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2013 DIGILAW 673 (AP)

Eedi Anjali Devi v. Chagantipati Lakshminarayana @ Srinu

2013-08-21

A.RAJASHEKER REDDY

body2013
JUDGMENT : According to the revision petitioner, the 1st respondent filed R.C.C.No.147 of 1996 on the file of the Rent Controller-cum-IV Addl. Junior Civil Judge, Vijayawada, against the 2nd respondent for eviction of the petition schedule premises and it was allowed on 27.01.1998. In pursuance thereof, the 1st respondent filed E.P.No.11 of 1998. The revision petitioner filed a claim petition in E.A.No.65 of 1998 in E.P.No.11 of 1998 in R.C.C.No.147 of 1996 under Rule 23(7) of the A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 (for short ‘the Rules’) seeking to enquire into the matter and dismiss the EP, on the grounds that the order passed in the rent control case is not binding on her and unenforceable against her, that the 1st respondent is not the landlord and owner of the petition schedule premises, that on 17.02.1997, she purchased the property from one Singavarapu Sitaravamma for a sale consideration of Rs.1,02,000/- and she was put in possession of the property and she is enjoying the same by paying tax, and that her son, who is doing business in the petition schedule premises in the name and style “Bhavani Sai Motor Works”, got mutated the property in the official records of Vijayawada Municipal Corporation. The 1st respondent filed counter denying the allegations made in the EA and contending that the petitioner is no other than the wife of the 2nd respondent, that the petitioner’s alleged vendor Singavarapu Sitaravamma is no other than his mother, that his mother executed a registered Deed of Settlement dated 27.06.1963 vide Ex.B.32 in his favour reserving the right to enjoy the income from the petition schedule premises and later she surrendered her limited right to enjoy the property during her life time in his favour, and that thereafter his mother executed an agreement on 31.01.1988 surrendering her life interest in respect of the property in his favour. The 2nd respondent also filed counter stating that the 1st respondent had no right to execute the decree in the rent control case, that he already vacated the schedule premises and delivered vacant possession of it to the original landlady Smt. Singavarapu Sitaravamma one week prior to the registration of Sale Deed in favour of the petitioner, as such, he is no more tenant either to the 1st respondent or to Singavarapu Sitaravamma, and that he had nothing to do with the matter, as he vacated the schedule premises on 17.02.1997 i.e., before the order dated 27.01.1998 passed in the rent control case. On her behalf, the revision petitioner examined herself as P.W.1 and got marked Exs.A.1 to A.14 before the Rent Controller. On behalf of the respondents, R.Ws.1 to 5 were examined and Exs.B.1 to B.33 were marked. The Rent Controller, after considering the evidence both oral and documentary, dismissed the claim petition filed by the revision petitioner by order dated 09.06.2008. The same is questioned in this civil revision petition. During the pendency of the civil revision petition, the revision petitioner filed C.R.P.M.P.No.4128 of 2013, under Section XLI Rule 27 r/w Section 151 of CPC, with a prayer to receive copies of plaint and written statement in O.S.No.656 of 2008 on the file of the IV Addl. Senior Civil Judge, Vijayawada filed by the 1st respondent against her and others. Since no counters are filed by the respondents, the petition is allowed and the said documents are marked as Exs.A.15 and A.16 respectively. Learned counsel for the petitioner contended that the petitioner purchased the petition schedule premises by virtue of Ex.A.1 -registered Sale Deed dated 17.02.1997 from the mother of the 1st respondent and, thereafter, she filed O.S.No.190 of 1998 on the file of the III Addl. Senior Civil Judge, Vijayawada against the 1st respondent for declaration of title and permanent injunction in respect of the same property, which was decreed on 08.10.1998, as such, the claim petition filed by the petitioner should have been allowed by the Rent Controller as injunction is operating against the 1st respondent. He also contended that when the civil Court decreed O.S.No.190 of 1998 in favour of the petitioner and the same has become final, the Rent Controller has no jurisdiction to decide the title and thereby proceed with the execution. He also contended that when the civil Court decreed O.S.No.190 of 1998 in favour of the petitioner and the same has become final, the Rent Controller has no jurisdiction to decide the title and thereby proceed with the execution. He also contended that the 1st respondent cannot assert title in respect of the petition schedule premises, unless O.S.No.656 of 2008 filed by him against the petitioner and others for declaration of his title in respect of the plaint schedule property, the petition schedule premises herein, and for possession etc., is allowed. In support of his contentions, he relied on the judgments in Life Insurance Corporation of India Vs. India Automobiles and Co. and others (1990) 4 SCC 286 ), Mirza Basharath Ali Khan Vs. P. Jagannath Rao (2011(5) ALD 340),Ravu Elizebeth Rose Vs. Anguluri Munnemma ( 2002 (3) ALD 713 ), Saroja Vs. Chinnuswamy (dead) by L.Rs. and another ( AIR 2007 SC 3067 ), Yellagola Ramanarasaiah Vs. G. Sadanand and others ( 1989(3) ALT 610 )and KVLN Prasad Rao Vs. Government of A.P., Department