Kedar Bhatia vs Lingarkar Panduranga Rao and Others

This Civil Revision petition u/s 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 is filed by the tenant. He is aggrieved by an order passed by the appellate authority dismissing Rent Appeal No. 127 of 1989 preferred by him and confirming the order of eviction granted by the learned Principal Rent Controller, SecunderabadinRC.No.303 of 1983.

The respondents herein filed eviction petition against the petitioner u/s 10(3)(a)(i)(b) and Section 10(2)(i) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, for short ''the Act'' on the ground of requirement of additional accommodation and wilful default. The respondents are the land-lords of the building bearing No.4200 and 4201 situated at Secunderabad which correspond to New Nos.7-1-589, 590, 591, 415 and 416, for short ''the petitioner premises''. The building consists of ground floor and first floor. It is their case that originally one Jadavji Toprani was the tenant of the said building. He died in the year 1974 leaving behind him his only daughter Nainavanthi Toprani. The petitioner herein married the said Nainavanthi Toprani and residing in the said building. The petitioner-landlords have requested Nainavanthi Toprani to vacate the petition schedule building, since it is required for additional accommodation and for their personal business. Nainavanthi Toprani died in the year 1983. The petitioner herein is her legal heir. It is their case that they have requested the petitioner herein to vacate the petition schedule premises. A notice was also issued to the petitioner herein to vacate the building. The petitioner herein instead of vacating the premises got issued a reply notice on 20-10-1983 claiming ownership in the petition schedule building premises, the petitioner herein failed to pay the rents after July, 1983 and thereby committed wilful default in payment of rent. The eviction of the petitioner herein is sought by the respondent-landlords on both the grounds.

The petitioner herein filed counter stating that the respondent-landlords never claimed title in respect of the petition schedule premises for the last 37 years. Jadavji Toprani was not a tenant. Topranies lived in the said building in their own right without paying any rent to any one for over 37 years. The plea of bonafide requirement is not a bonafide one. The petitioner never paid any rent whatsoever to the respondents-landlords even for the month of July, 1983. His wife Nainavanthi Toprani died in July, 1983 and he was observing mourning period for 30 days and during that period, the respondent-landlords obtained his signatures on some paper and it must be deemed to be invalid and ineffective, because he was kept in dark with regard to the nature of the document. It is his case that there is no relationship of landlord and tenant. In the additional counter, the petitioner look the plea that the respondents are occupying another non-residential building bearing No.7-1-589. The petition is not maintainable for a composite lease of residential and non-residential building. The petition schedule building was purchased by the ancestors of Nainavanthi Toprani by name Purushotham Das in 1900 and he and his legal representatives occupied the same in their own right as owners. The son of Purushotham Das is Madhavji Toprani. He and the father of the petitioner by name Babu Bai were partners in the business. Half of the petition schedule building was given to Babu Bai in 1930. In 1972 Jadhavji executed a will in favour of his daughter Nainavanthi Toprani bequeathing half of the portion of the building and appointed the petitioner as advisor to Nainavanthi Toprani and declared the petitioner as the owner of the remaining half portion of the building. In the additional counter, it is further stated and the same is required to be stated in his own words'' ''The respondents developed relationship with Nainavanthi Toprani as wife and got two children through her." In the additional counter filed by him in Para 14, it is stated that "the respondent is not the legal heir of the deceased Nainavanthi Toprani as their marriage is not legal. The possession of D.No.7-1-590, 7-1-591, 7-1-415, 7-1-416 and 7-1-589 except a mulgi by the respondent is not in the capacity of the legal heir of late Nainavanthi Toprani, but in his own personal capacity."

It is also the case of the petitioner that his son filed O.S.No.475 of 1989 in Civil Court, Secunderabad for partition of the petition schedule building and impleaded the respondents-landlords in the suit and the suit is pending.

