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Andhra High Court · body

2013 DIGILAW 726 (AP)

Vanumu Kondamma v. Polavarapu Simhachalam

2013-09-04

A.RAJASHEKER REDDY

body2013
Judgment : 1. All these civil revision petitions are disposed of by this common order, since the issue involved in these cases is common, the landlord is the same in all the cases and all the premises form part of one property. 2. The facts of the case, which are necessary for disposal of these revision petitions, are as follows: The revision petitioner No.1 filed rent control cases against the respondents-tenants stating that she is the owner of the petition schedule property bearing D.No.26-14-4/1 to 26-14-4/14. It is her case that her husband originally took lease of site from Smt. K.Annapurnamma, wife of Kalidas in the year 1954. Thereafter, he constructed two rows of buildings. Later after some time, the husband of the 1st revision petitioner purchased the property for Rs.1,600/- under a registered sale deed. Thus, the husband of the 1st revision petitioner became the owner, and after his death, the 1st revision petitioner became the owner of the property. The 1st revision petitioner is collecting rents from the respondents-tenants, the rent is stated to be Rs.100/- per month. The revision petitioners 2 and 3 were added as legal representatives, since the 1st revision petitioner died after disposal of the R.C.As. by the Appellate Authority. 3. It is the case of the revision petitioners that the respondents-tenants paid rents upto November, 1993. The 1st revision petitioner demanded the respondents-tenants to vacate the premises in November, 1993 for her personal occupation, then the respondents-tenants stopped paying rents and filed O.S.No.1314 of 1993 on the file of the IV Additional Junior Civil Judge, Visakhapatnam for permanent injunction restraining the revision petitioners from evicting the tenants except under due process of law. It is also stated that the 1st revision petitioner is having two daughters who are residing elsewhere and she required the premises for her accommodation and also for her daughters. Hence, sought for eviction of the respondents herein-tenants. 4. The respondents-tenants filed counter in all the rent control cases taking the same plea and denying that the 1st revision petitioner is the owner of the petition schedule property. They also denied that they took lease of the property from the husband of the 1st revision petitioner. Hence, sought for eviction of the respondents herein-tenants. 4. The respondents-tenants filed counter in all the rent control cases taking the same plea and denying that the 1st revision petitioner is the owner of the petition schedule property. They also denied that they took lease of the property from the husband of the 1st revision petitioner. It is also contended by the respondents that the property originally belongs to Kesanapalli Narasinga Rao, who is the absolute owner of the property, from whom, the father of respondent-tenants directly took lease of the property. They have also denied that the 1st revision petitioner’s husband purchased the property. The respondents-tenants also stated that the husband of the 1st revision petitioner used to collect the ground rent as agent of Kesanapalli Narasinga Rao from all the tenants under single receipt. It is also contended that the requirement of the premises for personal occupation of the revision petitioners is not bona fide. It is also stated by the respondents-tenants that the Rent Control Court has no jurisdiction with respect to vacant land since the respondents-tenants have taken the land from Kesanapalli Narasinga Rao. Hence, sought for dismissal of the eviction petitions. 5. In all the rent control cases, the case of the revision petitioners and the respondents-tenants is the same and the points framed by the Rent Controller are also same, the evidence is almost same in all the rent control cases. Basing on the pleadings, the Rent Controller framed the following points for consideration:- 1. Whether there is landlord and tenant relationship between the 1st revision petitioner and respondents-tenants. 