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2009 DIGILAW 488 (AP)

Avulapalle Mallikarjuna v. N. T. Chengalarayappa

2009-07-22

L.NARASIMHA REDDY

body2009
Judgment :- (Petition under Article 227 of the Constitution of India, aggrieved by the order dated: 30-08-2005 in RCA NO: 1 of 2004 on the file of the court of the Senior Civil Judge, Punganur preferred against the order Dated: 30-08-2004 in R.C.C. No. 5/1997 on the file of the Court of the Principal Junior Civil Judge-cum-Rent Controller, Punganur.) The petitioners filed R.C.C.No.5 of 1997 before the learned Rent Controller-cum-Principal Junior Civil Judge, Punganur, against the respondent for eviction from the schedule premises. It was pleaded that in a family partition, which took place in the year 1994, the suit property fell to the share of one, Mr. Base Gowdu, the husband of the 1st petitioner and father of petitioners 2 to 5. It was stated that after the death of Base Gowdu, the petitioners have become the absolute owners. The property is said to have been leased out to the respondent on a monthly rent of Rs.150/-. It was alleged that though the rent was paid regularly up to June, 1994, the respondent stopped payment of rent thereafter. Bona fide requirement of premises was also pleaded. The respondent opposed the case, by stating that Base Gowdu and his brothers sold the schedule property, orally, for a sum of Rs.6,500/- in his favour, about 22 years ago, and that possession was delivered. He is said to have incurred expenditure for renovating and repairing the premises. Reference is made to exchange of notices for specific performance of the agreement of sale. Through its order dated 30-08-2004, the trial Court allowed the RCC. The respondent filed R.C.A.No.1 of 2004 in the Court of Senior Civil Judge, Punganur. The appeal was allowed on 30-08-2005, and the order passed by the Rent Controller was set aside. Hence this revision. Sri J. Ugra Narasimha, learned counsel for the petitioners submits that the plea raised by respondent, that he purchased the property is belied from the very fact that O.S.No.125 of 1998, filed by him, in the Court of Principal Junior Civil Judge, Punganur, for the relief of specific performance, in respect of the same property, was dismissed. He contends that the lower Appellate Court was not justified in reversing the well-considered findings recorded by the trial Court, when admittedly, the respondent did not pay the rents for several years. He contends that the lower Appellate Court was not justified in reversing the well-considered findings recorded by the trial Court, when admittedly, the respondent did not pay the rents for several years. Sri N. Pramod, learned counsel for the respondent, on the other hand, submits that the petitioners failed to prove that the respondent was the tenant of the premises, at any point of time, and the very filing of the RCC was untenable. He contends that there was no basis for the learned Rent Controller to entertain the RCC, when a suit for specific performance was filed by the respondent before that very Court, as regards the same property. Learned counsel submits that the dismissal of the suit does not provide any justification for the petitioners to seek eviction, by having recourse to the proceedings under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ‘the Act’). The petitioners sought eviction of the respondent by pleading that he was their tenant and that he committed default in payment of rent. The respondent, on the other hand, pleaded his own title and independent right, vis-à-vis the property. On behalf of the petitioners, the 5th petition deposed as PW-1, and Exs.P-1 to P-7 were marked. Out of them, Exs.P-1 to P-5 are house tax receipts, and Exs.P-6 and P-7 are legal notice and reply, respectively. The respondent deposed as RW-1, and in addition to that, N. Venkatappa, was examined as RW-2. Exs.R-1 to R-20 were filed by them. Ex.R-1 is an agreement of sale, said to have been executed by Base Gowdu, and his brothers on 28-04-1994. Respondent also filed quite large number of tax receipts. He has also pleaded that he discharged the mortgage that existed between Base Gowdu and Linga Raju, with part of the sale proceeds of the property. There was no dispute as to the fact that the respondent is in possession of the property. While according to the petitioners, it was in the capacity of a tenant, the respondent stated that he is in possession of the property, as owner. There existed serious dispute as to title. In addition to that, the petitioners were not able to prove, even a single instance of the respondent paying rent to them. Therefore, it was a fit case for return, or rejection of the R.C.C. leaving it open to the parties to litigate about the title. There existed serious dispute as to title. In addition to that, the petitioners were not able to prove, even a single instance of the respondent paying rent to them. Therefore, it was a fit case for return, or rejection of the R.C.C. leaving it open to the parties to litigate about the title. It was rather accidental that the respondent himself filed O.S.No.125 of 1998 in the same Court, for the relief of specific performance of agreement of sale. That suit was dismissed on the sole ground that the RCC was allowed. Even assuming that the dismissal of the suit by the trial Court resulted in negation of the right asserted by the respondent, much more, than that; was needed, to order his eviction, under the Act. Every person in possession of premises, even without title; cannot become a tenant automatically, of any one, including that of the rightful owner. While possession can come into existence with unilateral acts of parties, a tenancy is the one, which would emerge only with the consent of parties. The consent can be expressed orally, or in writing. Until the tenancy, that too, of a particular nature was not established by the petitioners, there was no basis for the trial Court to order eviction of the respondent. The fact, that the suit filed by the respondent for specific performance was dismissed, may enable the respondent to seek recovery of possession, by instituting a separate suit. There did not exist any basis for the petitioners to file the R.C.C. The trial Court took note of the same and reversed the order passed by the learned Rent Controller. This Court is in agreement with the view expressed by the lower Appellate Court. The C.R.P. is accordingly dismissed. However, it is left open to the petitioners to seek recovery of possession of the property, by filling a separate suit. There shall be no order as to costs.