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2004 DIGILAW 182 (AP)

Panga Illayya v. Neethi Mahalakshmi

2004-02-16

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD Sri Balaji representing Sri Gudapati Venkateswara Rao, learned counsel representing the appellant, and Sri krishnaiah, learned counsel representing the respondent. ( 2 ) ON 1-2-2002, the second appeal was admitted by this court on the following substantial questions of law in ground nos. 9 (1)to (3): (1) Whether the lower appellate court can pass an order of eviction of the premises which described as thatched shed which comes under a. P. Building (Lease, Rent and eviction Control) Act, 1960 under section 2 (iii) by way of a regular suit? (2) Whether the civil court has jurisdiction under Section 9 of Code of Civil Procedure to entertain the suit, which was expressly barred by the A. P. Building (Lease, Rent and eviction Control) Act, 1960? (3) Whether ignoring the weight of evidence, proceedings on wrong or wrong premises of law or deriving such conclusions from the established facts as betray a lack of reasons and or objectivity would render the findings of the appellate court not according to law calling for interference under Section 100 of the Code of Civil Procedure? ( 3 ) ONE Sri Panga Illayya, defendant in p. S. No. 159 of 1992 on the file of Additional Junior Civil Judge, Srikakulam, aggrieved by the reversing judgment and decree made in A. S. No. 83 of 1998 on the file of the District Court, Srikakulam, which was renumbered as A. S. No. 35 of 2001 on the file of the Principal Senior Civil Judge, srikakulam, had preferred the present second appeal. ( 4 ) THE aforesaid suit was instituted by neethi Mahalakshmi wherein the respondent-plaintiff prayed for removal of structures on the suit site and to deliver vacant possession of the site with future profits and also for costs. The court of first instance dismissed the suit without costs on 28-4-1998 and the Principal Senior Civil judge, Srikakulam, allowed A. S. No. 35 of 2001 on 30-11 -2001. Aggrieved by the same the present second appeal has been filed. The court of first instance dismissed the suit without costs on 28-4-1998 and the Principal Senior Civil judge, Srikakulam, allowed A. S. No. 35 of 2001 on 30-11 -2001. Aggrieved by the same the present second appeal has been filed. ( 5 ) THOUGH three questions referred to supra were shown as substantial questions of law, virtually the only question to be decided in the present second appeal is as hereunder: (1) Whether the Civil Court has jurisdiction to try the suit relating to the plaint schedule property in view of the provisions of the A. P. Buildings (Lease, Rent and eviction) Control Act, 1960? both the counsel addressed elaborate arguments. ( 6 ) THE stand taken by the appellant is that the appellate court had totally erred in reversing the well considered judgment of the trial court especially in the light of the oral and documentary evidence. The learned counsel for the appellant also submitted that when originally the tenancy commenced in the year 1966, it is on the part of the respondent-plaintiff to prove the same and in the court of first instance the said document was not filed. But I. A. No. 15 of 2001 was filed before the appellate court and the appellate court, mainly on the strength of the recitals of ex. A-1 and also of Ex. A-5, had arrived at a conclusion that what was let out in the year 1966 by the landlady to the tenant was only a vacant site and not a super structure existing thereon. The learned counsel also would contend that this approach cannot be sustained especially in the light of Ex. B-1 wherein the structure had also been mentioned. Hence, it should be taken that what was let out was only a hut or a super structure along with the site and hence definitely Civil Court has no jurisdiction. The learned counsel also had taken this court through the evidence of P. Ws. 1 and 2 and also D. Ws. 1 and 2 in this regard. Hence, it should be taken that what was let out was only a hut or a super structure along with the site and hence definitely Civil Court has no jurisdiction. The learned counsel also had taken this court through the evidence of P. Ws. 1 and 2 and also D. Ws. 1 and 2 in this regard. ( 7 ) PER contra Sri Krishnaiah, the learned counsel representing the respondent- plaintiff, had pointed out that P. W. 1 had clearly deposed on this aspect that the tenancy commenced in the year 1966 and no doubt the counsel in all fairness stated that this document produced at the appellate stage could have been produced even before the court of first instance. But, however, the learned counsel pointed out that the appellate court no doubt had referred to the additional evidence. But the material available on record especially in the light of the admissions made in the Caveat petition, the appellate court had arrived at a conclusion that in the year 1966 what was let out was only a vacant site and not a site with building existing thereon within the meaning of the A. P. Buildings (Lease, Rent and eviction Control) Act, 1960, (herein after referred to as "the Act" for the purpose of convenience ). The learned