Andhra HC (Pre-Telangana)
Syed Sadak Ali Khan And Ors. vs Deepthi Builders And Ors. on 6 June, 2007
Equivalent citations: 2007(5)ALD461, 2007(6)ALT4
ORDER C.Y. Somayajulu, J.
1. Since all these proceedings are interconnected, they are being disposed of by a common order.
2. For the sake of convenience, the parties to these proceedings would hereinafter be referred to as they are arrayed in CRP No. 633 of 2004.
3. In the suit filed by the first respondent seeking a decree of perpetual injunction restraining the revision petitioner from interfering with his possession over the plaint schedule property he filed two petitions (i) under Order 39 Rules 1 and 2 seeking an injunction during the pendency of the suit restraining the revision petitioners and their agents and servants or any persons claiming through them, from interfering with its peaceful possession and enjoyment over the plaint schedule property i.e. land measuring 1,012.12 sq.yards in S. No. 43 at Sarojinidevi Road, Secunderabad and (ii) under Section 151 CPC seeking permission to deposit half share of the revision petitioner in the arrears of rent and future rent in respect of the suit property, alleging that the revision petitioners who are the owners of the vacant site of 1,012.12 sq. yards in S. No. 43 at Sarojinidevi Road, Secunderabad wanted to construct a building complex therein but as the Municipal Corporation, Hyderabad, earmarked that property as a park they could not obtain permission for construction of a building therein, and so they approached it for construction of a multi-storied complex in that site on an understanding that that site would be leased to it for 15 years on an annual rent of Rs. 90,000/- from 9-8-1996 to 8-9-1991 and at Rs. 1,00,000/- p.a. from 9-9-1991 to 8-9-1996 and at Rs. 1,29,600/- p.a. from 9-9-1996 to 8-9-2001 and that after 15 years lease period half share of the constructed building would go to it and the remaining half share would go to the revision petitioners and though it paid the rents till 8-9-2001, revision petitioners, got issued a legal notice on 25.5.2000 claiming arrears of rent and so it sent the rents through cheques and pay orders under reply dated 13-6-2000 and that the revision petitioners, after receiving the reply sent a notice on 5.9.2001 demanding vacation of their half share portion of the building, for which it sent a reply on 28-9-2001 and as there was a clear understanding between it and the revision petitioners that after expiry of the 15 years lease period, revision petitioners have to execute and register a sale deed in respect of its half share in the premises constructed by it at a huge cost and as the revision petitioners, by relying on a nominal document executed by it, which was never acted upon, are falsely claiming the entire building constructed by it as theirs have issued a legal notice dated 1-4-2002 to its tenants with false allegations claiming rents from them, though they have no privity of contract with those tenants inducted by it, revision petitioners may be restrained by an injunction from interfering with its possession over the suit property and it may be permitted it to deposit the half of arrears of rent and the future rents payable to the revision petitioners into Court.
4. The case of the revision petitioners, in brief, is that Smt. Aparna and Smt. Deepthi daughters of the proprietrix of first respondent, are not the tenants of the suit premises and that first respondent set up a false tenancy in their favour to create future litigation and that the suit property in fact is in the occupation of only two tenants and that there was no understanding between the parties to give 50% of the building to be constructed by it in the site leased out to the first respondent, and that there was no agreement to register a sale deed in respect of 50% of the building in favour of the first respondent and that all the terms and conditions agreed between the parties were reduced into writing on 9.9.1986, and except that agreement there are no other agreements or understandings between the parties and that the first respondent constructed the building in the site leased out to it in pursuance of the said agreement as per the plan sanctioned by the Municipal Corporation and so first respondent does not have title to any part of the building constructed by it in pursuance of the agreement of lease in view of the terms of the lease agreed upon, and as per those terms tenants in occupation of the suit property became their tenants and so the first respondent has no right to collect rents from those tenants and that the first respondent filed the suit only with a view to harass and inconvenience them and as they already filed a suit seeking eviction of the first respondent and others from the suit property, and as the first respondent ceased to be their tenant after expiry of the lease and as a notice to quit was served on the first respondent on 25.5.2000, it is not entitled to any of the reliefs sought.
