Andhra HC (Pre-Telangana)
Boggavarapu Satyanarayana @ Babu S/O. ... vs Batchu Venkataratnam S/O. Papa Rao And ... on 27 October, 2006
Equivalent citations: 2007(2)ALT377
ORDER V. Eswaraiah, J.
1. This civil revision petition is directed against the order dated 18.03.2003 passed in R.C.A. No. 15 of 2000 by the Rent Control Appellate Authority - cum - Principal Senior Civil Judge, Kakinada.
Petitioner is the tenant and the respondents are the landlords. The eviction petition in R.C.C. No. 65 of 1994 on the file of the Rent Controller-cum-Principal Junior Civil Judge, Kakinada, filed by the landlords seeking eviction of the tenant under Section 10(3)(c) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short 'the Act') for additional accommodation of portion of the petition schedule premises in occupation of the tenant was dismissed by order dated 03.06.2000. Aggrieved by the same the landlord filed an appeal in R.C.A. No. 15 of 2000 and the appellate Court by judgment dated 18.03.2003 allowed the appeal ordering eviction of the tenant. Aggrieved by the said judgment the tenant filed this revision petition and during the pendency of this petition the tenant died and his legal representatives i.e. wife and two sons were brought on record.
2. It is the case of the first landlord that the second landlord is the son of the first landlord and the first petitioner is the owner of the shop in occupation of the tenant, which is part of the house bearing No. 33-1-32, Main Road, Kakinada, East Godavari District. It is his further case that the petition schedule property is an old shop room which a temporary structure. It is stated that there was a family partition and as per the partition the entire house was divided into two shares out of which one share fell to the first petitioner's father and another to the first landlord. The father of the first landlord bequeathed his half share in favour of the first landlord and his wife. The father of the first landlord sold away the portion of his share to third parties. The front door or simhadwaram was allotted to the share of the wife of the first landlord and that the passage was especially intended to her share. The landlords have sold the front portion facing the road and retained the back portion for their personal residence, which is an access from north-eastern side through sandhu of 7 feet width but originally a room was constructed of 4 feet width x 18'.9" length, which was leased out to the tenant on a monthly rent of Rs. 380/-. To go to the backside portion of the landlords' residence, the landlords have necessarily go through the northern sandhu, which is only 3 feet width because of the room constructed and leased out to the tenant. It is stared that the southern passage is specially intended for the first landlord's wife only and the landlords have no property on southern side and they have no right to use that passage i.e. sandhu. The wife of the first landlord wanted to dispose her share of the property. There is no other passage for the landlords to go through freely. The present passage is very narrow lane and it is difficult for the landlords to move freely. It is not possible to take cycle or scooter or any big article into the house of the petitioners. The first landlord is an aged person and had a paralytic stroke three years back and got defective vision in view of the eye operation. Unless the passage is free and wide in width, it is difficult for the first landlord to go through freely. The petitioners wanted the petition schedule shop property for their bonafide requirement for their personal use only to demolish the same to widen the passage for the better use of the passage.
By demolishing the petition schedule property the passage will become 7 feet otherwise it is very difficult to people to take scooters and cycles inside, as there is an open drain with a width of one foot on the northern side. The first landlord requested the tenant to vacate the petition schedule shop but the tenant refused to vacate the same.
3. Counter has been filed by the tenant disputing all the allegations and stated that on the existing 3 feet passage there is simhadwaram and also there is another passage towards the extreme south in respect of the property belonging to the first landlord and his wife. Therefore, there are three passages and there are no bonafides on the part of the landlords in seeking his eviction on the ground of additional accommodation for the purpose of widening of the existing passage.
4. It is the case of the landlords that there is no malafide intention in seeking eviction of the tenant as that they intend to demolish the existing structures in occupation of the tenant for making use of the said area as passage alone.
5. Learned Counsel for the petitioner/tenant submits that the learned Rent Controller rightly appreciated the oral and documentary evidence on record and dismissed the eviction petition on the ground that there are no bonafides on the part of the landlords in seeking his eviction. It is further stated that admittedly as on the date of filing of the eviction petition there are two passages i.e. simhadwaram and two feet passage and admittedly the first landlord and his wife jointly sold the property that fell to them including simhadwaram under Ex.A6 dated 13.08.1999 whereas the eviction petition has been filed on 28.12.1994 and therefore, there was no cause of action giving rise to filing of eviction petition for the purpose of additional accommodation as already they were having simhadwaram for their ingress and egress to go to their property. The subsequent sale of simhadwaram will not entitle the landlords for seeking eviction of the tenants. It is further stated that in the eviction petition it is stated that the simhadwaram passage has specifically fell to the share of the wife of but the same has not been stated in the sale deed, which goes to show that the said property sold including the simhadwaram has fallen to the share of both the first landlord and his wife and therefore, it cannot be said that the first landlord was not having any share in the simhadwaram.
