Andhra HC (Pre-Telangana)
Ratanshi Patel vs Mohd. Kazim Ali Khan And Ors. on 6 June, 2002
ORDER V. Eswaraiah, J.
1. The petitioner - tenant filed this Civil Revision Petition against the judgment dated 13/11/1996 made in R.A.No.29/1994 on the file of the learned Additional Chief Judge:Cum:City Small Causes Court, City Civil Court, Hyderabad, reversing the judgment dated 12/10/1993 made in R.C.No.1007/1987 on the file of the Principal Rent Controller, Hyderabad, under Section 22 of A.P. Buildings (Rent, Lease and Eviction) Control Act, 1960 (for short 'the Act').
2. Respondents 1 to 3 herein filed R.C.No.1007/1997 against the petitioner as well as the other co-owner, who is respondent No.4 herein, under Section 10 (2) (i) of the Act praying the court to make an order directing the petitioner herein to put them in possession of the premises bearing No.8-3-322/1, situated at Yellareddyguda, Hyderabad. It is the case of the petitioner that one Aktharunnisa Begum was the owner of the said premises.During her life time, she let out the said premises to the petitioner herein on a monthly rent of Rs. 600/- and the said Aktharunnisa Begum died on 13/10/1984. After her death, the petitioner herein did not pay the rents from November 1984 to the end of September 1987. The respondents 1,2 and 4 are the grandsons and the respondent No. 3 is the daughter-in-law of the said Aktharunnisa Begum.It is the case of respondents 1 to 3 that they are the some of the heirs of Aktharunnisa Begum and they are entitled to receive the rents and also seek eviction of the suit schedule property. As the 4th respondent did not contest the Rent Control Case, he was set exparte. The petitioner herein filed a counter before the Rent Controller stating that he had purchased the above suit premises from Smt. Aktharunnisa Begum for a consideration of Rs.1,20,000/- vide an agreement of sale dated 27/10/1978 and she also executed another agreement dated 17/12/1981 and, therefore, the tenancy came to an end by virtue of the said agreements.It is the case of the petitioner that as he had purchased the property from Smt.Aktharunnisa Begum, the question of payment of rent by him does not arise at all to the respondents, and therefore, the Rent Control Case is not maintainable.The Rent Controller determined the following points for consideration:
1. Whether there is jural relationship of the landlord and the tenant between the petitioners and the 1st respondent?
2. Whether late Aktharunnisa Begum let out an open space only to the 1st respondent?
3. Whether the 1st respondent is using the premises for a purpose other than that for which it was leased?
3. On the first point, the Rent Controller held that the petitioners have not established the jural relationship between the landlord and the 1st respondent and accordingly held that the petition is liable to be dismissed. In so far as the second point is concerned, the Rent Controller held that Smt.Aktharunnisa Begum let out the open space of petition schedule property to the petitioner herein.In so far as the third point is concerned, it is held that the petitioner is using the premises for the purpose other than it was leased out.Against the said judgment of the Rent Controller, dated 12/10/1993 made in R.C.No.1097/1997, respondents 1 to 3 herein filed R.A.No.29/1994 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad.
4. The Appellate Court, based on the rival contentions, considered the following points for determination:
1. Whether the finding of the learned Rent Controller that the petitioners had not established the jural relationship of landlord and tent between them and the 1st respondent?
2. Whether the 1st respondent has committed default in payment of rent from November, 1984 to September, 1987 and if so, whether the default is not willful?
