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Andhra High Court · body

2007 DIGILAW 980 (AP)

Mohd. Shafi v. Hafeez Mohammed (died) by LRs.

2007-10-04

D.APPA RAO

body2007
ORDER ;- This is a revision preferred by the tenant against the order in appeal R.A. No.278 of 2002 dated 18.10.2006 confirming the orders of eviction in RC No.174 of 1997, on the file of learned Principal Rent Controller, Hyderabad. 2. The case of the landlord in brief is that the tenant - the revision petitioner herein, executed a rental deed in his favour on 5.1.1990 agreeing to pay a monthly rent of Rs.150-00 by 5th of every English calendar month, for Mulgi bearing Municipal No.20-7-331 situated at Fateh Darwaza, Hyderabad. He did not pay rents for the months from January, 1997 to March, 1997 amounting to Rs.450-00 and committed default intentionally and therefore he was liable for eviction. He also committed default in payment of rents from December 2000 to the end of December, 2001. He also pleaded that the tenant sublet the premises to the second respondent. Therefore, he prayed that the tenant be evicted. 3. The tenant resisted the petition alleging that he did not execute the rental deed dated 5.1.1990 and that it was a forged document. No date was stipulated for payment of rent. The landlord himself used to come to the demised premises every month as per his convenience and collect rents. For the last time, he came on 1.1.1997 and collected rent for the month of December, 1996 and passed a receipt. With an oblique motive, he did not come to the demised premises for the months of February and March, 1997 for collecting rents. On that his brother - Mohd. Taher went to the house of the landlord on 10.3.1997 for tendering the rent, but he avoided to receive the same. Landlord told to him that he would come later and collect the rents on the plea that receipt book was exhausted. On that he tendered rents through money orders but the same were returned. He paid Rs.750-00 as accumulated rent to the landlord in Court on the first date of hearing Le., 17.6.1997 and the same was received by his learned Counsel. He denied the allegation that he sublet the premises. Earlier, the landlord filed an eviction petition - R.C. No.1049 of 1986 (old Rc.No.371 of 1984) on the file of learned III-Additional Rent Controller against his father. He denied the allegation that he sublet the premises. Earlier, the landlord filed an eviction petition - R.C. No.1049 of 1986 (old Rc.No.371 of 1984) on the file of learned III-Additional Rent Controller against his father. When it was dismissed an appeal RA No.28 of 1998 was preferred, which was also dismissed as withdrawn on 5.3.1990 and therefore he prayed for dismissal of the petition with costs. 4. The landlord in proof of his case examined P.W s.1 and 2 and himself as P.W.I and filed Exs.P.l to P.6. P.W.2 is an adjacent shop owner. 5. Refuting their evidence, the revision petitioner was examined himself as R.W.I and filed Exs.R.1 to R.49. 6. The trial Court after considering the evidence placed on record opined that the tenant failed to pay the rents for the months from January to March, 1997, and committed wilful default. The contention that he has sent rents through money orders was disbelieved. 7. At this juncture, it may be stated that during the pendency of the trial, the tenant has taken a plea that the real owner of the property in question is Wakf Board. Since the properties belong to Wakf, the dispute is beyond the purview of the provisions of Andhra Pradesh Buildings 8. After considering the earlier litigation in OS No.168 of 2000 wherein it was held that the property did not belong to the Wakf, the Rent Control Tribunal held that the landlord was entitled for an order of eviction. The trial Court disbelieved the plea of sub-lease and ultimately it allowed the petition ordering eviction of the tenant granting two months time. 9. Aggrieved by the said decision, the tenant preferred appeal RA No.278 of 2002. The appellate Court after re-appreciating the evidence let in by the tenant, opined that the tenant had committed default in payment of rent for the months of January to March, 1997. It also considered the plea as to the ownership of the property and opined that the property in question does not belong to the Wakf. It was negative in the earlier suit. At any rate, he cannot under the guise, deny the title of the landlord. Such denial was mala fide and therefore it upheld the order of eviction passed by the learned Rent Controller. 10. It was negative in the earlier suit. At any rate, he cannot under the guise, deny the title of the landlord. Such denial was mala fide and therefore it upheld the order of eviction passed by the learned Rent Controller. 