The respondent-landlords filed a rejoinder stating that the denial of title of the petition schedule premises by the petitioner herein is not bonafide and hence the petitioner is liable to be evicted summarily. All the averments made in the additional counter filed by the petitioner herein were denied by the respondents-landlords.

The learned Rent Controller framed two points, namely, as to whether the landlords bona fidely require the premises for their additional accommodation and as to whether the respondents have committed wilful default in payment of rents from October, 1983.

PW1 the deceased first petitioner was examined and Ex.Pl legal notice dated 21 -8-1983 and Ex. P2 reply notice dated 10-10-1983 were marked. The learned Rent Controller took pain to record the conduct of the petitioner herein. It is observed by the learned Rent Controller that 16 interlocutory applications were filed with an endeavour to drag on the matter for years together without enquiry into the main case. The petitioner herein was never ready with the enquiry in the proceedings at any stage. The learned Rent Controller further recorded that the petitioner herein has gone to the extent of throwing threats at the Bench by way of baseless transfer petitions and thereby has gone to the extent of throwing any sort of mud against the Court Inspite of giving innumerable opportunities, the petitioner herein did not lead any evidence whatsoever. Under those circumstances, the learned Rent Controller on the basis of the material available on record, passed order of eviction upholding both the pleas of the respondents-landlords.

Thereafter the petitioner herein preferred Rent Appeal No. 127 of 1989 on the file of the Additional Chief Judge, City Small Causes Court at Hyderabad. The appellate Court with a view to give an opportunity to both the parties to lead further evidence, directed the Principal Rent Controller to record evidence both oral and documentary and transmit the record to the appellate Court. It is at that stage, PW2 is examined and Exs.P3 to P67 were marked on behalf of the respondents-landlords. RWs.1 and 2 were examined on behalf of the petitioner herein and Exs.F1 to R48 were marked.

Upon the pleadings, the appellate Court framed the following points for consideration:

Whether there is relationship of landlord and tenant between the appellant and the respondents?

Whether the denial of title of the landlord by the appellate is bonafide ?

Whether there is semblance of title in favour of the appellant ?

Whether there is cloud over the title of the landlord?

The Appellate Court came to the conclusion that the deceased first respondent is the landlord and the title in respect of the petition schedule premises is established. The Appellate Court further came to the conclusion that Topranies were the tenants in the petition schedule premises. The petitioner herein was residing in the said premises as the husband of Nainavanlhi Toprani and infact paid the rent of the month of July, 1983 under Ex.P31. The Appellate Court further held that there is a relationship of tenant and landlord between the petitioner and the respondents. The petitioner herein had committed wilful default

The Appellate Court further held that the denial of title of the landlord by the petitioner herein is not bonafide and there is no semblance of title in favour of the petitioner. For the aforesaid reasons, the Appellate Court concurred with the order of the Principal Rent Controller and ordered eviction of the petitioner from the suit premises.

The learned Counsel for the petitioner Sri T. Veerabhadrayya attacks the order of the Principal Rent Controller as well as the Appellate Court and submits that the orders suffer from incurable infirmity. The learned Counsel for the petitioner submits that the Appellate Court committed serious irregularity in appreciating the evidence on record. The Appellate Court ought to have appreciated both the documentary and oral evidence, as the Courts of first instance inasmuch as the entire evidence came on record only after preferring the appeal and under those circumstances each and every aspect of the matter ought to have been taken into consideration by the Appellate Court as if the Court is appreciating the evidence for the first time. It is pointedly urged by the learned Counsel for the petitioner that the evidence on record does not establish the jural relationship of the landlord and the tenant between the parties and in the absence of the relationship of landlord and tenant, no eviction could be ordered by the Rent Controller. Neither the Rent Controller nor the Appellate Court would have any jurisdiction whatsoever to consider the application of the respondent-landlord.

