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2013 DIGILAW 624 (AP)

M. Naveen Kumar v. P. Satyanarayana

2013-08-02

A.RAJASHEKER REDDY

body2013
JUDGMENT : This civil revision petition is filed under Section 22 of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’) challenging the judgment dated 03.12.2007 in R.A.No.259 of 2005 on the file of the Chief Judge, City Small Causes Court, Hyderabad, wherein the learned Chief Judge allowed the appeal by setting aside the eviction order dated 22.10.2005 in R.C.No.271 of 2003 on the file of the I Additional Rent Controller, Hyderabad. Facts, which are necessary for disposal of the revision petition, are as under: The revision petitioner-landlord filed eviction petition in R.C.No.271 of 2003 under Section 10(2)(i) of the Act for eviction of the respondent herein-tenant on the ground of willful default in payment of rent. The case of the revision petitioner-landlord is that originally the petition schedule house was allotted to A.P.Housing Board in the name of N.Mahanand and the respondent herein was tenant having obtained the same from Mahanand on rent under the oral tenancy. The respondent herein withheld the rents and filed a suit for perpetual injunction in O.S.No.1710 of 1993 against the said Mahanand and the said suit was dismissed. The respondent herein admitted the title of the said Mahanand in the said suit. The said A.P.Housing Board has not executed sale deed in the name of Mahanand and as such, he has not taken any steps for eviction of the respondent-tenant though he withheld the rents and he got the sale deed in the year 2002 i.e., on 24.08.2002. Thereafter, he executed a registered gift deed in the name of the revision petitioner on 13.05.2003 and as such the revision petitioner became the owner of the schedule property and entitled to receive the rents from the date of gift. After he became the owner of the schedule property by virtue of the gift, the revision petitioner approached the respondent herein-tenant and informed him about the said gift and requested to pay rents to him, but he did not pay rents from May, 2003 onwards @Rs.900/- per month. The revision petitioner got issued notice and in spite of that, the respondent-tenant failed to pay the rents by denying the title of the revision petitioner by giving a reply dated 16.06.2003. Since the respondent-tenant failed to pay rent and denied the title of the revision petitioner, eviction petition was filed. The revision petitioner got issued notice and in spite of that, the respondent-tenant failed to pay the rents by denying the title of the revision petitioner by giving a reply dated 16.06.2003. Since the respondent-tenant failed to pay rent and denied the title of the revision petitioner, eviction petition was filed. The respondent herein-tenant filed counter stating that he is carrying on business in the schedule premises. It is also stated that the revision petitioner and his father Bansilal and his uncle have hatched a conspiracy to defeat the legitimate rights of the respondent-tenant. The respondent-tenant stated that he has taken schedule house on rent from the father of the revision petitioner and he used to pay the rents. In the year 1990 i.e., on 01.07.1990, father of the revision petitioner informed him that in the family partition, the schedule house was allotted to him and another house was allotted to Mahanand, the paternal uncle of the revision petitioner. Thereafter, the father of the revision petitioner and his brother Mahanand came to the respondent-tenant and offered to sell the schedule property for a consideration of Rs.82,500/- and believing the offer made by the father of the revision petitioner and his brother, he accepted the said offer and accordingly an oral agreement of sale was entered on 10.07.1990 and out of the total amount, he paid Rs.12,000/-to them as part of sale consideration and it is agreed that the respondent-tenant shall pay the balance amount at the time of the registration by the A.P.Housing Board. By that date, i.e., 10.07.1990, the respondent-tenant was in possession of the schedule property and the father of the revision petitioner and his brother handed over the symbolic possession to the respondent-tenant. As such, he stopped paying rent to them. As per the agreement, he paid Rs.6,300/- as part of sale consideration to the A.P.Housing Board and paid Rs.32,600/-to the father of the revision petitioner on two different occasions. Only the balance of Rs.31,600/- has to be paid by the respondent-tenant at the time of execution of the sale deed in his name. Since the date of the agreement of sale, he has been in possession as an agreement holder and not as a tenant and also paid the property tax upto date. The original challans were submitted to the A.P.Housing Board. Since the date of the agreement of sale, he has been in possession as an agreement holder and not as a tenant and also paid the property tax upto date. The original challans were submitted