10. Aggrieved by the concurrent findings, the tenant preferred this revision contending that both the Courts below did not appreciate the fact that there was no jural relationship of landlord and tenant between them. It is a Wakf property. Both the Courts below had no jurisdiction. It was exempted from the purview of the Act. 11. During hearing of the revision, the tenant has filed CRP MP No.4313 of 2007 to receive the A.P. Gazette notification dated 14.11.2002 as additional evidence and CRP MP No.4922 of 2007 to permit him to amend the counter filed by him for taking the plea that the property is Wakf property and the Court had no jurisdiction to entertain the eviction petition. 12. Before considering the merits of the applications filed by him, it may be stated herein that the revision petitioner originally admitted his tenancy pertaining to the petition schedule - Mulgi - on payment of rent of Rs.150-00 per month. When the landlord has come up with contention that the tenant had failed to pay rent for the months from January to March, 1997, the tenant has taken plea that the landlord did not come and receive the amount, on that, he sent it through money orders as per Exs.R.11 to R.13. At the time when he was examined, he admitted that he did not send those money orders. He added that his brother had sent them. Both the Courts below had opined that Exs.R.11 to R.13 money order coupons - do not indicate that they relate to the rents paid by the tenant. The appellate Court has accepted the evidence of R. W.1 in this regard which reads as follows : "He was not present in the city having gone to Bombay and that his brother Taher paid for the month of January 1997 and he returned from Bombay three or four months after January 1997 and his brother was doing business in his absence. His brother is only aware of payment of rent for the period from January 1997 to March 1997 as his brother sent the same by money order for the said period." 13. His brother is only aware of payment of rent for the period from January 1997 to March 1997 as his brother sent the same by money order for the said period." 13. From these admissions, the trial Court as well as the appellate Court held that R.W.1 was not aware of tendering of rent by his brother, as he was away to Bombay during the period of default. For the reasons best known to him, his brother was not examined. He was a material witness who could have thrown light as to the payment of these amounts towards rent by him through money orders. The Courts below have elaborately considered the documents that were marked as Exs.R.11 to R.13 - money order coupons - and found that had the money order receipts were produced, it could have been known whether the money order was remitted in favour of the landlord towards rents. It was held that in the absence of production of money order receipts, presumption under Section 27 of the General Clauses Act could not be drawn that the money orders were sent to the correct address of the landlord and that it was towards monthly rents. Exs.R.11 to R.13 would only show the name and address of the sender and space for communication with endorsement of postal authorities. The landlord on oath denied the amount under money orders tendered to him. The tenant could not give any reason as to why he could not pay the rent in time. 14. It is settled law that concurrent finding based on oral and documentary evidence that the tenant has wilfully committed default in payment of rent and that the landlord is entitled to seek eviction, do not suffer from any illegality, irregularity or impropriety calling for interference in the revision. Mere possibility of a different view is no ground to interfere in exercise of revisional powers by High Court. What is required to be seen by the High Court is whether the order is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or whether the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. 15. 15. The important contention that was raised by the learned Counsel for the revision petitioner is that the property is a wakf property. Gazette Notification under Section 5 of the Wakf Act was issued declaring the property as 'Wakf property'. The Government in exercise of the powers conferred under Section 26 of the Act issued notification in G.O. Ms. No.380 dated 6.5.1970 exempting the properties of Wakf from the operation of the provisions of the Act. Since the property is a Wakf property, the Courts below ought not to have taken cognizance of the matter nor could have tried it and consequently order eviction. 16. Evidently, the tenant did not take this plea in his counter. Even during the hearing of the appeal, he did not get the grounds of appeal amended in order to take this plea. For the first time in this revision, he seeks permission to take this plea in this revision. Along with it, he filed CRP MP No.4313 of 2007 to receive notification issued by the Wakf declaring the suit item as one of the wakf properties. Since this question goes to the root of the matter, both the petitions - CRP MP No.4313 of 2007 and CRP MP No.4922 of 2007 are allowed for the limited purpose of considering the jurisdictional aspect. 