealing with a similar provision - Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. In Rukmini Amina's case, the Supreme Court observed:
"In the impugned judgment in paragraph 7 the High Court observed: 'Under Section 20 of the Act though reappreciation of the evidence as such is not called for, the pleadings and evidence have to be examined to Satisfy the legality, regularity of the order of the lower authorities'. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second Court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Exts.C-1 and C-2 Mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word 'Propriety' it cannot mean that there could be a reappreciation of evidence. Of course, the revisional Court can come to a different conclusion but not on a reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction."
14. In the result, the Civil Revision petition is dismissed. The petitioner is given six weeks time, i.e., upto 2nd June, 1995, for vacating the petition schedule premises. No costs.