to the A.P.Housing Board. The father of the revision petitioner also passed receipts for the payments made by him. In the year 1990, the schedule property was adjacent to graveyard and there was no commercial value and the property would not fetch more than Rs.60,000/-by that date. It is also stated that the respondent-tenant spent huge amount for conducting repairs and constructing more structures. It is also stated that he filed O.S.No.1710 of 1993 for injunction against the father of the revision petitioner and his brother, which was dismissed on technical grounds. It is also the case of the respondent-tenant that he requested the father of the revision petitioner to execute a registered sale deed in his favour but they avoided to do the same on one pretext or the other. The respondent-tenant is even now ready to execute his part performance of agreement of sale dated 10.07.1990. It is also stated that the respondent has filed a suit O.S.No.440 of 2004 for specific performance of the agreement of sale and the same is pending. Basing on the above pleadings, the following points were settled by the Rent Controller: (1) Whether the petitioner is entitled for eviction of the petition schedule property basing on the ground of willful default in payment of rents ? (2) To what relief ? On behalf of the revision petitioner, the petitioner himself was examined as P.W.1 and got marked Exs.P.1 to P.4. On behalf of the respondent, the respondent-tenant himself was examined as R.W.1 and got marked Exs.R.1 to R.27. The Rent Controller after discussing the oral and documentary evidence, allowed the eviction petition by order dated 22.10.2005 on the ground that there was willful default in payment of rents and also on the ground that the tenant denied the title of revision petitioner without any legal right. Challenging the same, the respondent-tenant filed R.A.No.259 of 2005 on the file of the Chief Judge, City Small Causes Court, Hyderabad, which was allowed by order dated 03.12.2007. Against the same, the present revision is preferred by the landlord. Challenging the same, the respondent-tenant filed R.A.No.259 of 2005 on the file of the Chief Judge, City Small Causes Court, Hyderabad, which was allowed by order dated 03.12.2007. Against the same, the present revision is preferred by the landlord. Learned counsel for the revision petitioner contended that the Rent Controller has rightly ordered eviction on the ground of willful default, since the respondent-tenant has failed to pay rents. He also contended that the respondent-tenant without any basis denied the title of the revision petitioner. He also contended that suit filed for specific performance in O.S.No.440 of 2004 filed by the respondent-tenant was dismissed on merits in June, 2013, which shows that the tenant has no legal right over the schedule premises. He also contended mere non-payment of rent for a long period does not put an end to tenant and landlord relationship, at the most, when the term of lease expired, the lessee can determine the lease by fulfilling his obligation of putting the lessor into possession of the property, if the on the contrary the lessee remains in possession thereof after the expiry of the lease, then he does not become a trespasser in relation to the property; his status is that of a tenant at sufferance, such a case is governed by the provisions of Section 116 of the T.P.Act. He placed reliance on a judgment in Surajmal Marwari and others vs. Rampearaylal Khandelwal and others (AIR 1966 Patna 8 (Vol.53, C.3)in support of his contentions. He also contended that the respondent-tenant admitted that he paid rents to Mahanand, who is the brother of the revision petitioner’s father, and who executed a registered gift deed in favour of the revision petitioner, as such, landlord and tenant relationship exists, since the revision petitioner stepped into the shoes of Mahanand by virtue of gift deed. He also contended that the so-called agreement said to have been executed by the father of the revision petitioner, cannot confer any title on the tenant as rights under the agreement have yet to be decided in O.S.No.440 of 2004 filed by the respondent-tenant for specific performance and only after his rights are decided in O.S.No.440 of 2004, and he can get back the possession, if O.S.No.440 of 2004 is decreed. He also contended that unless the tenant succeeds in O.S.No.440 of 2004, he cannot continue as owner of the schedule premises and till such time, he has to pay rents to the owner. He placed reliance on the judgments in Kareem Hussain (died) by LRs v. Veeranki Rama Krishna Prasad (died) by LRs.