17. Admittedly, the landlord had purchased the tenanted premises under a registered sale deed dated 5.6.1972 (Ex.P4) from one Mohd. Ismail. The property is the subject-matter in O.S. No.155 of 1958 on the file of learned IV -Additional Judge, City Civil Court, Hyderabad. The vendor under Ex.P.4 was a party to the proceedings. The suit was filed for partition in respect of the suit property. The defendants therein raised the contention that the property was unpartiable, being Wakf property. After elaborate consideration of documentary and oral evidence, it was held that the property was not a Wakf property. For benefit, I extract some of the excerpts touching upon this question from the said judgment. " ..None of the provisions of the Wakf Act which are depended upon by the defendants are helpful to them for successfully contending that the suit property is the Wakf property." "....In my opinion Exs. X.l to X4 afford conclusive piece of evidence for holding that the suit properties are the matruka properties left by Faizuddin and that they are not the endowed properties. X.l to X4 afford conclusive piece of evidence for holding that the suit properties are the matruka properties left by Faizuddin and that they are not the endowed properties. Having regard to all the above circumstances I find that the suit properties are the matruka properties of Faizuddin which are liable for partition between the plaintiffs and defendants and they are not the endowed properties." 18. The learned Counsel for the tenant contended that in view of the notification issued by the Government, it must be held that it is the Wakf property. This contention was also raised earlier in the suit, but the same was repelled. Pursuant to the decree, the vendor's vendor got tenanted premises to his share, which he sold to the vendor who in turn to the landlord under EX.P4. The judgment in as No.155 of 1958 is marked as EX.P3. Ex-facie when the civil Court had opined that the property is not a Wakf property, the tenant could not have taken advantage of subsequent filing of the suit in O.S. No.29 of 2003 by the Wakf Board and contend that the landlord has no title to the property Even assuming without admitting that the property belongs to Wakf, I am afraid at any rate the tenant cannot contend that the petitioner is not the landlord, as he was paying rents to him all through. The tenant caimot turn round and say that the petitioner was not having title to the property and that the superior title is with the Wakf. ' 19. The learned Counsel for the tenant contended that the earlier view taken in the suit cannot be imported, the principles of res judicata or estoppel cannot be made applicable, as erroneous decision on jurisdiction cannot be regarded as good law. The Court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. No doubt, the Supreme Court in I. Johnson (Smt.) v. MA. Susai, 1991 (1) APU 45 (sq, held that there can be no estoppel on a pure question of law and the question of jurisdiction is a pure question of law. The learned Counsel for the tenant contended that the rule that tenant is not permitted to deny title of landlord does not apply when tenant is under threat of eviction by person claiming paramount title. The learned Counsel for the tenant contended that the rule that tenant is not permitted to deny title of landlord does not apply when tenant is under threat of eviction by person claiming paramount title. In support of his contention, he relied on a decision reported in D. Satyanarayana v. P. Jagadish, AIR 1987 SC 2192 . That was a case where a wooden cabin or kiosk located at one comer of a building belonging to one Krishnamurthy was let out on a rent of Rs.6 per day which later was increased to Rs.I0/- by the respondent P. Jagadish, son of the original tenant P.R.N. Upadhyaya on March 9, 1977. Admittedly, the main premises i.e., the building was demised by Krishnamurthy to the said P.R.N. Upadhyaya in the year 1972 and in course of time he had sublet different portions of the premises to different persons. By a notice dated November 8, 1980 the head lessor Krishnamurthy served a notice of eviction on the appellant and other subtenants alleging that there was unlawful subletting by the lessee and that he had decided to tern1inate the tenancy of the tenant Upadhyaya with the expiry of that month Le., by the end of December, 1980. Thereupon the appellant on December 4, 1980 was constrained to attorn in favour of the original lessor Krishnamurthy agreeing to pay him a rent of Rs.300/- per month. Evidently, the appellant had paid rent to the respondent upto March 31, 1980. After becoming a direct tenant under the head lessor Krishna Murthy the appellant stopped paying rent to the respondent w.e.f April 1, 1980. On March 13, 1981 the respondent asserting to be the lessor commenced proceedings for eviction of the appellant from the demised premises under Sections 10(2)(i) and (vi) and 10(3)(b)(iii) of the Act i.e., on the ground that the appellant was in wilful default in payment of rent, that there was denial of title on his part and for his bona fide requirement. 