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Andhra High Court · body

2011 DIGILAW 1029 (AP)

Habeebullah Khan v. Shaik Yousuf

2011-11-18

B.CHANDRA KUMAR

body2011
Judgment : 1. This revision is directed against the judgment dated 21.07.2009 passed in R.A.No.91 of 2007 by the Chief Judge, City Small Causes Court, Hyderabad (‘the appellate authority’, for brevity), whereby and whereunder, the order dated 27.02.2007 passed in R.C.No.12 of 2004 by the IV Additional Rent Controller – cum – XVI Junior Civil Judge, Hyderabad (‘the Rent Controller’, for brevity) was set aside. 2. The petitioner herein is the landlord and the respondent herein is the tenant of the premises bearing municipal No.10-2-317/1/B2, situated at New Mallepally, Hyderabad (petition schedule premises). For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Rent Controller. 3. Shorn of other details, the brief case of the petitioner is that he is the owner of the petition schedule premises and that the respondent entered into the petition schedule premises as a tenant under Ex.B.1 – Rental Agreement dated 22.04.1997 for a period of 11 months and that the agreed rent is Rs.950/- per month exclusive of electricity and water charges payable on 5th of each calendar month. Alleging that the respondent was not paying the rents regularly from January 2001 till 09.04.2004, i.e., till the date of filing of the RC and as such committed default in payment of rents, the petitioner sought eviction of the respondent from the petition schedule premises by filing the above referred RC under Section 10 (2) (i) of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960. The petitioner has shown the boundaries of the petition schedule premises as North = Owners property and 40 feet road; South = Naala (drainage); East = 60 feet road and neighbours property; and West = Owners property; and the total extent is 46 square yards. 4. The respondent contested the matter and filed a detailed counter. The sum and substance of his case is that he is not the tenant of the petitioner in the petition schedule premises and, therefore, the question of paying of rents or committing default in payment of rents to the petitioner does not arise. He denied the specific averment of the petitioner with regard to default in payment of rents. His specific case is that he is the absolute owner of the petition schedule premises and that the municipal number of the said premises is 10-2-300/8/12 admeasuring 86 square yards. He denied the specific averment of the petitioner with regard to default in payment of rents. His specific case is that he is the absolute owner of the petition schedule premises and that the municipal number of the said premises is 10-2-300/8/12 admeasuring 86 square yards. It is also alleged that the petitioner has wrongly shown the address of the respondent as 10-2-317/1/B2. The respondent’s further case is that he is the owner of the premises bearing municipal number 10-2-300/8/12 admeasuring 86 square yards, which he purchased along with his father under registered sale deed vide document No.2149 of 1985 with boundaries West = Road; East and South and North = Neighbours property. It is also his case that the said property has been assessed to municipal tax and that he has been paying the electricity and water charges and thus denied the title of the petitioner over the petition schedule property. 5. The learned Rent Controller framed necessary issues for trial. On behalf of the petitioner, he himself was examined as P.W.1 and P.Ws.2 and 3 were examined and Exs.A.1 to A.66 were marked. On behalf of the respondent, he himself was examined as R.W.1 and R.Ws.2 to 4 were examined and Exs.B.1 to B.13 were marked. 6. The learned Rent Controller, on appreciation of oral and documentary evidence available on record, came to the conclusion that the version of the respondent is not correct and his father’s name shown in Ex.B.1 is not tallying with the name in the cause title and that the respondent’s signature appearing on Ex.A.1 – Rental Deed is tallying with the signature available on the notices served on him and that the denial of title by the respondent is not genuine. Holding so, the learned Rent Controller allowed the R.C. Aggrieved by the same, the respondent carried the matter in appeal before the appellate authority and the appellate authority, on re-appreciation of oral and documentary evidence available on record, came to the conclusion that there is serious dispute with regard to the title and the boundaries of the petition schedule premises and the boundaries shown in the documents filed by the petitioner are not tallying and that the petitioner has failed to prove that the municipal number of the petition schedule premises is 10-2-317/1/B2 and it cannot be said that the premises claimed by the petitioner and the respondent are one and the same. Holding so, the appellate authority allowed the appeal setting aside the order RC. Aggrieved by the same, the petitioner is before this Court in this revision. 7. Heard the arguments of Sri Mohammed Adam, learned counsel for the petitioner and Sri Asifuddin, learned counsel for the respondent. 8. The points that arise for consideration in this revision are (1) whether the denial of title by the respondent is bonafide; and (2) whether the learned Rent Controller is right in comparing the signatures of the respondent available on Ex.A.1 – Rental Agreement and the notices and holding that the respondent has filed those two documents. 9. The sum and substance of the arguments of the learned counsel for the petitioner is that the petitioner has let in oral and documentary evidence which proves that he is the owner of the petition schedule premises. It is also his submission that certain suggestions given to P.W.1 in the cross-examination, for example, “the respondent has converted the petition schedule premises into four rooms”, go to show that the respondent has admitted the title of the petitioner over the petition schedule premises. It is also his submission that the respondent failed to prove that he is the owner of the petition schedule premises and the discrepancies with regard to his father’s name. 10. Keeping in view the limited scope of this Court in revision, it is not necessary to deal with the other contentions raised with regard to the claim of the third party or a detailed discussion as to whether the parties proved their title or not. 11. 