Andhra HC (Pre-Telangana)
Vankayala Suryanarayana And Anr. vs Sri Sitarama Chit Fund Company ... on 24 September, 1992
Equivalent citations: 1993(1)ALT120
JUDGMENT Immaneni Panduranga Rao, J.
1. This revision petition is filed by two auction purchasers in execution of a mortgage decree. The 1st respondent has obtained a money decree in O.S.No. 80 of 1971 on the file of Sub-Court, Rajahmundry based upon an equitable mortgage dt.11-12-1969 executed by the 2nd respondent in favour of the 1st respondent. The revision petitioners obtained transfer of the mortgage decree in their favour and with the permission of the Court they have participated in the Court sale held on 10-4-1979 and were the highest bidders. Just a day prior to the sale, i.e., on 9-4-1979, the 3rd respondent filed E.A.No. 256 of 1979 requesting that the intending bidders might be appraised of the fact that the petition schedule premises was under the lease-hold rights. The execution court dismissed that petition on the ground that it is a belated petition and that the lease is subject to mortgage. Challenging the order in E. A.No. 256 of 1979 the 3rd respondent filed C.R.P. No. 3172 of 1979. Muktadar J., has dismissed that petition on 27-2-1980 observing that the 3rd respondent can seek the assistance of the civil court, if so advised and if his objections are maintainable, and holding that those objections cannot be considered in the revision petition.
2. The 3rd respondent filed R.C.C.No. 86 of 1984 and the 4th respondent filed R.C.C.No. 89 of 1984 impleading the decree holder, the judgment debtor and the court auction purchasers for a declaration that they shall not be evicted in execution of the decree or otherwise except in accordance with the provisions of Sections 10,12 and 13 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, (hereinafter referred to as 'the Act')- Both those cases were dismissed on the ground that the Rent Controller is not competent to grant such a relief. Respondent No. 3 and the respondent No. 4 filed R.C.A. Nos. 17 and 18 of 1983 and the auction purchasers filed cross-objections. The appellate authority dismissed the appeals and allowed the cross-objections holding that the right of commencement of tenancy shall be determined only by the civil court, but, not by the Rent Controller. 3rd and 4th respondent filed C.R.P. Nos. 2823 and 2824 of 1987 and they were dismissed on 16-3-1990.
3. Thereupon the petitioners herein filed E. A.No. 46 of 1984 under Order XXI, Rule 95 C.P.C. seeking physical delivery of the suit property after ejecting respondents 2 to 4 therefrom, claiming that by virtue of the leases in their favour they cannot be evicted except under due process of law as provided under the Act and that the auction purchasers are not entitled for physical delivery of the suit property.
4. The learned Subordinate Judge on a consideration of the oral and documentary evidence held that the 3rd respondent entered into a portion of the suit property as tenant for the first time under Ex.B-129 lease deed dated 5-11-1970 and mat the 4th respondent is in occupation of another portion of the suit property in his own right as tenant therein from at least 1968 onwards. The learned Subordinate Judge, therefore, held that in as much as the 4th respondent was in possession even prior to the creation of the suit mortgage, Section 65-A of the Transfer of Property Act has no application to his lease. The learned Subordinate Judge, however, held that the application of the Act to the suit building cannot be in dispute; that under Section 10(i) of the Act a tenant shall not be evicted except in accordance with Sections 10,12 or 13 of the Act and that the respondent Nos. 3 and 4 cannot, therefore, be evicted except under the specific provisions of the Act, because, the provisions of Transfer of Property Act are not applicable to leases governed by the Act. He further observed mat Section 52 of Transfer of Property Act is also not applicable because, the leases did not come into existence during the pendency of the suit and the respondent Nos. 3 and 4 were not made parties to the suit. Relying upon the decision of the Supreme Court in Dev Raj Dogra v. Gyan Chand Jain, the learned Subordinate Judge held that the auction purchasers are not entitled for physical delivery of the scheduled property under Order XXI, Rule 95 of C.P.C. after ejecting respondents 3 and 4 therefrom. Consequently he dismissed E.A.No. 46 of 1984.
5. Challenging the said decision, the auction purchasers have preferred the above revision petition.
6. The learned counsel for the petitioners as well as the learned counsel for the contesting respondent Nos. 3 and 4 have addressed very elaborate arguments. The learned counsel for the petitioners submitted that the learned Subordinate Judge has committed a grave error in relying upon the decision in Dev Raj Dogra v. Gyan Chand jain, which is clearly distinguishable on the facts of the case on the ground that the revision petitioners-auction purchasers are transferee decree holders and as such they have stepped into the shoes of the original decree holder and the principle enunciated by the Supreme Court in respect of an utter stranger auction purchaser cannot be applied to the facts of the case. He argued that the decision in the earlier proceedings operates as res judicata and that the leases are hit by Section 65-A of Transfer of Property Act. He further argued that the execution of registered lease deeds on 2-2-78 by respondents No. 3 and 4 amounts to implied surrender of the rights of the lessees under the earlier lease deeds and, therefore, they cannot fall back upon the rights, if any, accrued to them under anterior leases in their favour.