3. To what relief, the parties are entitled to in this appeal?
5. On the first point, the appellate authority held that the respondents herein, being the heirs of late Aktharunnisa Begum, have succeeded her estate and they have right to possession of every part and parcel of reminder property and they are entitled to a share in the property till it is split into the shares because their right to a share extends to every speck or a grant of the property to the extent of the share they hold therein. As the respondents have succeeded to the estate of late Smt.Aktharunnisa Begum, they are entitled to receive the rents from the petitioner herein. It is further held that the petitioner herein claimed that he had purchased the demised premises from late Aktharunnisa Begum for a sale consideration of Rs. 1,20,000/- by virtue of the agreement dated 27/10/1978 (Ex.R-1) and subsequently she also executed another agreement dated 17/12/1981 (Ex.R-2) and the petitioner paid the rents to her till 1979 and as per the aforesaid agreements he has paid entire sale consideration to the original owner namely; late Smt.Aktharunnisa Begum and therefore, he is not liable to pay any rent and the tenancy has came to an end. Thus, the appellate authority held that as there was no regular sale deed from late Smt.Aktharunnisa Begum and the petitioner was a tenant even before executing the agreements (Ex.R-1 and R-2), he was a tenant and he came into the possession of the demised property as a tenant and not by virtue of agreement of sale (Ex.R-1). He did not obtain possession of the demised premises in pursuance of agreement of sale but he was inducted into possession of the property as a tenant. A mere agreement of sale does not confer any title to the property and unless the agreements of sale are culminated into the regular sale deeds, the relationship of the landlord and the tenant will continue and the liability to pay the rent will not be discontinued. The learned appellate authority held that even after the agreements of sale, the tenancy continues and the ownership continues with the legal heirs of late Aktharunnisa Begum alone. The appellate authority further held that the respondents 1 to 3 are the landlords within the meaning of Section 2 (vi) of the Act. Mere agreement of sale does not confer any title on the petitioner and, therefore, the petitioner is liable to pay the rents till the regular sale deed is executed and accordingly held that the petitioner has committed willful default of payment rents from November, 1984 till September, 1987 and he is liable to be evicted. Thus, points 1 and 2 are held in favour of respondents 1 to 3. In so far as the 3rd point is concerned, it was also answered in favour of respondents 1 to 3 and accordingly the appeal was allowed. Aggrieved by the said judgment of the appellate authority, the petitioner-tenant filed this Civil Revision Petition.
6. The only question that arises for consideration in this revision is whether respondents 1 and 3 herein established the jural relationship of landlord and the tenant with the petitioner herein.
7. The word 'landlord' has been defined under Section 2 (vi) of the Act as follows:
"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.
8. The word 'tenant' has been defined under Section 2 (ix) of the Act as follows:
"Tenant" means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter of a deceased tenant who had been living with the tenant in the building as a member of tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of building, by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been framed out or leased by a local authority."
9. A reading of the definition of the 'landlord' makes it abundantly clear that any person who is entitled to receive rent of a building whether on his own account or on behalf of any other person, if the building is let out to a tenant.The question that arises for consideration in this revision is whether respondents 1 and 3 are entitled to receive the rents in respect of the demised schedule premises. The petitioner has denied the jural relationship of the landlord and the tenant and relied on agreements of sale (Ex.R-1 and R-2).The genuineness or otherwise of Ex.R-1 and R-2 have not been decided or doubted either by the Rent Controller or by the Appellate Authority.As per the recitals of the agreement of sale dated 27/10/1978 (Ex.R-1) executed by late Smt.Aktharunnisa Begum in favour of the petitioner herein, wherein it is stated that late Aktharunnisa Begum was the owner of the premises bearing No.8-3-322/1 and the petitioner was the tenant in respect of the said premises since 1974 on a monthly rent of Rs.350/- and an agreement of sale has also been executed in respect of the said premises for a total sale consideration of Rs.1,20,000/- and the petitioner has paid Rs.20,000/- and the balance amount of Rs.1,00,000/- was agreed to be paid by 30/03/1979 and the petitioner has to pay the rents till the 3rd installment was paid before 30/03/1979 and thereafter, the petitioner need not pay any rents to the vendor and the vendor shall get necessary permission such as, Income tax certificate and Urban Land Ceiling certificate to enable the petitioner herein to get the sale deed registered. Thereafter another agreement dated 17/12/1981 has been executed which is marked as Ex.R-2 according to which the entire sale consideration has been paid by the petitioner to late Smt.Aktharunnisa Begum and she acknowledged the receipt of the total sale consideration and the petitioner was asked to construct the building after obtaining mutation etc., over the said land and there is no time limit for the registration of the sale deed and the registration can be done at any time at the request of the purchaser. Possession was already delivered to the purchaser i.e., the petitioner herein. Both the counsel appearing for the petitioner as well as the respondents have stated that suits are pending for specific performance of the said agreements and be that as it may the fact of the genuineness or otherwise of the said two documents have not been doubted.The lower appellate authority only said that as there was no regular sale deed executed, there is jural relationship between the landlord and the tenant and the tenancy continues. No doubt, the title may not pass until the regular sale deed is executed and registered but that is nothing to do with discontinuance of the jural relationship of the tenant as contemplated under the Rent Control Act. In view of the exhibits R-1 and R-2, late Aktharunnisa Begum and after her death, her successors are not entitled to receive rents form the tenant, and therefore, it cannot be said that the jural relationship of the landlord and the tenant continues.