2. Whether the denial of title of the 1st revision petitioner herein over the schedule property in the rent control cases by the respondents-tenants is bona fide. 6. Basing on the oral and documentary evidence, the Rent Controller allowed all eviction petitions. Against the same, the respondents-tenants filed appeals before the Appellate Authority. The Appellate Authority also framed the same points as framed by the Rent Controller and allowed the appeals filed by the respondents-tenants by setting aside the eviction order and held that the denial of title by the respondents-tenants is bona fide and also held that landlord and tenant relationship between the 1st revision petitioner and the respondents-tenants is not proved. Challenging the same, the revision petitioners filed the present revision petitions. Challenging the same, the revision petitioners filed the present revision petitions. Learned counsel for the revision petitioners, Smt. P.Anjana Devi Satyanarayana, contended that the respondents-tenants themselves admitted that they were paying rents to the husband of the 1st revision petitioner from 1955 onwards, and thereafter to 1st revision petitioner, as such, as per the definition of the ‘landlord’, a person receiving the rent is also the landlord under Section 2(vi) of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’). She also contended that the oral evidence of P.Ws.1 and 2 and Exs.A.1 to A.12, which includes special notices issued by Visakhapatnam Municipal Corporation, in the name of husband of the 1st revision petitioner Vanumu Sanyasi and the revision preferred by late Sanyasi and tax passbook, and all these documents establish that since the year 1955 Vanumu Sanyasi has paid taxes to the petition schedule property, which goes to show that the husband of the 1st revision petitioner is having title and after his death, 1st revision petitioner is the owner. She also contended that person receiving rent can maintain eviction petition, as he is landlord within the meaning of Section 2(vi) of the Act. She placed reliance on the judgments in V.Padmavattamma v. Pala Rathnam ( 2003(6) ALD 84 ) and Smt. Shanti Sharma and others v. Smt. Ved Prabha and others ( AIR 1987 SC 2028 ). She also contended that a person need not necessarily be the owner, in a vast majority of cases an owner will be a landlord but in many cases a person other than an owner may as well be a landlord, it may be that in a given case the landlord is also an owner but a landlord under the Act need not be the owner. She placed reliance on the judgment in K.D. Dewan v. Harbhajan S. Parihar ( AIR 2002 SC 67 ). She also contended that earlier CRPs filed are not decided on merits, hence the plea of res judicata is not applicable and the present CRPs are not hit by principles of res judicata as earlier CRPs are filed in the name of the 1st revision petitioner, inadvertently as she passed away at that time. She also contended that earlier CRPs filed are not decided on merits, hence the plea of res judicata is not applicable and the present CRPs are not hit by principles of res judicata as earlier CRPs are filed in the name of the 1st revision petitioner, inadvertently as she passed away at that time. She placed reliance on the judgments in Krishan Lal v. State of J & K (1994) 4 SCC 422 ) and Mothukuri Ranga Rao and another V. Royyala Laxminarayana and others ( 2008(4) ALT 96 ). She also contended that the Rent Controller cannot go into the title but only jural relationship can be examined by the Rent Controller. She also contended that the judgment relied on by the Appellate Authority in Vasant Rao Ankilkar v. Nalini Bai Joshi ( 1996(3) ALD 650 ), wherein it is held that the person receiving the rent cannot maintain eviction petition without the consent of the landlord and the same is not applicable since the 1st revision petitioner has filed the eviction petition on the ground that she is the landlord. She also contended that the judgment cited by the learned counsel for the respondents-tenants in S.Saraswathi v. Y.Laxminarayana ( 2004(6) ALD 161 )is in favour of the revision petitioners. She also contended that the case of the revision petitioners falls within the scope of revisional jurisdiction, since the interpretation of definition of landlord is the issue in the present cases. She also contended that the Appellate Authority misread the evidence and came to wrong conclusion by holding that dispute raised by respondents-tenants is bona fide. She also contended that this Court can allow the revision petitions within the scope of revisional jurisdiction as held by the Supreme Court in Harshavardhan Chokkani v. Bhupendra N. Patel and others (2002) 3 SCC 626 ). She also contended that this Court can allow the revision petitions within the scope of revisional jurisdiction as held by the Supreme Court in Harshavardhan Chokkani v. Bhupendra N. Patel and others (2002) 3 SCC 626 ). She also contended that tenants have claimed that they have taken the site from Kesanapalli Narasinga Rao on lease and constructed the premises, but the said Kesanapalli Narasinga Rao as 1st defendant filed written statement in O.S.No.1314 of 1993 