7. The learned counsel for the 3rd respondent argued that both the leases in favour of the 3rd and 4th respondents were granted before the filing of the suit; that the 3rd and 4th respondents were not imp leaded as parties to the suit; that they themselves got impleaded at the stage of execution; that when their possession is valid, the 3rd and 4th respondents can be evicted only under due process of law provided under the Act; that the subsequent lease transactions cannot defeat the rights of 3rd and 4th respondents for possession and that under Order XXI, Rule 96 C.P.C. the auction purchasers are entitled only for symbolic delivery, but, not for physical delivery of the suit property.
8. The learned counsel for the 4th respondent argued that as per the finding of the learned Subordinate Judge, the 4th respondent was in possession of a portion of the suit property as a lessee even prior to the mortgage; that as such Section 65-A of the Transfer of Property Act cannot have any application to the 4th respondent; that the 4th respondent is not a party to E. A.No. 2.56 of 1979; that therefore, the decision in C.R.P.No. 3172 of 1979 does not operate as res judicata against 4th respondent and that in view of the provisions of the Act which is a special enactment, the provisions of Transfer of Property Act cannot be made applicable to the facts of the case and as such the respondent Nos. 3 and 4 cannot be evicted except under due process of law contained in Sections 10,12 and 13 of the Act, but, not otherwise. He, therefore, argued that the order of the learned Subordinate Judge is perfectly correct.
9. On the submissions made by the learned counsel for the petitioners and of the respondent Nos. 3 and 4, the only point that arises for consideration in this case is, "Whether the revision petitioners-auction purchasers are entitled for physical delivery of the portions of the schedule property under Order XXI, Rule 95 C.P.C. after ejecting respondent Nos. 3 and 4 therefrom?"
10. The mortgage suit was filed on 8-4-1971 based upon the mortgage deed dt.l 1-12-69. The 3rd respondent came into possession of a portion of a suit property on 5-11-70, subsequent to the mortgage, whereas respondent No. 4 came into possession of another portion of the suit property even prior to the mortgage in the year 1968. The lease of the 3rd respondent was renewed by a registered lease deed dt.1-2-73 and again on 2-2-78 under Ex.B-131. The 4th respondent executed a registered lease deed as per Ex.B-4 on 2-2-78. Both the registered lease deeds executed by the 3rd and 4th respondents on 2-2-78 are for five years each. The learned counsel for the petitioners argued that irrespective of their rights under the leases of the years 1968 and 1970, when once respondents 3 and 4 have executed registered lease deeds on 2-2-78, they are deemed to have surrendered their rights under the earlier leases by virtue of implied surrender, as provided under Section lll(f) of the Transfer of Property Act and the illustration thereunder. According to him neither the 3rd respondent nor the 4th respondent can fall back upon the earlier leases and their rights are governed by the fresh lease deeds executed by them on 2-2-78. Since these fresh leases are subsequent to the mortgage and subsequent to the suit, the learned counsel for the petitioners argued that Sections 52 of Transfer of Property Act and Section 65-A of the Transfer of Property Act are attracted.
11. The learned Counsel for the 4th respondent relying upon the Full Bench decision of our High Court in P. Narasimha Rao v. K.R. K. Acharyulu, 1978 (l)APLJ 308 and the decision of the Supreme Court in Puwada Venkateswam v. C. V. Ramana, argued that the Act is held to be a self contained code and hence the provisions of the Transfer of Property Act cannot be applied to the matters covered by the Act. It is no doubt true that the Rent Control Act is a self contained code in so far as the matters covered by it and as contended by the learned counsel for the 3rd and 4th respondents, eviction of a tenant cannot be ordered exceptin accordance with the provisions contained under Sections 10,12 and 13 of the Act. But, it is significant to note that Section 3 of the Act does not provide that the eviction of the tenant is the only mode by which a vacancy of a tenanted premises can be created. Section 3 contemplates of a vacancy of the demised premises arising by termination of a tenancy or by eviction of the tenant or by release from requisition or otherwise. From a reading of Section 3, it, therefore, follows that the Act does not confine the vacation of a demised premises only by means of eviction of the tenant, but, contemplates of the premises being vacated by other modes such as termination of tenancy or release from requisition or otherwise. That being the case, the submissions made by the learned counsel for the respondent Nos. 3 and 4 based on the assumption that the vacation of the premises can only be by way of eviction of a tenant cannot be accepted. It is only for eviction of the tenant that the landlord has to satisfy the authorities provided under the Act with regard to the grounds of eviction. There is no prohibition in the Rent Control Act for surrender of the premises by the tenant which is a voluntary act. The word used in Section 3 "otherwise" is very significant and contemplates of any other mode of vacancy arising of the suit premises which includes either specific or implied surrender as contemplated under the Transfer of Property Act. I, therefore, hold that the provisions of Section lll(f) of the Transfer of Property Act providing for implied surrender of the suit premises cannot be deemed to have been excluded by virtue of the provisions of the Rent Control Act.