of Industries ( 2003 (1) ALT 57 ). On the other hand, learned counsel for the 1st respondent contended that the 2nd respondent, who is no other than the husband of the revision petitioner, was inducted by the 1st respondent as tenant and the 2nd respondent was paying rents to the 1st respondent, as such, the landlord and tenant relationship is existing and the order of eviction was passed by the Rent Controller and the same has to be executed. He also contended that when the 2nd respondent was paying rents to the 1st respondent, it is deemed that the 1st respondent is landlord of the property and as the revision petitioner is staying with the 2nd respondent in the petition schedule premises, now she cannot contend that the 1st respondent is not the owner of the premises. He also contended that there is collusion between the revision petitioner and the 2nd respondent, as such, they have brought into existence Ex.A.1-Sale Deed dated 17.02.1997 and that Ex.A.2 is only an ex parte decree in O.S.No.190 of 1998 and it cannot be acted upon. The learned counsel submitted that the Rent Controller has rightly considered the issue in proper perspective and dismissed the EA and, therefore, no interference is called for in this revision. The learned counsel submitted that the Rent Controller has rightly considered the issue in proper perspective and dismissed the EA and, therefore, no interference is called for in this revision. He also contended that an order of eviction passed against the tenant can be executed against a person claiming to be a transferee of tenancy rights. In support of this contention, he placed reliance on the judgment of this Court in R.Venkateswarlu Vs. Vedagiri Padmavathamma and others (1977(1) APLJ (H.C) 297). The revision petitioner examined herself as P.W.1 and stated that she purchased the petition schedule premises on 17.02.1997 from the mother of the 1st respondent for a sale consideration of Rs.1,02,000/- by virtue of a registered Sale Deed. Whereas the 1st respondent claims that her mother executed a registered Deed of Settlement dated 27.06.1963 vide Ex.B.32 in his favour reserving the right to enjoy the income from the petition schedule premises and later she surrendered her limited right to enjoy the property during her life time in his favour and thereafter his mother executed an agreement on 31.01.1988 vide Ex.B.33 surrendering her life interest over the property in his favour. It is the case of the revision petitioner that after she purchased the petition schedule premises by virtue of Ex.A.1 - registered Sale Deed dated 17.02.1997, she filed O.S.No.190 of 1998 on the file of the III Addl. Senior Civil Judge, Vijayawada against the 1st respondent for declaration of title and permanent injunction in respect of the same property and it was decreed on 08.10.1998. The Rent Controller having discussed about the rights of the 1st respondent versus the revision petitioner held that Ex.A.1-Sale Deed dated 17.02.1997 was brought into existence under suspicious circumstances and there was no supporting or substantial evidence to prove the said document. The Rent Controller also held that Ex.A.2, copy of decree in O.S.No.190 of 1998, is only an ex parte decree. The Rent Controller also held that Ex.A.2, copy of decree in O.S.No.190 of 1998, is only an ex parte decree. In the instant case, it is relevant to refer to Sub-Rule 7 of Rule 23 of the Rules which reads thus:- “If such execution is resisted and obstructed by any person other than the person against whom order of eviction was passed, the Controller may hold a summary enquiry into the facts of the case and if he is satisfied that the resistance and obstruction still continue, shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction, and if he is satisfied that the resistance or the obstruction was occasioned by any person other than the person against whom order of eviction was passed claiming in good faith to be in the possession of the building on his own account or some person other than the person against whom order of eviction was passed he shall make an order disallowing the execution against such person.” It is to be seen that the revision petitioner not only purchased the petition schedule premises by virtue of Ex.A.1-registered Sale Deed, but also filed O.S.No.190 of 1998 on the file of the III Addl. Senior Civil Judge, Vijayawada against the 1st respondent for declaration of title and permanent injunction in respect of the same property and it was decreed on 08.10.1998 which is stated to have become final. As seen from Ex.A.15, the 1st respondent filed O.S.No.656 of 2008 on the file of the IV Addl. Senior Civil Judge, Vijayawada against the revision petitioner and others for declaration that he is the absolute owner of the plaint schedule property with exclusive rights of title and interests and for possession, for declaration that the registered Sale Deed dated 17.02.1997 executed by the 3rd defendant in favour of the revision petitioner and the ex parte decree dated 08.10.1998 in O.S.No.190 of 1998 are null and void and for consequential permanent injunction restraining the revision petitioner from alienating the schedule property by way of sale, gift, exchange, lease etc. in favour of others. in favour of others. When the civil Court had declared the title of the revision petitioner and granted injunction in her favour and against the 1st respondent, the Rent Controller cannot dismiss the claim petition filed