filed by the respondents-tenants for injunction, stating that he does not know the respondents-tenants and that they have not taken the petition schedule property on lease from him, which is marked as Ex.A.11 in all the rent control cases, Kesanapalli Narasinga Rao has not supported the case of the respondents-tenants, which goes to show that the claim made by the respondents-tenants is false. She also contended that the respondents-tenants admitted that husband of the 1st revision petitioner as well as the 1st revision petitioner was receiving rents, but they failed to prove that as they are receiving rents on behalf of Kesanapalli Narasinga Rao, as such, they go to show that there is landlord and tenant relationship. She also contended that in view of Exs.A.1 to A.12, the title of the 1st revision petitioner is proved. She also contended that Ex.B.16 is copy of alleged assessment extract in respect of No.2216 in the name of K.Narasinga Rao, but the author of the said document is not examined, and as such, it cannot be given any credence. She also contended that assessment number from the tax passbook marked as Ex.A.9 is 2218, whereas in Ex.B.16, it shows as 2216 and the assessment number is not tallying. She also contended that if K.Narasinga Rao was the owner and he has not filed any rent control case or suit against the 1st revision petitioner during her lifetime or subsequent to her death. She further contended that the said K.Narasinga Rao has not filed any petition to implead him as a party in RCCs or RCAs or in these CRPs, but no prudent landlord would wait 30 years without taking steps for eviction of the tenant on the ground of willful default in payment of rents. She further contended that the said K.Narasinga Rao has not filed any petition to implead him as a party in RCCs or RCAs or in these CRPs, but no prudent landlord would wait 30 years without taking steps for eviction of the tenant on the ground of willful default in payment of rents. She also contended that as per the respondents-tenants, K.Narasinga Rao, from whom they have taken the lease, is said to be aged 40 to 45 years by the time evidence was adduced in RCC No.348 of 1995, since the respondents-tenants contended that they have taken on lease from K.Narasinga Rao in 1955 i.e., about 42 years back from the date of evidence, as such, the age of said K.Narasinga Rao would be 2 or 3 years by the time of taking the land on lease, which cannot be believed. She further contended that in the judgment cited by the learned counsel for the respondents-tenants in Rajendra Prasad v. Narsing Prasad and another ( 2005(4) ALD 45 ), wherein it is held that no roving enquiry can be made by the Rent Controller in regard to the title of premises, and the said decision is in favour of the revision petitioners. She further contended that the same was observed by the Rent Controller in the present case. She also contended that the decision relied on by the learned counsel for the respondents-tenants in M.Sarojini Devi (died) per L.Rs. v. Jugal Kishore Sanghic ( 2012(1) ALT 470 ) has no application to the facts of the present case, since the landlord in that case has collected rents on behalf of Dharmasala earlier and the tenant claimed title. She further contended that in the judgment cited by the learned counsel for the respondents-tenants in Avulapalle Mallikarjuna and others v. N.T.Chengalarayappa ( 2010(1) ALT 363 ), wherein the tenant never paid rents to the alleged landlord and the tenant claiming title and hence there is no landlord and tenant relationship in that case and the same decision is not applicable to the facts of the present case. 7. 7. On the other hand, the learned counsel for the respondents-tenants Sri G.Ramgopal in all the petitions contended that the respondents-tenants have taken the open site on lease from K.Narasinga Rao and constructed the petition schedule property, the husband of the 1st revision petitioner used to collect ground rent, and after his death, the 1st revision petitioner has been collecting rents on behalf of K.Narasinga Rao. He further contended that the revision petitioners failed to substantiate that there is landlord and tenant relationship between the revision petitioners and the respondents-tenants and no independent witness is examined and no document is filed to that effect. He also contended that the Rent Controller in para-16 of the order by referring to Exs.A.1 to A.12, observed that though none of the said documents establishes the title of revision petitioner or her husband to the suit schedule premises, but basing on the assessments relating to Municipal taxes and further referring to Ex.A.11 