5. In support of the case of the first respondent Exs.A1 to A14 were marked and in support of the case of the revision petitioners Exs.Bl to B6 were marked. The learned Senior Civil judge, holding that Ex.Bl agreement of lease is inadmissible in evidence for want of registration and as the contentions raised by parties can be decided only after trial and as no prejudice would be caused to the revision petitioners if injunction and permission as sought by the first respondent is granted, allowed those two petitions. Questioning the injunction granted against them revision petitioners preferred an appeal to the I Additional Chief Judge, City Civil Court, Secunderabad and questioning the order granting permission to the first respondent to deposit half share of rents to the credit of the suit, revision petitioners preferred CRP No. 4447 of 2002 to this Court. CMA preferred by the revision petitioners was transferred to this Court, to be heard along with CRP No. 4447 of 2002 filed by them.
6. In the suit filed by revision petitioners seeking eviction of the respondents from the suit property alleging that the first respondent who took its vacant site on lease for a period of 15 years for construction of a building and agreeing to vacate the premises after the expiry of 15 years, failed to pay rents regularly and is continuing in possession of the property in spite of notice to quit, they filed a petition under Section 151 CPC seeking a direction to respondents 2 to 7, who were inducted by the first respondent as tenants to deposit the monthly rents to the credit of the suit, on the ground that the period of lease agreed to between them and the first respondent expired and so as per the terms of the agreement, the tenants inducted by the first respondent have to pay the rents to them.
7. First respondent contested the said petition inter alia contending that there is no valid or enforceable lease between it and the revision petitioners and as per the understanding between them it is entitled to 50% of the building constructed by it in the site and that the revision petitioners, who agreed to execute a sale deed in respect of that half share have not been executing the sale deed in its favour inspite of demands and as there is no privity of contract between respondents 2 to 7 and the revision petitioners, they cannot be directed to deposit the rents into Court.
8. Second respondent also contested the petition.
9. The learned Additional Chief Judge, without considering the contentions raised by the parties, dismissed the said petition only on the ground that permission was already granted to the first respondent to deposit half share of the arrears of rent and half share of the future rents to the credit of the suit filed by it. Aggrieved by the dismissal of their said petition, revision petitioner filed CRP No. 633 of 2004 which was ordered to be heard along with the two above proceedings. As such all these three matters came up before me for hearing.
10. The points for consideration in these proceedings is
(i) Whether the first respondent is entitled to the injunction sought?
(ii) If so, whether the respondents can be directed to deposit the rents payable by them into Court?
11. The admitted facts are, a vacant site of 1012.12 sq.yards belonging to the revision petitioners was let out to the first respondent for a period of 15 years for construction of a building therein. First respondent constructed a building therein and had inducted tenants into that building. There is a dispute regarding Ex.Bl lease deed marked by common order in Tr.CMP No. 3421 of 2004 and CRP No. 4447 of 2002 because the case of revision petitioners is that it is an agreement of lease and on the other hand the case of first respondent is that that Ex.Bl is only a nominal document and was never acted upon. Document marked as Ex.B-3 in those proceedings is the letter dated 5-2-1990 written by the General Manager of the first respondent to the father of the revision petitioners. It reads:
We enclose herewith a N.O.C under Section 269-UL of the Income Tax Act, 1961 received from the appropriate authority, Income Tax Department, Bangalore, indicating that they have no objection for the agreement dated 9th September, 1986 entered by you/your sons in favour of Smt. S. Premalatha, Proprietrix, Deepthi builders.
"the agreement dated 9th September, 1986 referred to in Ex.B-3 has to be Ex.Bl, because it is not the case of respondents that there is any other document dated 9-9-1986 except Ex.B-1. In view thereof, prima facie, it cannot be said that the first respondent has no knowledge of Ex.Bl and that it was never acted upon. It is no doubt true that in the first line in the first page of Ex.Bl the figure '9th' is rounded off and the figure 12th is put. But that may not be much of consequence because in page 6 of Ex.Bl it is clearly stated:
In witness thereof, the parties hereunto set and signed the 9th day of September, One thousand Nine Hundred and Eighty six, at Secunderabad.
Ex.Bl also contains the stamp and the signatures of its proprietrix of first respondent on all pages.
12. As rightly observed by the trial Court from a reading of Ex.Bl it, prima facie, is a lease deed but not a mere agreement to lease. Since the period of lease fixed under Ex.B-1 is for 15 years, it necessarily has to be registered in view of Section 107 of the Transfer of Property Act read with Section 17 of the Registration Act. Though Ex.B1 is not registered the admissions contained therein can be taken into consideration as a Division Bench of this Court in G. Balakishtiah v. B. Ranga Reddy , held:
There is also sufficient authority for the proposition that an unregistered document can be admitted in evidence for the purpose of proving the admission contained therein.