12. The learned counsel for the 4th respondent relied upon the decision of the Supreme Court in Ram Chandra v. Govind in support of his contention that even for surrender by tenant, the provisions of Bombay Tenancy and Agricultural Lands Act are held to be mandatory and non-compliance of those provisions vitiates the surrender. The judgment of the Supreme Court shows that the provisions of Bombay Tenancy and Agricultural Lands Act prescribing the manner of verification of a surrender of tenancy by a tenant in order to be valid and effective are mandatory. Taking into consideration the imperative language their Lordships of Supreme Court held that failure to comply with those provisions renders the surrender non est. The decision of the Supreme Court with regard to the surrender by the tenant is thus based upon the imperative language used in the Bombay Tenancy and Agricultural Lands Act. Even the Andhra Tenancy Act requires intervention of the Court for surrendering the tenancy rights by the tenant. But, since the Rent Control Act is silent with regard to any procedure prescribed for surrendering the tenancy by the tenant by not incorporating any provision prohibiting surrender by the tenant, I hold that the Rent Control Act does not either specifically or impliedly prohibit the surrender by the tenant which is totally a voluntary act.
13. It, therefore, follows that when once respondents 3 and 4 have executed registered lease deeds on 2-2-78 they have, by their conduct, impliedly surrendered their tenancy rights in portions of the suit property. Therefore, by virtue of Section 65-A of Transfer of Property Act such a renewed lease shall be limited to a period of three years inspite of the fact that the registered lease deeds executed on 2-2-78 provided for a period of tenancy of five years.
14. If an authority is needed in support of my conclusion, that the provisions of Section 111 (f) of Transfer of Property Act providing for implied surrender of the suit premises cannot be deemed to have been excluded by virtue of the provisions of the Rent Control Act, it is found in tine division Bench decision of Andhra High Court in Venkayya v. Venkata Subba Rao, 1956 (II) An.W.R. 1093 which is a case arising under the Madras Rent Control Act, the provisions of which are exactly identical with the provisions in the Andhra Pradesh Rent Control Act. That decision dealt with a factory consisting of land and buildings. The Division Bench held that the doctrine of implied surrender is applicable in India, if a land lord and tenant by mutual agreement do any act or enter into any transaction which is inconsistent with the continuance of the existing lease or tenancy and that the earlier transaction is deemed or assumed to have been terminated in order to enable the latter to operate according to its tenor. Even the Supreme Court in Modern Hotel, Gudur v. K. Radhakrishnaiah, upheld the application of Section lll(g) of the Transfer of Property Act in respect of a Building covered by the provisions of the A.P. Rent Control Act. Inasmuch as the lease for a term of 30 years did not stipulate a forfeiture clause, the Supreme Court held that in the absence of a forfeiture clause in the lease leading to termination by forfeiture, the contractual tenancy subsisted under the provisions of the Transfer of Property Act. The above two decisions support the view taken by me that the provisions of the Transfer of Property Act in respect of matters not exclusively covered by the Rent Control Act, are not excluded.
15. The learned counsel for the 4th respondent relied upon the decision of the Supreme Court in Nai Baku v. Lala Ramnarayan, and Murlidhar v. State of U.P. , in support of his contention that the provisions of the Rent Control Act completely exclude the provisions of any other law including Transfer of Property Act. In Nai Baku v. Lala Ramnarayari, the Supreme Court has laid down that even when there is a compromise between the parties, the landlord cannot obtain eviction of the tenant unless he can satisfy the requirements of the provisions of the Rent Control and Restrictions Acts in operation and the court is satisfied that there are permissible grounds for eviction disclosed in the pleadings and the other materials on record. The Supreme Court held that the decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties. In Murlidhar v. State of U.P., the Supreme Court in a case arising under the U.P. Rent and Eviction Act held that an agreement in the lease deed that parties will never claim the benefit of the Act and that the provisions of the Act will be inapplicable to the lease deed is illegal being hit by Section 23 of the Contract Act. The above decisions of the Supreme Court only show that the parties to a lease agreement in respect of a building cannot agree to waive the benefits under the Act nor can a compromise decree be passed bypassing the provisions of the Rent Control Act. The above decisions do not lay down that even in respect of matters not covered by the Rent Control Act, the provisions of the Transfer of Property Act are inapplicable.