filed by K.Narasinga Rao in O.S.No.1314 of 1993, proceeded to pass order of eviction of the tenants by observing that denial of either the relationship of landlord and tenant or the ownership of schedule property is not bona fide. He also contended that earlier revision petitions were dismissed, as such, the present CRPs are hit by principles of res judicata. He also contended that when there is bona fide title dispute, the Rent Controller cannot pass order of the eviction and the person claiming title has to approach civil court. He also contended that the respondents only stated that the husband of the 1st revision petitioner used to collect rents on behalf of K.Narsinga Rao and without permission of the landlord, they cannot maintain eviction petition. He placed reliance on the judgment in Vasant Rao Ankilkar case (6 supra). He also contended that whenever the landlord establishes title and the tenant fails to prove the title pleaded by him, such a person cannot be construed to be a tenant under the landlord. He placed reliance on the judgment in Kedar Bhatia v. Lingarkar Panduranga Rao and others ( 1998(1) ALD 224 ). 8. He also contended that whenever the landlord establishes title and the tenant fails to prove the title pleaded by him, such a person cannot be construed to be a tenant under the landlord. He placed reliance on the judgment in Kedar Bhatia v. Lingarkar Panduranga Rao and others ( 1998(1) ALD 224 ). 8. He also contended that when the title of the 1st revision petitioner is denied, it is for the revision petitioners to prove the title, but in the present case, the Rent Controller himself observed that the revision petitioners could not prove the title, as such, denial of the title by the respondents become bona fide. He also relied on the judgment in K.P. Janakiram v. K.Suguna Bai ( 1995(2) ALT 61 ). He further contended that the jurisdiction of Rent Controller is limited to decide whether denial of title or claim made by tenant is bona fide, it cannot decide existence of title with finality. He placed reliance on the judgments in Rajendra Prasad case (9 supra), S.Saraswathi case (7 supra) and M.Sarojini Devi case (10 supra). He also contended 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. He further contended that unless tenancy is established, there is no basis to eviction order. He relied on the judgment in Avulapalle Mallikarjuna case (11 supra). Finally, he contended that scope of revisional jurisdiction is limited and this Court while exercising revisional jurisdiction under Section 22 of the Act cannot re-appreciate the evidence and the revisional jurisdiction under Section 22 of the Act cannot be equated with the powers of the appellate court. He relied on the judgment in Avulapalle Mallikarjuna case (11 supra). Finally, he contended that scope of revisional jurisdiction is limited and this Court while exercising revisional jurisdiction under Section 22 of the Act cannot re-appreciate the evidence and the revisional jurisdiction under Section 22 of the Act cannot be equated with the powers of the appellate court. He further contended that in examining the legality and propriety of the order under challenge, what is required to be seen by the High Court is whether it 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 where the interference drawn from the facts proved is such that no reasonable person could arrive at or the like, and it is only in such situations that interference by the High Court in revision in a finding of fact will be justified and mere possibility of a different view is no ground to interfere in exercise of revisional power. He relied on the judgments in Mohammed Abdul Rahman and others v. B.Manorama and another ( 2008 (4) ALD 586 ), Harshavardhan Chokkani case (8 supra) and N.Prabhakar Rao v. J.R. Ramesh Kumar alias Rameshji ( 2002(1) SCC 176 ). He also contended that the person receiving the rent can maintain eviction petition only with the permission of the landlord. He also relied on the judgment in Vasant Rao Ankilkar case (6 supra). 9. In view of the rival contentions, it is to be seen that whether the order of eviction passed by the Rent Controller is right, whether the Appellate Authority is justified in setting aside the order of eviction passed by the Rent Controller. 