In the absence of a contract or local usage to the contrary, as per Section 108(h) of the Transfer of Property Act, the lessee, on the determination of the lease can remove, whilst he is in possession of the property leased out, all things which he has attached to the earth; provided he leaves the property taken on lease by him in the state in which he received it. The contention of the first respondent that there was a dispute with regard to the nature of the demised land and that the Municipal Corporation of Hyderabad was claiming it to be a park, prima facie cannot be believed firstly because he did not produce any such document and secondly because in clause 5 of Ex.Bl it admitted that revision petitioners have a sanction plan for construction of a building in the demised land in their favour. Therefore, prima facie the contention of the first respondent that it had encountered some difficulties in getting approval of the plan, from the municipal corporation of Hyderabad cannot be believed.
13. Clause 5 of Ex.Bl reads:
The lessee at her own costs construct the building (super structure) as per the plan already sanctioned by the Municipal Corporation of Hyderabad Secunderabad division vide permit No. 92/77, dated 7.4.1986 with permissible deviations and as per the specifications, mentioned in Schedule 'B'. The constructed building complex shall be for the benefit of and vest in the Lessors only. In consideration of the construction having been undertaken by the Lessee, the Lessors have agreed to receive the rentals at concessional rates as specified herein below and for a long term lease of fifteen years. The Lessee shall have the right to sub-let the building or portions thereon subject to the terms and conditions herein contained.
which is an agreement contrary to Section 108(h) of Transfer of Property Act and so the first respondent prima facie cannot have the benefit under that Act. In spite of the above clause, first respondent who is claiming 50% right in the building constructed by it in the demised land, did not produce any document to show that there is an agreement which enables it to claim 50% share in the building constructed in the demised land. The above admission of the first respondent in Ex.Bl prima facie shows that the constructed building vests in the lessor after expiry of the period of lease. So, prima facie, question of the first respondent removing the super structure raised by it or its being entitled to 50% of the suit property does not arise.
14. From the exhibits marked in the common order, out of which CRP No. 4447 of 2002 and Tr.CMP No. 3421 of 2004 arise, it is seen that the revision petitioners issued Ex.Al notice dated 11-6-1997 to the first respondent setting out the details of the terms agreed between them for which first respondent sent Ex.A2 reply dated 2-8-1997 through its advocate admitting that it entered into an agreement of lease with the revision petitioners on 12-9-1986 and the rates of rent mentioned in Ex.Al but denied that there was an agreement to enter into a regular lease deed on a proper stamp paper and asserted that revision petitioners agreed to give "an option for renewal of the lease for a further period of 5 years after the expiry of initial period of 15 years" to the first respondent and it is further stated:
My clients have constructed about 15,000 sft on the land situated at 43, Sarojini Devi Road, Secunderabad admeasuring 1012.12 sq.yards after obtaining the requisite permission from the Municipal Corporation of Hyderabad by your client and have many sub-tenants and were regularly paying the rents to your clients but for the Income Tax Department attaching the rents and is demanding payment of Rs. 40,000/- out of the rents collected.
15. Thereafter the revision petitioners issued Ex.A3 notice to the first respondent through their Counsel on 25-5-2000 informing that as the period of lease would be coming to an end by 8-9-2000 due to efflux of time, and as they are not interested in renewing the lease, the occupants of the building may be informed to attorn to them. For that notice first respondent sent Ex.A4 reply reading:
It is true that my client developed the property and taken up the lease for a long period and it is also true that the agreed rent is Rs. 1,29,600/- (Rupees one lakh twenty nine thousand and six hundred only) per annum. It is also true that my client paid the rents without any defaults earlier but due to attachment of the rents by Income Tax Department for certain time rents were not paid properly. As we received your legal notice it is regret to inform you that the collection of rents from my clients subtenants are not regular. And it has become problem to collect the rents in time, due to which the delay is caused for the payment as you have referred. Thus my client now hereby issued cheques for the sum of Rs. 61,270-00 (Rupees sixty one thousand two hundred and seventy only) out of Rs. 2,56,200/- (Rupees two lakhs fifty six thousand two hundred only) from her own funds to your clients through you. The remaining amounts due i.e. Rs. 1,94,930 (Rupees one lakh Ninety four thousand nine hundred thirty only) will be paid as soon as possible.
