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2001 DIGILAW 985 (AP)

Katuri Nageswaramma v. Gottumukkala Venkateswara Raju

2001-09-06

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THE civil revision petition is filed by the revision petitioner aggrieved by the order made by the Rent Controller at vijayawada dated 22-12-1997 in E. A. No. 12/ 96 in E. P. No. 11/96 in R. C. C. No. 25/92. The 1st respondent is the decree-holder and the 2nd respondent is the judgment-debtor in the E. P. ( 2 ) THE facts in brief are that the revision petitioner filed the petition under rule 23 (7) of A. P. Buildings (Lease, Rent and Eviction) Control Rules 1961, hereinafter called "rules" in short, read with Order 21, rule 58 CPC. The case of the revision petitioner is that she had occupied the schedule property about 30 years back and had perfected her title by adverse possession and she has been in peaceful possession and enjoyment of the property by paying taxes and she got electricity service connection also and the entire schedule property bears three door numbers and the 1st respondent obtained a decree against the 2nd respondent and in execution of the same, had dispossessed the petitioner without notice and the revision petitioner had narrated several details, including certain criminal proceedings. The 1st and the 2nd respondents also had filed counters. The 1st respondent had denied all the allegations and had stated that the petitioner is only a sub-lessee under the original judgment debtor - 2nd respondent, and therefore she is bound by the same and the premises was delivered as per the orders of the Court lawfully and there is no fraud or collusion and the 2nd respondent also filed a counter stating that the petitioner is a sub-lessee and she had stopped payment of rents even to the 2nd respondent, thereby he was unable to pay rents to the 1st respondent and hence he became a defaulter. The 2nd respondent had failed to appear after cross-examination of the petitioner and had not even argued the matter. The evidence of PWs. 1 to 5 had been recorded on behalf of the petitioner and Exs. A-1 to A-93 were marked. The evidence of RW-1 was recorded and Exs. B-1 to B-9 were marked. Apart from it, Exs. Xl to X-19 also had been marked. The Court below after appreciating the oral and documentary evidence, had dismissed the petition and aggrieved by the same, the present revision was filed by the third partyobjector. A-1 to A-93 were marked. The evidence of RW-1 was recorded and Exs. B-1 to B-9 were marked. Apart from it, Exs. Xl to X-19 also had been marked. The Court below after appreciating the oral and documentary evidence, had dismissed the petition and aggrieved by the same, the present revision was filed by the third partyobjector. ( 3 ) MS. Padma, representing Mrs. Kamaleswari, the Counsel for revision petitioner had submitted that PW-1 is the husband of the revision petitioner and PWs. 2 to 5 support her case in toto and Exs. A-1 to a-93 also clearly go to show that she was in possession of the property in dispute and she was forcibly dispossessed. The learned counsel also had contended that the report of the authorised person also supports her case in toto and the learned Counsel had drawn my attention to the portions of the said report. The learned Counsel also had placed reliance on Koneru Aruna Kumari v. Shaik Ali, 1990 (1) ALT 387 , Gongunta krishna Murthy v. Bommisetti Narasimha rao and others, 1987 (2) ALT 198 and mirza Ali Safavi v. G. Bhaskar Rao, 1993 (2) ALT 35 (NRC ). ( 4 ) SRI V. S. R. Anjaneyulu, the learned counsel appearing for the respondent had contended that all the documents relied upon by the petitioner are of recent origin and at any rate the burden of substantiating the plea of adverse possession is on the petitioner and she had miserably failed in establishing the same. The learned Counsel also had submitted that the petitioner was only a sublessee under 2nd respondent and she cannot claim any independent right whatsoever. The learned Counsel further submitted that the rent control proceeding is only a summary proceeding and if at all the revision petitioner is aggrieved the remedy is to file a regular suit in a competent civil Court and this remedy at any rate is a misconceived one. The learned Counsel had taken me through certain portions of the impugned order and had submitted that the impugned order is a well considered one and does not warrant any interference. ( 5 ) HEARD both the Counsel and also perused the material available on record. The learned Counsel had taken me through certain portions of the impugned order and had submitted that the impugned order is a well considered one and does not warrant any interference. ( 5 ) HEARD both the Counsel and also perused the material available on record. ( 6 ) BEFORE adverting to certain of the contentions it may be relevant to note that the Court below was pleased to observe at paragraph-6 of the order as follows:- "exs. A-1 to A-3 are the non-agricultural assessment land tax receipts which bears no door number. Exs. A-4 to A-9 are the low cost drainage instalment payment receipts which bears a different door number. Only on Ex. A-9 the door number of 20-3/1-54 was mentioned and about it the old door number was also mentioned. The petitioner has not examined any person to show that both the door numbers belong to one premises. Most of the other documents are of electricity consumption charge receipts. Exs. A-60 to A-63 are the photographs which shows that this petitioner was dispossessed. Exs. A-64 to A-93 does not show the possession of the petitioner in the schedule premises for the last 30 years. Along with the petition this petitioner filed a memo containing list of documents in which she mentioned that she produced the documents from the year 1989. There is no document to show that this petitioner was in possession of the property for the last 30 years. As per the evidence of PW. 1 and RW. 1 it was admitted that the petitioner was in possession of the property prior to her eviction. In that regard she might have paid the electricity consumption charges and that does not show that the petitioner perfected her title by adverse possession. The 2nd respondent filed counter alleging that the petitioner has not filed any document to show that she was in possession of the schedule premises for the last 30 years to the knowledge of the 1st respondent. In fact, the Court below in paragraphs 8 to 14 of the order had discussed all the factual aspects in detail and on appreciation