10. In this case, the Rent Controller found that denial of title by the respondents-tenant is not bona fide. The Rent Controller also observed that the 1st revision petitioner failed to establish her title. But basing on some documents regarding assessment of municipal taxes and also relying on Ex.A.11 written statement filed by K.Narasinga Rao in O.S.No.1314 of 1993, held that the tenants paid rents to the husband of the 1st revision petitioner and also to the revision petitioners after her death. But basing on some documents regarding assessment of municipal taxes and also relying on Ex.A.11 written statement filed by K.Narasinga Rao in O.S.No.1314 of 1993, held that the tenants paid rents to the husband of the 1st revision petitioner and also to the revision petitioners after her death. The Rent Controller has not gone into the aspect of willful default or bona fide requirement of the 1st revision petitioner, as it found the denial of ownership and denial of landlord and tenant relationship were not bona fide. On the other hand, the appellate authority after scrutinizing the evidence of P.Ws.1 & 2 and Exs.A.1 to A.12 came to the conclusion that the assessment numbers and house numbers are not tallying with the petition schedule property. As such, held that 1st revision petitioner could not prove the title or landlord and tenant relationship. The Appellate Authority also found that the revision petitioner could not maintain the eviction petition without the consent of the landlord. The Appellate Authority also has not believed the version of the 1st revision petitioner that she has proved that she is the owner of the property. The Appellate Authority found that since there is no registered sale deed in favour of the 1st revision petitioner by her husband, she failed to prove her title to the petition schedule property. The Appellate Authority found that Ex.B.16, which is true copy of the property tax demand register issued by the Municipal Corporation shows that the house bearing D.No.26-14-4 with old Assessment No.8034 stands in the name of Kesanapalli Narasinga Rao. The Appellate Authority basing on Exs.A.11 and B.16, held that denial of title by the respondents-tenants is bona fide. The Appellate Authority also relied on the evidence of P.W.2 and came to the conclusion that she was unable to show anything about the affairs of the petition schedule property. The Appellate Authority also found that non-failure of respondents to prove their title cannot improve the case of the revision petitioners, since the 1st revision petitioner has to independently establish the title to the suit schedule property. 11. In K.D. Dewan (3 supra), it is held that a person must be a landlord within the meaning of the terms in Section 2(c) his being owner of the premises is neither a pre-requisite nor a relevant factor. 11. In K.D. Dewan (3 supra), it is held that a person must be a landlord within the meaning of the terms in Section 2(c) his being owner of the premises is neither a pre-requisite nor a relevant factor. In V.Padmavattamma (1 supra), it is held that a person who is receiving rent or who is entitled to receive rent of a building, whether on his own account, or on behalf of another 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 to let out to a tenant is a landlord. 12. In Smt. Shanti Sharma and others (1 supra), it is held that though a person is not the owner of the land, but the person who constructed the building structure thereon is owner, as such he could maintain eviction petition. It is further held that that a person who is receiving the rents is included in the definition of landlord. In Krishan Lal (4 supra), it is held that when the matter is not decided on merits, principle of res judicata has no application. 13. In Mothukuri Ranga Rao and another (5 supra), it is held that principles of res judicata applies only when the earlier matter has been heard and finally disposed of by such Court, and in that case it is also held that mere dismissal of earlier petition for default, does not operate as res judicata in subsequent proceedings. 14. In the present case, the Appellate Authority found that the husband of the 1st revision petitioner and the 1st revision petitioner were collecting rent, but since they are receiving rent on behalf of K.Narasinga Rao and the eviction petition is not maintainable without the permission of the landlord as laid down in the decision inVasant Rao Ankilkar (6 supra).In Kedar Bhatia (12 supra), it is held that just because tenant failed to prove his title and the landlord establishes his title, such a person shall not be construed to be a tenant under the landlord. In K.P. Janakiram (13 supra), it is held that unless the tenant and landlord relationship is established between the landlord and tenant, eviction petition cannot be maintained. 15. In K.P. Janakiram (13 supra), it is held that unless the tenant and landlord relationship is established between the landlord and tenant, eviction petition cannot be maintained. 