Further I hereby request you to direct your clients to receive the remaining amounts due directly at their convenience. And your clients will be informed for the remaining arrears of rent to collect from my client.
In reply to the last Para of your legal notice answer will be given at the proper time as per the understanding arrived between your clients and my client.
and later sent Ex.A-6 rectification notice dated 14-6-2000 that the amount of Rs. 61,270/- mentioned in Ex.A-4 should be read as Rs. 74,200/- and that the remaining balance of Rs. 1,82,000/- would be paid as soon as possible. Thereafter, revision petitioners sent Ex.A5 notice dated 24.6.2000 through their Counsel informing the first respondent:
My clients are receiving the amounts without prejudice to their rights and contentions. There is no understanding between my clients and your client. My clients are certain that they do not want the lease to be extended any further.
Please advise your client to comply with the notice without any further correspondence.
and followed it by Ex.A7 notice dated 5-9-2001 requesting the first respondent to vacate the suit premises by 8-9-2001 as the lease in its favour would come to end by then, for which the first respondent sent Ex.A8 reply dated 28-9-2001, setting up an agreement that on completion of 15 years period of lease, revision petitioners have to execute and register the sale deed for 50% share of the property in favour of the first respondent and in turn the first respondent will have to release 50% share to the revision petitioners.
16. In Ex.A2 reply notice to Ex.A-1 first respondent did not even whisper about its being entitled to 50% share of the property on expiry of the period of lease. For that reason and since no document evidencing such agreement is produced by the first respondent, who set up such agreement for the first time in Ex.A8 reply dated 28-9-2001, that plea prima facie appears to have been taken as an after thought to enable the first respondent continuing in possession of the suit property for as long a period as possible, by enjoying the rents from by the tenants inducted by it by driving the revision petitioners to Court to seek its eviction. In fact, the stand taken by the first respondent in Ex.A-2. reply that it has an option to seek renewal of the lease for a further period of 5 years, after expiry of the initial period of lease of 15 years, cuts at the root of the claim of the first respondent that revision petitioners agreed to execute a deed for 50% share in the suit property. If such an agreement were to be there prior to issuance of Ex.A2, first respondent would not have claimed in Ex.A8 that it has an option to continue the lease for a further period of 5 years after expiry of initial period of 15 years lease.
17. Since the revision petitioners filed a suit seeking eviction of the first respondent from the suit premises, and seeking a direction for deposit of rents, the contention of the first respondent that the revision petitioners are high handedly trying to interfere with the possession of the tenants cannot be believed. Since first respondent failed to establish that revision petitioners ever tried to dispossess it or the tenants by use of force and since a person who approaches Court with a false case is not entitled to the equitable relief of injunction it cannot be said that first respondent has a prima facie case. The balance of convenience also is not in its favour and first respondent would not be put to any loss much irreparable loss if the injunction sought by it is not granted. In view thereof, the trial Court was in error in granting injunction in favour of the first respondent. The point is answered accordingly.
18. Except the averment in Ex.A-8, there is nothing on record to show that revision petitioners agreed to give 50% share in the plaint schedule property and since the admission in clause 5 of Ex.Bl that the building complex on determination of the lease, vests in the revision petitioners/lessor, and the tenants inducted by the first respondent would attorn to the revision petitioners, and since the first respondent who admittedly was in arrears of rent was given ample time for vacating the premises even before the expiry of the lease, question of permitting the first respondent to deposit only 50% of rents does not arise, as revision petitioners are entitled to the entire property, and the rents receivable thereon and so the petition filed by the first respondent seeking a direction to deposit half of the rents is not maintainable and the petition field by the revision petitioners seeking a direction to the tenants to deposit the rents has to be ordered. The point is answered accordingly.
19. In the result, TRCMA No. 3421 of 2004 is allowed and I.A. No. 346 of 2002 in OS. No. 185 of 2002 is dismissed, CRP No. 4447 of 2002 is allowed and I.A. No. 547 of 2002 in O.S. No. 185 of 2002 is dismissed, and CRP No. 633 of 2004 is allowed and consequently I.A. No. 929 of 2002 in O.S. No. 49 of 2002 is allowed. Respondents are directed to deposit the rents payable by them every month from the date of petition into Court till the disposal of the suit. Time for deposit of arrears is granted till the end of August 2007. The trial Court shall dispose of the suits filed by the revision petitioners and the first respondent as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this order, uninfluenced by the observations made herein. Revision petitioners are entitled to costs throughout.