16. The learned counsel for the revision petitioners argued that the subsequent leases executed by respondent Nos. 3 and 4 are hit by the doctrine of Us pendens. Section 52 of Transfer of Property Act applies only when any right to immovable property was created by a party to the suit or proceeding so as to affect the rights of any other party. The submission of the learned counsel for the petitioners is that since the leases of the year 1978 came into existence subsequent to the filing of the suit, Section 52 of the Transfer of Property Act operates against them. But, these leases have come into existence long after the preliminary and final decrees were passed in the mortgage suit. Though the original leases were in force by the time of filing of the suit, the 3rd and 4th respondents were not impleaded as defendants in the suit. There is no material on record to show as to when E.P.No. 99 of 1978 was filed so as to conclude that the lease deeds dt.2-2-78 were executed during the pendency of the Execution Petition. Respondents 3 and 4 were not made parties even to E.P.No. 99 of 1978. It is only in 1984 that they have filed petitions and got themselves impleaded in the Execution Petition. I, therefore, hold that Section 52 of the Transfer of Property Act has no application to the facts of this case.
17. The learned counsel for the petitioners tried to argue that the decision in E.A.No. 256 of 1979 which is confirmed by the judgment of this Court in C.R.P.No. 3172 of 1979 has become final and it operates as resjudicata. E.A.No. 256 of 1979 was filed only by the 3rd respondent, but, not by the 4th respondent. Therefore, that decision cannot operate as resjudicat a against the 4 th respondent who is not a party to that proceeding. Even against the 3rd respondent it does not operate as res judicata, because, of matter directly and substantially in issue in E.A.No. 256 of 1979 was whether the tenancy should be notified in the sale proclamation. The question whether the tenants have right to -continue in possession under the lease deeds dt.2-2-78 was not directly and substantially in issue in the earlier proceedings. Therefore, I agree with the learned counsel for the respondent Nos. 3 and 4 that the principle of res judicata cannot be invoked to the facts of this case.
18. The learned counsel for the 4th respondent relied upon the decision of the Supreme Court in Biswabani Pvt. Ltd. v. Santosh Kumar, in support of his contention that when a tenant was inducted validly for a specified period, and the rent Act came into force prior to the renewal of the lease, the possession of the tenant becomes that of a statutory tenant. In that case during the continuance of the original lease of five years, the West Bengal Premises Rent Control (Temporary Provisions) Act came into force and after the expiry of the period covered by the original lease, the lease was renewed for a further period of five years. The 2nd lease was found to be void for want of registration. The Supreme Court held that on expiry of the contractual tenancy, the tenant became a statutory tenant under the provisions of the Rent Control Act and could not be forcibly evicted inspite of the fact that the subsequent lease is void. That decision cannot have application to the facts of this case where the subsequent leases executed by respondent Nos. 3 and 4 on 2-2-78 are perfectly valid. It is not as if the respondent Nos. 3 and 4 have become statutory tenants only by virtue of the subsequent lease deeds executed by them. They were tenants entitled to the statutory protection even prior to the execution of the lease deeds on 2-2-78 and their conduct in executing the lease deeds on 2-2-78 during the continuance of the earlier leases amounts to implied surrender as provided under the illustration to clause (f) of Section 111 of Transfer of Property Act. In that view of the matter such leases determine after the expiry of the period stipulated thereunder. Though the period of lease stipulated under the registered leases dt.2-2-78 is five years, by virtue of Section 65-A, sub-section (e) of Transfer of Property Act the duration of those leases is restricted to three years and the leases have been determined with effect from 2-2-1981.
19. The decision of the Supreme Court in Dev Raj Dogra v. Gyan Chand Jain (1 supra), relied upon by the learned Subordinate Judge is distinguishable on the facts of this case and is not applicable. In that case the auction purchaser was an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale. It is under these circumstances that the Supreme Court held that such an auction purchaser was not entitled to recover physical possession from the tenants. But, in this case, as I observed already, the revision petitioners are transferee decree holders. As such, they have stepped into the shoes of the decree holder and hence they cannot be termed as outsiders or utter strangers to the suit property. Whatever may be the position of an outsider auction purchaser in seeking recovery of physical possession of property purchased by him in the court auction from the tenants who are in possession of different portions, I hold that the revision petitioners who are transferee decree holders and who have stepped into the shoes of the original decree holder are entitled for recovery of physical possession of the portions of the suit schedule property from the tenants (respondents 3 and 4) under Order XXI, Rule 95 of C.P.C.
20. I accordingly allow the revision petition setting aside the order of the learned Subordinate Judge and directing the respondents Nos .3 and 4 to deliver vacant possession of the portions of the suit schedule property in their possession to the revision petitioners. I, however, direct each party to bear its own costs in the petition. Two months' time is granted for vacating the premises.