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2001 DIGILAW 274 (AP)

Shaik Abdul Shukur v. Tumuluri Ramavadhani

2001-03-16

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) THE petitioner seeks to assail the Order dated 18-02-2000 passed by the learned principal Senior Civil Judge, Ongole, in r. C. A. NO. 1 of 1999. ( 2 ) THE revision petitioner is the respondent in the said Appeal. The respondent herein is the petitioner in r. C. C. No. 25 of 1995 filed before the principal Junior Civil Judge-cum-Rent controller, Ongole, seeking eviction of the respondent therein the revision petitioner. It is better to refer the parties as they were originally arrayed so as to avoid confusion. ( 3 ) THE petitioner filed the petition in r. C. C. 25 of 1995 seeking eviction of the respondent on the ground that the respondent committed wilful default in paying the rents from October, 1994 to march, 1995 (inclusive of both the months ). That eviction petition was resisted by the respondent on the ground that he encroached the petition schedule site about 33 years back along with some other sites and put up a thatched shed thereon; and that he had been living in the said shed by paying municipal taxes and thereby perfected his title over the property in dispute by means of adverse possession; and that there has been no landlord and tenant relationship between the parties inter se. ( 4 ) IN view of the respective pleadings, the learned Rent Controller framed two points for his determination, namely, (1) Whether the denial of title by the respondent is bona fide? and (2) Whether there is landlord and tenant relationship between the petitioner and the respondent? after conducting enquiry, the learned Rent controller answered both the points in the negative and consequently dismissed the r. C. C. No. 25 of 1995 by his order dated 03-11-1998. ( 5 ) HAVING been aggrieved by the said order dated 03-11-1998 in R. C. C. No. 25 of 1995, the petitioner carried the matter in appeal, as aforesaid, in R. C. A. No. 1 of 1999. ( 6 ) THE learned Principal Senior Civil judge, Ongole, basing on the material on record arid after having heard on either side, framed only one point for determination to the following effect:"whether the Judgment and decree passed by the lower Court in r. C. C. NO. ( 6 ) THE learned Principal Senior Civil judge, Ongole, basing on the material on record arid after having heard on either side, framed only one point for determination to the following effect:"whether the Judgment and decree passed by the lower Court in r. C. C. NO. 25 of 1995 dated 03-11-1998 suffers from any infirmity requiring interference at this appellate stage?"the learned appellate Judge proceeded to decide the appeal and ultimately after having come to the conclusion that the respondent failed to establish his hostile title over the property in dispute and, therefore, the very denial of title by him concerning the property is not at all bona fide and on the other hand reflected mala fides on his part and, therefore, he allowed the appeal by his Order dated 18-02 2000 by upsetting the findings given by the learned rent Controller. ( 7 ) ASSAILING the said order, as aforesaid, the respondent now seeks to file the present civil Revision Petition. ( 8 ) AS can be seen from the respective pleadings, it is the specific plea of the respondent in his counter that he encroached the property in dispute and having been there for more than 33 years he perfected his right over the same by means of adverse possession and thus he claims title over the property. At the time of enquiry in Rent Control case, he sought to adduce evidence to show that a part of the property in dispute was purchased by his wife under a Registered Sale Deed and for the remaining property he perfected his right by means of adverse possession. The registered Sale Deed said to have been obtained by his wife was in fact filed before the learned Rent Controller. Such an evidence on the side of the respondent cannot be considered inasmuch as it is not only a case where there is no such plea taken in the counter, nay a case where the respondent seeks to adduce evidence, which is inconsistent with his plea. Therefore, the volume of evidence sought to be adduced by the respondent to show that a part of the disputed property was purchased by his wife cannot be considered for the said reason. There remains the plea of adverse possession. Therefore, the volume of evidence sought to be adduced by the respondent to show that a part of the disputed property was purchased by his wife cannot be considered for the said reason. There remains the plea of adverse possession. ( 9 ) THE learned Rent Controller after having appreciated the evidence adduced on either side was of the view that the denial of the title by the respondent is bona fide. However, the learned Senior Civil judge after having re-appreciated the evidence on the point had come to the conclusion that the respondent failed to establish his plea of adverse possession, which is hostile to the case of the petitioner. Consequently h e came to the clear conclusion that the denial of title by the respondent was not bona fide. Having found so, he proceeded to upset the other finding given by the learned Rent Controller and allowed the appeal directing the respondent to vacate the premises. ( 10 ) FROM the pleadings, two important questions fall for my determination, namely, (1) Whether the denial of title by the respondent to the petitioner is bona fide? and (2) Whether there is relationship of landlord and tenant between the parties inter se?on the former point, there is no difficulty in view of the clear-cut finding given by the appellate Court. But the appellate Court failed to advert to the latter point and straightaway proceeded to dispose of the appeal in view of the finding reached on the first point. The relationship of landlord and tenant is an outcome of an agreement between the parties inter se. That agreement may be either oral or in writing. Nonetheless there shall be such an agreement between the parties. Merely because it is found that the denial of title of the petitioner by the respondent is not bona fide, it will not automatically establish the requisite agreement between the parties inter se, which is a sine qua non for granting an application under Section 10 of the A. P. Buildings (Lease, Rent and Eviction) control Act, 1960. Oblivious of this legal position, the appellate Court had fallen into error by proceeding to dispose of the appeal without deciding that point. Therefore, the judgment /which is now sought to be assailed suffers from that legal infirmity and on that point alone it is liable to be set aside. Oblivious of this legal position, the appellate Court had fallen into error by proceeding to dispose of the appeal without deciding that point. Therefore, the judgment /which is now sought to be assailed suffers from that legal infirmity and on that point alone it is liable to be set aside. Since there is no such finding given by the appellate Court and in the wake of the findings given by the learned Rent controller, it is expedient to remit the matter back to the appellate Court to have a fresh look at the same after giving opportunity to both the parties. ( 11 ) IN the result, the Civil Revision petition is allowed and the impugned order dated 18-02-2000 passed by the learned senior Civil Judge, Ongole, in R. C. A. No. 1 of 1999 is hereby set aside by remitting back the matter to him for fresh look after giving opportunity to both the parties. The appellate Court is directed to dispose of the appeal as expeditiously as possible.