( 2007 (2) ALD 808 )and Kedar Bhatia v. Lingarkar Panduranga Rao and others ( 1998(1) ALD 224 ). He also contended that Ex.R.10 stated to be advance receipt-cum-declaration is dated 10.07.1990, but it is written on stamp paper dated 11.07.1990 and the tenant signed on 10.07.1990, which also creates a doubt about the so-called advance receipt-cum-declaration. He also contended the respondent herein-tenant admitted that the donor of the revision petitioner is the landlord; when once the tenant and landlord relationship is admitted and once he failed to pay rents, he is liable to be evicted for having committed default in payment of rents. He also contended that the appellate Court on erroneous view, allowed the appeal filed by the respondent-tenant. On the other hand, the learned counsel for the respondent-tenant submitted that father of the revision petitioner-landlord executed Ex.R.10 advance receipt-cum-declaration dated 10.07.1990 agreeing to sell the schedule premises to the respondent-tenant and the respondent-tenant also paid several instalments to the A.P.Housing Board and he was only waiting to get registered sale deed in his favour. He also contended that after this advance receipt-cum-declaration in Ex.R.10 executed on 10.07.1990, he stopped paying rents, as he was given symbolic possession as purchaser. He also contended that from 10.07.1990 onwards he is continuing in the schedule premises as purchaser of the property and hence there is no landlord and tenant relationship. He further contended that in view of the rival claims when there exists a serious dispute as to the title, the respondent-tenant contends that he is in possession of the schedule premises as purchaser and not in the capacity of the tenant. He further contended that every person in possession of the premises, even without title, cannot become a tenant automatically, of any one, including that of the rightful owner. He further contended that the respondent-tenant is in possession of the premises as purchaser, as such the Rent Controller cannot order for eviction as landlord and tenant relationship exists. He further contended that every person in possession of the premises, even without title, cannot become a tenant automatically, of any one, including that of the rightful owner. He further contended that the respondent-tenant is in possession of the premises as purchaser, as such the Rent Controller cannot order for eviction as landlord and tenant relationship exists. He relied on the judgment in Avulapalle Mallikarjuna and others v. N.T.Chengalarayappa ( 2010(1) ALD 366 )and K.P.Janakiram v. K.Suguna Bai ( 1995(2) ALT 61 ). He further contended that just because the revision petitioner filed some documents to establish his title, the eviction petition cannot be ordered unless the revision petitioner establishes that there is landlord and tenant relationship between the revision petitioner and respondent-tenant. It is also contended that in the present case, there is no such relationship, as such, the Rent Controller has no jurisdiction to order eviction and the appellate Court has rightly set aside the eviction order passed by the Rent Controller. In the present case, it is to be seen that the respondent-tenant filed O.S.No.1710 of 1993 against the father and uncle of the revision petitioner for permanent injunction, in which he admitted that uncle of the revision petitioner, who gifted the property to the revision petitioner, is the landlord. The said suit was dismissed by decree and judgment dated 22.10.1998 holding that injunction cannot be granted against the owner and it is stated that it has became final. The plea taken by the respondent in that suit was that Mahanand who is the donor of the schedule premises to the revision petitioner is the landlord. He set up agreement of sale and he is continuing as purchaser and that there is no landlord and tenant relationship. In this case, admittedly A.P.Housing Board executed registered sale deed in favour of Mahanand, who gifted the schedule premises by gift deed Ex.P.1 dated 13.05.2003 in favour of revision petitioner. By virtue of Exs.P.1 & P.4, it can safely be concluded that the revision petitioner has become owner of the schedule premises from 13.05.2003. Regarding the claim of the respondent-tenant that he is continuing as purchaser, it is to be seen that unless he succeeds in O.S.No.440 of 2004, which is filed for specific performance of agreement of sale in respect of schedule premises, he cannot continue as owner in the suit schedule premises. Regarding the claim of the respondent-tenant that he is continuing as purchaser, it is to be seen that unless he succeeds in O.S.No.440 of 2004, which is filed for specific performance of agreement of sale in respect of schedule premises, he cannot continue as owner in the suit schedule premises. In this case, it is not the case of the tenant that he has become owner, he is only an agreement holder and unless he succeeds in the suit for specific performance, he cannot get the title. The lower appellate Court also in paragraph-24 held that plea of respondent-tenant that he is in possession of the house as an agreement holder and that he stopped paying rents following agreement of sale and ceased to be the tenant is ultimately true or not is to be decided between the parties in O.S.No.440 