of evidence came to the conclusion that the objection of the petitioner is not sustainable and had ultimately dismissed the petition. In fact, the Court below in paragraphs 8 to 14 of the order had discussed all the factual aspects in detail and on appreciation of evidence came to the conclusion that the objection of the petitioner is not sustainable and had ultimately dismissed the petition. It is pertinent to note that the documents relied upon by the petitioner at the best commence only from the year 1989 and many of the documents appear to be subsequent to the commencement of the rent control proceedings. It is also not in dispute that the petitioner is not placing reliance on any title deed as such and her claim is one of adverse possession. It is needless to say when a person claims title to the property on the strength of continuous, long uninterrupted possession, it is for such a party to establish the plea of adverse possession. In Law of Adverse Possession, 2nd Edition by me, at page 25, it was expressed:"what is adverse possession. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person, in denial of the owner s right excluded him from the enjoyment of his property". The plea of the petitioner is that she has been in possession of the property for more than 30 years and she could not substantiate the same. Apart from it though reliance was placed on the report of the authorised person, the said authorised person was not examined and the report also was not marked. Since it is a report by authorised person, just like the report of a commissioner, it can be taken that the report forms part and parcel of the record. The learned Counsel had pointed out paragraphs 3, 4, 5 and also 8 of the report of the authorised person - Advocate and had contended that the possession of the petitioner is clearly established and without issuing any notice and without following any procedure she was forcibly dispossessed and hence she is entitled for restoration of possession. It is no doubt true that the report of the authorised person in a rent control proceeding is just akin to the report of the Commissioner in a civil suit and inasmuch as it forms part and parcel of the record, it can be looked into. It is no doubt true that the report of the authorised person in a rent control proceeding is just akin to the report of the Commissioner in a civil suit and inasmuch as it forms part and parcel of the record, it can be looked into. But however, 1 may observe that it is always safe even to mark such a report and if necessary to examine the authorised person who files such report into the Court. However, I had gone through the report of the authorised person also and the best it shows that the petitioner had been in possession of the property at a particular point of time and nothing more. The X-series documents i. e. , exs. X-1 to X-19 also do not throw much light on the aspect of title. A clear finding was recorded that the revision petitioner was only a sub-lessee under the 2nd respondent and I am not inclined to disturb this finding of fact recorded by the Court of first instance. In the decision referred supra, it was held where an ex parte eviction order was obtained against a fictitious person not impleading the actual tenant as a party and when such third party filed an application for restoration of the possession on the ground that he is the tenant, such petition of the actual tenant for restoration of possession can be allowed. In the decision referred supra, where an ex parte order of eviction was obtained by landlord by playing fraud and E. P. was filed for delivery of possession and the warrant could not be executed due to third parties being in possession of the property and the execution petition was dismissed by the Rent Controller on the basis of the Commissioner s Report, it was held to be sustainable. However, the decisions referred to supra are distinguishable on facts and hence the ratio in the said decisions may not be applicable in the present case. A rent control proceeding is only a summary proceeding and the enquiry contemplated both under the Act and the rules is summary in nature and hence it is always desirable to establish the question of title, especially, possessory title, on the plea of adverse possession in a competent civil court instead of invoking the summary jurisdiction of the Rent Controller. A rent control proceeding is only a summary proceeding and the enquiry contemplated both under the Act and the rules is summary in nature and hence it is always desirable to establish the question of title, especially, possessory title, on the plea of adverse possession in a competent civil court instead of invoking the summary jurisdiction of the Rent Controller. The learned Rent Controller, Vijayawada at paragraph-10 of the order was pleased to observe as follows:"the petitioner stated that her title in the schedule premises was perfected by adverse possession and that she is enjoying the schedule premises for the last 30 years without any interference from anybody. When such is the case the petitioner has to approach the civil Court for declaration that she is the owner of the schedule premises. The Rent Control Court has no jurisdiction to decide the rights of parties, but can decide incidentally when the tenant disputes the title of the landlord during the eviction proceedings. A third party raising question of title cannot seek to be impleaded. In this petition the petitioner is claiming title to the schedule premises and she was already dispossessed therefore she has to approach the civil Court to agitate her right and title in the schedule premises and to get restoration of property. This petitioner has not obstructed the execution proceedings before approaching this Court". In the facts and circumstances of the case, i am of the considered opinion that the learned Rent Controller had arrived at the correct conclusion relating to the nature of remedy available to the petitioner. In the light of the peculiar facts and circumstances and also in the light of the above discussion, 1 am of the opinion that the remedy by way of a claim in a matter of this nature in a summary proceeding is misconceived remedy and hence the revision petitioner is at liberty to workout her remedy in a competent civil court by instituting a regular suit seeking appropriate reliefs, if she is so advised. ( 7 ) FOR the foregoing discussion, the civil revision petition is devoid of merits and accordingly it is dismissed. There shall be no order as to costs.