6. I have perused Ex.A6. No doubt, Ex.A6 goes to show that in the said property half of the property fell to the share of the first landlord and the remaining half fell to the share of the second landlord but it is not specifically stated that the simhadwaram area has fallen to the share of the wife of the first landlord. Therefore, it cannot be said that simhadwaram area has fallen to the share of the wife of the first landlord.
7. In view of the aforesaid facts and circumstances, I am of the opinion that the only question that arises for consideration is as to whether the landlords are entitled to seek the non-residential portion in occupation of the tenants as additional accommodation for residential purpose under Section 10(3)(c) of the Act.
8. Under Section 10(3)(c) of the Act if the landlord is in occupation of only a part of the building, whether residential or non-residential and if the tenant is in occupation of any portion of the remaining part of the building and if the landlord requires the said portion in occupation of the tenant as additional accommodation for residential purposes or for the purpose of a business which he is carrying on, it is open for the landlord to seek eviction of the tenant.
9. The portion in occupation of the tenant is not a part of the building but it is part and parcel of the main property in which the landlord resides. Admittedly, the first landlord and his wife sold the simhadwaram under Ex.A6, if that be so, there is no passage towards the southern or eastern side and the remaining passage is only 3 feet situated towards the north-eastern side. It is the case of the landlords that if 4 feet wide shop is demolished it would become 7 feet passage, which is required as additional accommodation of the landlords.
10. The landlord, examined as P.W.1, stated that the existing passage is very narrow and inconvenient for his passage and that he is paralytic patient and got defective eyesight and knee pains. The width of the petition schedule property shop is 4 feet and after evicting the tenant, he wants to demolish the said shop room and widen the passage into 7 feet width. The tenant is running a lottery business in the schedule shop. It is stated that he along with his wife jointly sold the southern area of the property including the simhadwaram under Ex.A6 registered sale deed dated 13.08.1999. It is stated that there are no other passages to his house except the 3 feet passage; therefore, he wants to evict the tenant to make it a 7 feet passage.
It is stated that the property sold by them belongs to both of them and they were having right over the passage and he used to use the northern lane only but not the southern lane as per vastu.
11. The contentions of the landlord that the simhadwaram fell to the share of the wife of the first landlord and that they have no right to make use of the said passage and it is only obligation on the part of his wife to make use of simhadwaram are not proved but the fact remains that the entire property situated towards the southern side has been sold resulting that there is no passage available to the landlords except the one on the north-eastern side.
12. Admittedly the wife of the first landlord was having half share in the entire property, which has been sold including the simhadwaram and the passage towards the southern side but in the eviction petition it is clearly indicated that the wife of the first landlord wanted to sell the property and therefore, when she was having undivided share in the entire property, it cannot be said that the first landlord was having malafide intention in seeking eviction of the tenant and it also cannot be said that only to evict the tenant the landlords have sold the property.
13. In fact, the tenant, examined as R.W.1, admitted in his cross-examination that existing passage at the entrance of the lane is 3 feet and at the end it is only 21/2 feet. The suggestion that the first landlord was not keeping good health and suffering from other ailments was denied. R.W.2 stated that the size of the shop in occupation of the tenant is only 10 feet in length and 31/2 feet in width.
14. When an application has been filed seeking eviction under Section 10(3)(c) of the Act, no doubt, the Rent Controller has to satisfy the hardship, which may cause to the tenant by granting eviction where it will outweigh the advantage of the landlord but in the instant case as against the hardship that has been explained by the landlords nothing has been explained by the tenant to show that it would cause more hardship to him if he is evicted. However, it is the specific case of the landlord that they require the area for additional accommodation for having free ingress and egress, as 21/2 feet lane is not sufficient, and also that they want to widen the said passage to 7 feet in view of the fact that the first landlord is a paralytic patient and got a defective eye.
15. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the rent appellate authority on re-appreciation of entire oral and documentary evidence rightly ordered eviction of the tenant under Section 10(3)(c) of the Act. Therefore, the order under revision does not suffer from any illegality, irregularity or impropriety.
16. The civil revision petition is accordingly dismissed. However, now that the main tenant died and the petition schedule shop is in occupation of the legal representatives of the tenant, five months time is granted to them to vacate and handover the vacant possession of the petition schedule shop to the landlords. There shall be no order as to costs.