counsel further submitted that it is not a case of inherent lack of jurisdiction and under certain specified circumstances definitely Civil Court can entertain a suit. But no doubt in the light of certain conditions specified by the provisions of the Act and in the light of the fact that the tenancy was commenced in the year 1966, the mere fact that in Ex. B-1, which is a subsequent document of the year 1969, the structure was also mentioned, the nature of tenancy would not be altered. The mere fact that for the purpose of running a coffee hotel, some constructions were made by the tenant, the appellant herein, would not change the character of the property and what was let out initially by the landlady alone should be taken into consideration for the purpose of deciding the question of jurisdiction. The learned counsel also submitted that in the light of the stand taken by the appellant-tenant in the Caveat petition lodged before the Principal District munsif-cum-Rent Controller, Srikakulam, now such party cannot be permitted to approbate and reprobate. The learned counsel also submitted that in the light of the stand taken by the appellant-tenant in the Caveat petition lodged before the Principal District munsif-cum-Rent Controller, Srikakulam, now such party cannot be permitted to approbate and reprobate. Inasmuch as, if the land lady approaches the Rent Controller again, a ground would be raised stating that what was let out in the year 1966 was only a vacant site and not a site with building and hence she may have to approach the Civil court riici ihe relief before the Rent controller would not lie. The learned counsel also pointed out that even otherwise what had been let out is predominantly a question of fact and the appellate court had given a specific finding in this regard and hence the question of lack of jurisdiction of a Civil Court to entertain the eviction action need not be seriously considered as a substantial question of law by this court. ( 8 ) HEARD both the counsel at length and perused the findings recorded by the court of first instance and the appellate court as well. ( 9 ) THE plaint schedule property is a vacant site of 40 x 30 feet. P. W. 1 specifically deposed that what had been leased out to the appellant-tenant was only a vacant site and the appellant-defendant had constructed thatched shed for the purpose of running a coffee hotel. P. W. 2 was also examined in support of what had been deposed by P. W. 1 to the effect that vacant site alone was given on lease to the appellant-defendant in the year 1966 for running a coffee hotel. The stand taken by the appellant-defendant as d. W. 1 is that what was let out to him was a building and not a vacant site and hence, civil Court has no jurisdiction and Rent controller alone has jurisdiction and Rent controller alone has jurisdiction to grant such relief. Ex. A-1 is the rent receipt, dated 1-6-1982 and this document shows that it was only a vacant site which had been leased out. Ex. A-1 as such was not denied by the appellant-defendant, but an explanation was given by him that he is an illiterate and on belief he had signed on ex. A-1. PW. 1 in his cross-examination specifically deposed that the tenancy had commenced in the year 1966 on a monthly rent of Rs. Ex. A-1 as such was not denied by the appellant-defendant, but an explanation was given by him that he is an illiterate and on belief he had signed on ex. A-1. PW. 1 in his cross-examination specifically deposed that the tenancy had commenced in the year 1966 on a monthly rent of Rs. 85/- initially for a period of 3 years and subsequent to 3 years again a fresh lease deed was executed dated 1-1-1969 for a period of 3 years on a monthly rent of rs. 240/ -. Ex. B-1 is rent receipt, dated 1-1-1969. It is no doubt true that as shown in ex. B-1 what was let out was not a vacant site but a thatched house for running a coffee hotel. Here, in fact, the crucial aspect would arise to decide what actually had been let out to the tenant by the landlady. It is no doubt unfortunate that respondent-landlady had not produced the document of the year 1966 in the court of first instance and an application was moved at the appellate stage to establish the same. Apart from this aspect of the matter, the other oral and documentary evidence also had been considered by the court of first instance and also by the appellate court. ( 10 ) EX. A-5 is the Caveat petition lodged by the appellant before the Rent Controller- cum-Principal District Munsif, Srikakulam. Elaborate submissions were made by the learned counsel for the respondent and specific portions of the Caveat petition have been pointed out to show that clear admissions were made that what had been let out to the tenant was only a vacant site but the mere fact that subsequent thereof for the purpose of running a hotel, he raised certain super structures would not alter the nature of the property as far as the question of tenancy is concerned. ( 11 ) SECTION 2 (iii) of the Act defines building as hereunder: "it means any lease or rent or part of a house or hut and let or to be let separately for residential purposes and it includes: (1) gardens, grounds, garages and out houses if any, appurtenant to such house, tent or part of such house or hut and let or to be let along with such house or hut or part of such house or tent. (2) any furniture supplied or any fittings affixed by the landlord for use in such house, tent or part of a house or tent but does not include a room in a hotel or boarding house. " ( 12 ) SECTION 10 of the Act deals with i Eviction of tenants. Sub-section (1) specifies as hereunder:"a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13 of the Act. " ( 13 ) SECTION 12 of the Act deals with recovery of possession by landlord for repairs, alterations or additions or for reconstruction. ( 14 ) SECTION 13 of the Act deals with recovery of possession by landlord for repairs, alterations or additions or for reconstruction of buildings in respect of which Government shall be deemed to be the tenant. " ( 15 ) IN N. Ramachandra Rao and others v. Vasanta Rao\ it was held as hereunder:"when payment of rentals is not in dispute the appropriate forum before which the relief for possession could be agitated for is under the Act on satisfying any of the grounds mentioned under Section 10 of the Act. On mere declaration of title the appellants cannot automatically get a decree for possession. The decree for possession is independent of the declaration of the title. When there is an express exclusion of the jurisdiction of civil Couit by operation of Section 10 of the Act, the provision cannot be circumvented by a mere camouflage of relief of declaration of title. The appellate court has rightly held that civil Court has no jurisdiction to grant decree for possession. " ( 16 ) IN B. Narsing Rao v. Parvathi Baf, it was held as hereunder:"the jurisdiction of a Civil Court with respect to the matter that came to be dealt in this Revision Petition is ousted expressly and unless the condition precedent contemplated under the proviso appended to Section 10 (1) of the Act is found fulfilled, the plaintiff- respondent would not be entitled to seek eviction of the tenant-petitioner in a Civil Court. Under the proviso appended to section 10 (1), where the tenant denied the title of the landlord the controller shall decide whether the denial is bona fide. Under the proviso appended to section 10 (1), where the tenant denied the title of the landlord the controller shall decide whether the denial is bona fide. And if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil court and the Court is entitled to pass a decree for eviction on any of the grounds mentioned in the said section. In the case of a person who answers the description of a tenant, the relief for eviction of such a person in a Civil court can be sought for only after the rent Controller records a finding in a proceeding initiated under Sec. 10 (1) of the Act where the tenant denies the title, that, the denial was bona fide. Only then, not till then, the question of landlord being entitled to sue for eviction of the tenant in a Civil Court arises. " ( 17 ) IN Saibaba and others v. Mohd. Kareem Khan3, it was held as hereunder:" There is no dispute that the premises in question is a old one and the petitioner is a longstanding tenant and the rent that was being paid by the petitioner was Rs. 700/- per month. The suit mulgi is covered by the Rent control Act. Under Section 10 of the rent Control Act, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the rent Control Act. This Court in n. Ramachandra Rao and others v. Vasanta Rao ( 1985 (2) APLJ 136 ) held that Section 10 of the Rent Control Act postulates that no tenant shall be ejected from a premises, except in accordance with the provisions of the act and therefore, for ejectment of a tenant in possession of a premises, the exclusive jurisdiction has been conferred in the Rent Controller, thereby, the jurisdiction of the civil court is expressly ousted. It is also held that even in a suit for declaration of title, the decree holder cannot automatically get a decree for possession. In the instant case, the decree obtained by the 1st respondent is only for the specific performance of the agreement and to get the sale deed executed in his favour. It is not even for declaration of title and for possession. In the instant case, the decree obtained by the 1st respondent is only for the specific performance of the agreement and to get the sale deed executed in his favour. It is not even for declaration of title and for possession. Under the guise of the so-called sale deed, the 1 respondent cannot evict the petitioner herein contrary to the specific provision of Section 10 of the Rent Control Act. The Civil Court s jurisdiction is ousted by operation of Section 10 of the Act. Insofar as the statutory tenants protected by the Rent Control Act is concerned, the Civil Court has no jurisdiction to evict them. " ( 18 ) IN Satyanarayana v. Boddu veeraswamy and others4, it was held that a suit filed for possession of house on the allegation that the defendants were trespassers can be maintained in the Civil court. ( 19 ) IN The Mahaboobia Educational society v. Sudhir Pujari and others5 while dealing with the definition of the Building, this court held