15. In Rajendra Prasad (9 supra), it is held that the jurisdiction of Rent Controller is limited to decide whether denial or claim by the tenant is bona fide or not and it cannot decide existence of title with finality. 16. In M.Sarojini Devi (10 supra), it is held that the Rent Controller need not make a roving enquiry with regard to the title of the landlord, however when the title of the landlord is disputed, the Rent Controller has to decide whether dispute of title is bona fide or not. In Avulapalle Mallikarjuna case (11 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, and 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 and the consent can be expressed orally, or in writing, and until the tenancy, that too, of a particular nature was not established by the landlord, there was no basis for the trial Court to order eviction of the tenant. In Mohammed Abdul Rahman (14 supra), it is held in para-5 as follows: "It is now well settled that jurisdiction of High Court under Section 22 of the Act is revisional jurisdiction. Though the power is a little wider than revisional jurisdiction, it is not equal to appellate jurisdiction. A limited scrutiny is to see that order passed by appellate authority is not vitiated by illegality, irregularity or impropriety. Mere possibility of a different conclusion in background facts does not enable High Court to reverse finding of appellate authority." 17. In Harshavardhan Chokkani case (8 supra), it is held in para-7 as follows: "There can be no controversy about the position that the power of the High Court under Section 22 of the Act is wider than the power under Section 115 CPC. Nonetheless, the High Court is exercising the revisional power, which in its very nature is a truncated power. The width of the powers of the revisional court cannot be equated with the powers of the appellate court. Nonetheless, the High Court is exercising the revisional power, which in its very nature is a truncated power. The width of the powers of the revisional court cannot be equated with the powers of the appellate court. In examining the legality and the propriety of the order under challenge, what is required to be seen by the High Court is whether it 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 where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of the aforementioned reasons exist in this case to justify interference by the High Court." 18. In view of the above discussion and the judgments relied on by both sides, it is found that the Appellate Authority as well as Rent Control Court held that the 1st revision petitioner could not prove her title, but the Rent Controller relied on some of the municipal assessments, held that the 1st revision petitioner has proved her case and ordered eviction. Whereas, the Appellate Authority found that the municipal assessments are not tallying with the municipal numbers of suit schedule premises and came to the conclusion that the 1st revision petitioner has not established her title to the suit schedule property. The Appellate Authority also relied on Ex.A.11 and also Ex.B.16, and held that denial of title by respondents is bona fide. 19. By relying on the evidence, the Appellate Court, which is final fact finding Court, held that the denial of title and landlord and tenant relationship by the respondents-tenants to be bona fide one. I cannot re-appreciate the same within the revisional jurisdiction under Section 22 of the Act in view of the judgments discussed above. More so, the Rent Control Court cannot decide the title, only it can find out whether the denial is bona fide or not. I cannot re-appreciate the same within the revisional jurisdiction under Section 22 of the Act in view of the judgments discussed above. More so, the Rent Control Court cannot decide the title, only it can find out whether the denial is bona fide or not. It is not as if the 1st revision petitioner is not without any remedy to evict the respondents, but he has to approach the civil court and establish his title for evicting the respondents-tenants. The jurisdiction of authorities under the Rent Controller is limited to find out whether the denial of title of landlord by the respondents-tenants is bona fide or not, they cannot make a roving enquiry of the title aspect. In view of the above facts and circumstances, I am of the opinion that there is no error committed by the Appellate Authority in allowing the appeals of the respondents-tenants. Accordingly, all the civil revision petitions are dismissed. There shall be no order as to costs. 20. As a sequel, miscellaneous petitions, if any pending in all the revisions, shall stand disposed of.