by the revision petitioner and proceed with the execution of the eviction order passed in the rent control case. In Yellagola Ramanarasaiah case (5 supra), this Court in paragraph 9 of its judgment held as under: “The civil Courts are expected to respect the orders passed by each other rather than act in conflict with each other. This is based upon the principle of comity which has to be maintained between the various Courts. When the Rent Controller has come to notice that there is an order of injunction passed against the decree holder in R.C.No.79/83, he should have waited till the said injunction was modified or some other order was passed, which would not enable the said decree holder to circumvent orders of injunction which were in force in I.A.No.855/89. It may be, technically, there is no injunction restraining the Rent Controller from executing the decree of eviction in R.C.79/83, but by permitting execution with knowledge that the decree holder is restrained by another Court in executing the said decree, the Rent Controller unwittingly helped the decree holder in circumventing the orders passed by another civil Court. Such an attitude on the part of the Court is to be deprecated.” Regarding the contention of the learned counsel for the 1st respondent that Ex.A.2 is only an ex parte decree, the Apex Court in Saroja case (4 supra) held in para 9 of its judgment as under: “Once an exparte decree is passed against Kuppuswamy, in our view, the same should be taken as final decision after hearing. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed………….. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed………….. A decree which is passed ex parte is as good and effective as a decree passed after contest.” It is also to be seen that the Rent Controller cannot decide the questions of title to immovable property, as held by the Apex Court in Life Insurance Corporation of India case (1 supra) in paragraphs 21 and 22 of its judgment which read thus: “A tribunal of limited jurisdiction like the Rent Controller cannot be clothed with jurisdiction to decide far-reaching questions of title to immovable property. A question of title may be a complex one involving difficult issues. For instance, the owner may claim title under an adoption or a will or a trust or a gift deed and there may contentious claims among several persons which it will not be possible for the Rent Controller to decide.” This Court in Mirza Basharath Ali Khan case (2 supra) held that when the title of a landlord is in dispute, the Rent Controller has no jurisdiction to decide the title. In Ravu Elizebeth Rose case (3 supra), this Court in paragraph 8 of its judgment held that the Rent Controller has to hold a summary enquiry into the facts of the case and if he is satisfied that the resistance or obstruction was occasioned by the third party claiming in good faith to be in possession of the building on his own account or on account of some person other than the tenant, he shall make an order disallowing the execution against such person. When the 1st respondent has already filed a comprehensive suit for possession and other reliefs in respect of the petition schedule premises herein against the revision petitioner and others, it is appropriate that the rights of the revision petitioner and the 1st respondent are decided in that suit instead of deciding the issue in the EP herein which is summary in nature. In the case on hand, the Rent Controller has not given effect to Ex.A.2 stating that it is mere an ex parte decree and it only discussed about Ex.A.1 and it was brought into existence under suspicious circumstances and that the mother of the 1st respondent was not examined. In the case on hand, the Rent Controller has not given effect to Ex.A.2 stating that it is mere an ex parte decree and it only discussed about Ex.A.1 and it was brought into existence under suspicious circumstances and that the mother of the 1st respondent was not examined. The binding nature of Ex.A.2 is not considered by the Rent Controller. As long as Ex.A.2 is holding the field, the Rent Controller cannot pass orders in conflict with the same. This is based on principle of comity which has to be maintained between the various Courts. In R. Venkateswarlu case (7 supra) cited by the learned counsel for the 1st respondent, it is held that an order of eviction passed against the tenant can be executed against a person claiming to be a transferee of the tenancy rights under an agreement to which the landlord is not a party. Since the question of transfer of tenancy rights does not arise in the instant case, this judgment has no application. In view of the above discussion and law laid down by the Apex Court and this Court, I am of the view that the Rent Controller has erroneously dismissed the claim petition filed by the revision petitioner. Accordingly, the Civil Revision Petition is allowed by setting aside the impugned order. However, the 1st respondent is at liberty to seek for eviction of the revision petitioner, after the suit filed by him in O.S.No.656 of 2008 on the file of the IV Addl. Senior Civil Judge, Vijayawada is decreed as it is a comprehensive suit against the revision petitioner and others for declaration, possession and consequential permanent injunction. There shall be no order as to costs. As a sequel, interim order granted on 27.06.2008 is vacated and miscellaneous petitions pending in the civil revision petition shall stand disposed of.