10. Keeping in view the limited scope of this Court in revision, it is not necessary to deal with the other contentions raised with regard to the claim of the third party or a detailed discussion as to whether the parties proved their title or not. 11. The petitioner’s specific case is that he is the owner of the premises bearing municipal number 10-2-317/1/B2 situated at New Mallepally, Hyderabad, bounded by North = owners property; South = Naala (drainage); East = 60 feet road and neighbours property; West = owners property; and the total extent is 48 square yards. The petitioner, who was examined as P.W.1, has given the boundaries of the property as East = Owners property; West = Plot No.35 of Vani; North = Owners property; and South = Naala (drainage). Ex.A.1 is the Rental Agreement dated 22.04.1997, filed by P.W.1. The boundaries in Ex.A.1 are not clear since only measurements have been given, but however, towards West, Naala (drainage) has been shown. Ex.A.12 is the sale deed dated 12.06.1981. In this exhibit also, boundaries are not clear, but however, towards West, Naala (drainage) has been shown. Ex.A.13 is another sale deed filed by the petitioner in which the total extent of the premises is shown as 85.40 square metres and the boundaries are shown as North = open land belonging to vendee; South = Naala (drainage); East = Open land belonging to vendee; and West = open land belonging to one M.K.Vani. Thus, the boundaries shown in the petition schedule prima facie appears to be not tallying with the boundaries shown by P.W.1 in his oral evidence or with the boundaries shown in the documents of title filed by him. Anyhow, it is an admitted fact that the house number shown by the petitioner is different from the house number shown by the respondent. Similarly, the boundaries and the extent of land are also different. There is another interesting factor. The petitioner himself admitted that he had leased out the petition schedule premises as a ‘katcha shed with Dambar Sheet, WC and Bath situated outside’ to the respondent and according to the petitioner, the respondent converted two rooms into four rooms. Similarly, the boundaries and the extent of land are also different. There is another interesting factor. The petitioner himself admitted that he had leased out the petition schedule premises as a ‘katcha shed with Dambar Sheet, WC and Bath situated outside’ to the respondent and according to the petitioner, the respondent converted two rooms into four rooms. When the respondent had converted two rooms into four rooms, it is not clear as to why the petitioner had kept quiet and allowed the respondent to convert the ‘katcha shed’ into four rooms instead of objecting the same. P.W.1 also admitted that in the plaint annexed to Ex.A.13 that the municipal number is 10-2-217/1/b/2 and the extent is 85 square yards. He had also admitted that as on today, the premises number is 10-2-317/1/b/2 in the municipal records and as per Ex.A.13, the premises number is 10-2-317/b/2 and he says that it is a type mistake and that he knows the fact of occurring incorrect number. However, he claims that there is no necessity to get the said number corrected. The evidence of P.Ws.2 and 3 is also not much helpful. P.W.2 deposed that he does not remember the door number or the boundaries of the petition schedule premises. P.W.3 has also not given the house number in the chief examination and gives the door number in the cross-examination. 12. Anyhow, oral evidence cannot be given any credence. The appellate authority seems to have rightly held that there is serious dispute with regard to the title. I am not inclined to consider the evidence of the respondent with regard to his claim of title to the petition schedule property and also with regard to the discrepancy in his father’s name. It is settled law that however weak the case of the respondent may be, the burden lies on the petitioner to prove his prima facie case. When the tenant denies the title of the landlord or asserts title to the property, the burden obviously lies on the landlord to show that he has prima facie title to the property. Though no detailed examination is required, but only for the purpose of determining whether the denial of the title by the respondent is bonafide or not, the petitioner has to let in some satisfactory evidence to prove his title to the property. Though no detailed examination is required, but only for the purpose of determining whether the denial of the title by the respondent is bonafide or not, the petitioner has to let in some satisfactory evidence to prove his title to the property. Therefore, I hold that the findings of the appellate authority are based on record and it cannot be said that the said findings are perverse. 13. There is another aspect. Learned Rent Controller has compared the signature of the respondent available on Ex.A.1 – Rental Agreement alleged to be that of the respondent with his signature available on the notices said to have been served on him. It has to be seen that the respondent has specifically denied the service of notice on him in his counter as well as in his evidence. When the respondent has specifically denied the service of notice on him, learned Rent Controller committed a blunder in comparing the signature of the respondent in Ex.A.1 – Rental Agreement with the signature on notice. It has to be seen that both the signatures have been denied by the respondent. Even if it is presumed for a moment that notice is served on a party, of course the same may be part of the record, but the signatures available on such notices and summons cannot be compared with the disputed signatures unless those signatures are confronted to the party who alleged to have signed on such notices or summons. The possibility of committing mistake in serving the notices cannot be ruled out. The possibility of the Process Servers colluding with the other party and obtaining the signatures of some other person in the place of the person to whom such summons have to be served or committing mistake in identifying a party also cannot be ruled out. When a Court intends to compare the signatures of a party available on the notices or summons, then the Court should re-open the matter and re-examine such party and confront the signatures available on such notices or summons to that party and if the party admits the same, then only such signatures can be compared with the disputed signatures. It is settled law that when there is serious dispute with regard to the title, the Rent Controller looses his jurisdiction. 14. It is settled law that when there is serious dispute with regard to the title, the Rent Controller looses his jurisdiction. 14. In view of the above discussion, I hold that there are no merits in the revision and the revision is liable to be dismissed. 15. Accordingly, the revision is dismissed, but however, in the circumstances, without costs.It is made clear that any observations with regard to the house numbers or the boundaries or merits of the claim of the parties with regard to the title of the property shall not be taken into consideration in any civil dispute which may arise in future between the parties.