of 2004 filed for specific performance and the appellate Court also held that the successful party in that litigation can get possession of the house depending upon the result of that litigation. In Ex.R.10 advance receipt-cum-declaration also, it is not stated that possession has been given to respondent as purchaser, as such, it cannot be said that respondent is continuing as purchaser. In Kareem Hussain (died) by LRs case (2 supra), it is held that if the tenant succeeds in the suit for specific performance, the summary proceedings under the Act are only subject to result of the suit for specific performance. In the present case, it is stated that the suit for specific performance was also dismissed, which is not disputed by the counsel for the respondent-tenant, as such, even on that ground, the revision petitioner is entitled for eviction of the property as respondent tenant failed to pay rent. In this case, when the respondent-tenant himself admitted the landlord and tenant relationship, again he cannot deny the same basing on the agreement of sale. If at all, the respondent-tenant has any right, he can get his right declared in O.S.No.440 of 2004, eviction order passed under summary jurisdiction in Rent Control proceedings is subjected to the result in O.S.No.440 of 2004 as rightly held by the lower appellate Court. If at all, the respondent-tenant has any right, he can get his right declared in O.S.No.440 of 2004, eviction order passed under summary jurisdiction in Rent Control proceedings is subjected to the result in O.S.No.440 of 2004 as rightly held by the lower appellate Court. The lower appellate Court held that Mahanand was not examined, as such, the lower appellate Court drawn an inference that the revision petitioner cannot depose to the facts, but when the facts and circumstances are seen that the respondent-tenant himself admitted landlord and tenant relationship and the revision petitioner has shown that he got the properties from the landlord of the respondent, as such non-examination of Mahanand and Bansilal cannot have any effect in deciding the landlord and tenant relationship between the revision petitioner and respondent-tenant. In Avulapalle Mallikarjuna case (4 supra), it is held that 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 separate proceedings. In the present case, respondent himself admitted that donor of revision petitioner was landlord of suit premises, as such, principle laid down in the above case has no application. In K.P.Janakiram case (5 supra), it is held that a person who cannot prove his title to the premises cannot be held to be a tenant and that the person claiming any title should approach civil court for getting eviction and not through the Rent control Court. In that case, both the Courts below, under misinterpretation, came to the conclusion that the tenant admitted the landlord and tenant relationship. In that case, both the Courts below, under misinterpretation, came to the conclusion that the tenant admitted the landlord and tenant relationship. In the present case, the revision petitioner has proved that he is the owner of the premises and the respondent-tenant admitted that there is landlord and tenant relationship with predecessors in title of the revision petitioner and failed to prove that he is paying rents in respect of the schedule premises. In view of the same, I am of the opinion that the revision petitioner is entitled for eviction as ordered by the Rent Controller. In the present case, whatever it is, when once the landlord establishes the landlord and tenant relationship and proves his title and the tenant has not paid rents, landlord is entitled for eviction. Since it is stated that O.S.No.440 of 2004 filed by the respondent-tenant for specific performance in respect of suit schedule premises is dismissed, on that ground also as observed by the appellate Court, the revision petitioner is entitled for eviction of the schedule premises. However, eviction proceedings will be subject to further proceedings to be taken by the respondent-tenant in O.S.No.440 of 2004. Since the proceedings under Rent Controller are only summary in nature, the Rent Control Court cannot decide the title, except prima facie title. In view of the above discussion, the judgment dated 03.12.2007 in R.A.No.259 of 2005 on the file of the Chief Judge, City Small Causes Court, Hyderabad, is liable to be set aside and the order dated 22.10.2005 in R.C.No.271 of 2003 on the file of the I Additional Rent Controller, Hyderabad, is liable to be restored. Accordingly, the Civil Revision Petition is allowed by setting aside the judgment dated 03.12.2007 in R.A.No.259 of 2005 on the file of the Chief Judge, City Small Causes Court, Hyderabad, and consequently, the eviction order dated 22.10.2005 in R.C.No.271 of 2003 on the file of the I Additional Rent Controller, Hyderabad, is restored. As a sequel, miscellaneous petitions, if any pending in this revision, shall stand disposed of.