10. The learned counsel appearing for the petitioner placed reliance on a judgment of the Apex Court in the case of R.R.R. Gopala Rao V. N.G. Sehararao (1) and stated that there was no default in payment of rents much less willful default. In the aforesaid case, there was an oral agreement of sale and an amount of Rs.5,000/- as Earnest Money Deposit was paid to the predecessor of the landlord and the suit filed for specific performance was dismissed in and the appeal filed by the tenant-defendant it was held that he was entitled to purchase the property under the said oral agreement since he has already paid some money by way of Earnest Money Deposit and he was under no obligation to pay the rents to the landlord.
11. In case of M. Rangaiah Naidu v. Abdul Karim Khan (2) the Supreme Court held that the meaning of the words 'willful default' indicate that the default in order to be willful must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. Therefore, as per the proviso to Section 10 (2) of the Act, the Rent Controller so satisfied that he must be given an opportunity to the tenant to make good the arrears within a reasonable time and if the tenant does so within the time prescribed, he must reject the landlord's application for eviction.In the instant case, the petitioner paid the entire sale consideration in respect of the suit premises. It is stated that the suits for specific performance of the said agreements of sale are pending before the Civil Court between the parties and there is no final adjudication. Therefore, the bona fide belief of the petitioner - tenant is that he has purchased the property under the said written agreement of sale. He has paid entire sale consideration and according to the recitals of the agreements Ex.R-1 and R-2 he is not only entitled to continue the possession but also he need not pay any rent and he can develop the property and make use of the property for any purpose.In order to secure eviction for nonpayment of rents or for making use of the premises for any other purpose, the respondents shall have to establish the jural relationship of the landlord and the tenant. But in the instant case, the respondents have not established any jural relationship of the landlord and the tenant and the petitioner is continuing in possession in view of the aforesaid two agreements of sale ( Ex.R-1 and R-2), and therefore, the respondents have not shown that the default on the part of the petitioner was intentional, deliberate, calculated of conscious with full knowledge of legal consequences. Here is the tenant, who is the petitioner, felt that he had invested huge amount and paid entire sale consideration of Rs.1,20,000/- and purchased the said property by agreement of sale but due to noncompliance of the other formalities such as, clearances of Income tax certificate, Urban Land Ceiling certificate etc., from the authorities concerned, execution of regular sale deed has been delayed and by reason of nonexecution of regular sale deed, the title to the property may not be marketable one but it does not mean that the jural relationship of the landlord and the tenant continues even after executing Exs.R-1 and R-2. It is not the case of the tenant who failed to pay rents without any reason. The reason for non-payment of rent is that he genuinely believed that he had purchased the property and that he was under no obligation to pay it and, therefore, I am of the opinion that this a case which the Rent Controller has rightly held that the jural relationship between the landlord and the tenant has not been established and the Appellate Authority is not right in holding that there is a jural relationship of landlord and tenant by reason of nonexecution of a regular sale deed.
12. I am, therefore, of the opinion that ejectment of the decree cannot be allowed to stand as ordered by the appellate authority. Accordingly, judgment made in R.A. No.29/1994 is set aside.
13. In the result, Civil Revision Petition is allowed setting aside the eviction order. There shall be no order as to costs.