20. The Supreme Court opined that the appellant has since that date has been paying rent to his lessor Krishnamurthy and is not in arrears of rent and therefore cannot be evicted. Their Lordships relying decision in Mangat Ram v. Sardar Meharban Singh, (1987) I Scale 964 = AIR 1987 SC 1656 at P.1660, observed that "........ 20. The Supreme Court opined that the appellant has since that date has been paying rent to his lessor Krishnamurthy and is not in arrears of rent and therefore cannot be evicted. Their Lordships relying decision in Mangat Ram v. Sardar Meharban Singh, (1987) I Scale 964 = AIR 1987 SC 1656 at P.1660, observed that "........ The estoppel contemplated by Section 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end." 21. Coming to the facts, it is not the case of the tenant that he had paid rent to the landlord. An order dated 11.4.2004 was passed directing him to deposit the rent, but he did not deposit the rent. On the other hand, for the first time he contended that he was paying rent to the Wakf. The landlord did not admit that the Wakf is the owner nor it has paramount title. 22. The learned Counsel for the respondent contended that the tenant having taken the premises on lease from him cannot turn round and deny his title alleging that the paramount title is in the Wakf. In support of his contention, he relied a decision of the Supreme Court in Mangappdn v. P. Padmavathy, 1999 (2) RCR 277. It is somewhat similar case the lessee inducted the tenant when tenant committed default in payment of rent, eviction petition was filed. That was a case that arose under Section 10(2)(a) and 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. They are similar to the provisions of the Act. The Supreme Court opined that since the lessee of the property inducted the tenant, the lessee would be the landlord qua tenant inducted by him. The plea of the tenant was that he was paying rent to real owner. He denied the title of the lessor. Their Lordships held that such a denial of title is mala fide. Section 116 of the Evidence Act puts an embargo on a tenant of an immovable property, during the continuance of the tenancy to deny the title of his landlord at the beginning of his tenancy. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord's title. Section 116 of the Evidence Act puts an embargo on a tenant of an immovable property, during the continuance of the tenancy to deny the title of his landlord at the beginning of his tenancy. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord's title. Thus, this principle of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. Howsoever defective title of such landlord could be, such tenant cannot deny his title. 23. Coming to the facts the tenant did not dispute the jural relationship of landlord and tenant all through, except at the time of revision stating that the property belongs to Wakf. 24. Section 2 Clause (vi) of the Act define 'landlord' which reads as under : "Landlord" means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. Explanation :-A tenant who sub-lets a building shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant. 25. The definition of 'landlord' is very wide to include any person who is receiving or is entitled to receive the rent. The explanation includes even a tenant to be a landlord under this Act. When the tenant has all through paid rents to the landlord, he cannot contend that he has no right whatsoever and that Wakf is the real owner and he will not be liable to be evicted from the premises. 26. A competent Civil Court earlier opined that the property was not a ‘Wakf property’. May be the Wakf Board has filed suit O.S. No.29 of 2003 on the file of A.P. Wakf Tribunal for a declaration that the suit property along with some other property are Wakf properties. It is still to be adjudicated. 27. At the cost of repetition, ex facie a competent civil Court found that the petition schedule property is not Wakf property. It is still to be adjudicated. 27. At the cost of repetition, ex facie a competent civil Court found that the petition schedule property is not Wakf property. The subsequent proceedings taken by Wakf Board would in no way disentitle the landlord from evicting the tenant. All through tenant was paying rents to the landlord. He cannot suddenly adjudicate the title and counter title on Wakf Board and deny title of landlord. The denial of title is mala fide. I do not see any irregularity or illegality in appreciation of evidence either by the appellate Court or by the trial Court. There is no error of jurisdiction while adjudicating the matter. Accordingly, the revision petition is dismissed. I do not see any merits in the revision petition. CRP MP No.1987 of 2007 is dismissed as infructuous in view of the disposal of the revision petition. 28. In the result, the revision petition is dismissed. However, in the circumstances, no costs. Time granted for eviction is three (3) months.