as hereunder:"thus, under Section 2 (iii) (a) garden, grounds, garages and out-houses appurtenant to a house let or to be let out along with such house or hut or part of such house or hut have been included in the definition of the building. Thus, it is apparent that even an open land shall be deemed to be a building within the meaning of Section 2 (iii) of the Act if it has been let out along with a building or a hut as appurtenant to such hou. se or hut. " ( 20 ) IN Suryakumar Govindjee v, krishnammal and others9 while dealing with the definition of the Building under the T. N. Buildings (Lease and Rent Control) Act, 1960, the Apex Court held as hereunder: there is no difficulty in determining the scope of the lease where a building and a piece of land are separately let out. But in the case of composite lease of land and building, a question may will arise whether the lease is one of land although there is a small building or hut on it (which does not really figure in the transaction) or one of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respective dimensions. If the transaction clearly brings out a dominant intention and purpose, there may be no difficulty in drawing a conclusion one way or the other. But where all that is intended is a joint lease of both the land and the building without there being any consideration sufficient to justify spelling out an intention to give primacy to the land or the building, the test of dominant intention or purpose may not be very helpful. Where what the parties had in mind was only the lease of land, although there were certain petty structures thereon which were not demolished or kept out of the lease but were also let out, the Rent Act is clearly inapplicable. It cannot be held that once there is a building on the land, however insignificant, and it is let out, the case will be governed by the Rent control Act. The fact in such cases is that the owner has a building and land and he lets them out together. He is not bothered about the purpose for which the lease is being taken by the other party. In such cases, it is very difficult to say that there is no lease of building at all unless there is some contra indication in the terms of the lease such i as that the lessee could demolish the structure. The court in this context should be guided by the consideration as to whether the parties intended that the building and land should go together or whether the lessor could have intended to let out the land without the building. The latter inference can perhaps be generally drawn in certain cases where only the lease of land dominated the thoughts of the parties but the mere fact that the building is small or that the land is vast or that the lessee had in mind a particular purpose cannot be conclusive. " ( 21 ) WHEN once this court is of the opinion that the Civil Court cannot entertain a suit of this nature, no doubt, the remedy of the landlady is elsewhere and other merits and demerits need not be touched in this suit in view of the same. But, here there is evidence of P. W. 1 and D. W. 1 oath against oath. But, here there is evidence of P. W. 1 and D. W. 1 oath against oath. Apart from this aspect, P. W. 2 and D. W. 2, the supporting witnesses were examined just to corroborate the statements made by both the landlady and the tenant. Apart from this oral evidence, there is documentary evidence also. Ex. A-1 is the document of the year 1982 showing that it is only a vacant site, which had been let out and Ex. B-1 is the document of the year 1969 showing that what had been let out in fact was a vacant site along with. thatched shed thereon. Apart from this aspect of the matter, on facts, it is clear that the tenancy commenced in the year 1966. The document which came into existence at the first instance would be the crucial document to cull out the intention of both lessee and lessor and to decide this aspect what had been let out whether only a vacant site or a vacant site along with a thatched hut thereon. This additional evidence was let in at the appellate stage. In view of the same, inasmuch as the said crucial document was brought to the notice of the appellate court and also the tenant was put on notice only at the appellate stage, I am of the considered opinion that this is a fit matter where an order of remand may have to be made to the appellate court to entertain the document of the year 1966 and decide this question on the strength of the said document, only for the limited purpose, the order of remand is being made by this court. ( 22 ) HENCE, the judgment and decree of the appellate court are hereby set aside and the matter is remanded to the appellate court to decide this question in the light of the document of the year 1966 produced at the appellate stage and the recitals made therein and decide the question of jurisdiction of the Civil Court in the light of the same within a period of one month from the date of receipt of a copy of this order. ( 23 ) THE parties are at liberty to adduce evidence in relation to the limited question referred to supra. ( 24 ) THE Second Appeal is accordingly allowed to the extent indicated above. No order as to costs.