There cannot be any doubt whatsoever with the proposition of law advanced by the learned Counsel for the petitioner that the Rent Controller would have no jurisdiction to entertain any eviction petition unless it is a dispute between the landlord and the tenant. The jural relationship of landlord and tenant is the sine qua non for proceeding further in the matter. It is true that whenever there is such a denial, the same is required to be adjudicated by the Rent Controller. In a given case, the tenant may assert his ownership in respect of the premises in question and even failure to establish his case about the ownership may not automatically result in eviction unless it is further established that there is a jural relationship of landlord and tenant. This Court in K.P. Janakiram Vs. K. Suguna Bai, held that "it is not law that whenever the landlord establishes title and the tenant fails to prove the title pleaded by him, such a person shall be construed to be a tenant under the landlord. When the alleged tenant failed to prove his own title, it does not mean that he was a tenant under the owner. His possession could be in any other capacity like a mortgagee or a licensee or even a person in adverse possession."

In Mumtaz Ali Khan and Another Vs. Rupender Pershad and Another, , it is held by this Court that there is a distinction between denial of jural relationship of landlord and tenant and denial of title of the landlord. It is only when a tenant denies the title of the landlord and such denial is not bonafide that he becomes liable to be evicted under clause (vi) of sub-section (2) of Section 10 of the Act but not when he denies the relationship of landlord and tenant "..... But mere denial of title of the landlord is not enough, it must also be shown that such denial is not bonafide."

But here is the case where the Appellate Court came to the conclusion that there is jural relationship of the landlord and the tenant between the petitioner and the respondents. The denial of title of petition schedule premises by the petitioner herein is not a bonafide one. The Appellate Court was not content by merely recording the finding that the petitioner herein failed to establish his title to the petition schedule premises. The eviction is not ordered by the Appellate Court on the ground that the petitioner herein had failed to establish his title. On the other hand, the Appellate Court came to the conclusion that the respondents herein have established their right, title and interest in respect of the petition schedule premises and the denial of their title by the petitioner herein is not a bonafide one and the respondents have successfully establish the jural relationship of landlord and the tenant. The Appellate Court considered each and every document available on record and properly appreciated the oral evidence. Ex.P3 is the sale deed dated 23-9-1940 showing that the deceased first respondent purchased the petition schedule premises in the year 1940 when he was a minor. The document is more than fifty years old and that too a registered document. Identity of the premises is not in doubt. Ex.P6 is a communication dated 2-12-1958 from the Commissioner, Municipal Corporation, Secunderabad addressed to the deceased first respondent landlord in respect of the petition schedule premises directing him to repair the walls of the building. Ex.P8 is another letter dated 23-7-1957 from the same office addressed to the first respondent requiring him to comply with certain directions. Likewise Ex.P9 dated 26-7-1957 and Ex.P10 is the letter dated 13-7-1957 addressed by the Municipal Corporation, Secunderabad to the first respondent landlord. Ex.P16 is the notice dated 10-4-1968 from the Municipal Corporation of Hyderabad demanding property tax and Ex.P17 and P18 are the properly tax receipts evidencing the tax paid by the first respondent. Ex.P19 is the property tax enhancement notice. Ex.P20 is the objection of the first respondent landlord. Ex.P21 to P24 are the property tax receipts for the petition schedule building. Ex.P25 is the land assessment tax, Ex.P26 is the endorsement from the Municipal Corporation acknowledging the complaint of the first respondent landlord. Ex.P28 is the property tax receipt. Ex.P29 is the demand notice for the non-agricultural land assessment. Ex,P30 is the demand notice from the Municipal Corporation of Secunderabad. It is thus clear that Exs.P12 to P43 are the property tax receipts and Exs.P44 is the land assessment tax notice, Ex.P47 to P63 are the properly tax receipts evidencing payment of property tax by the first respondent landlord. All these documents together with Ex.P3 registered sale deed would lead to an irresistable conclusion that the respondents are the landlords of the petition schedule premises.

It is not as if the Appellate Court failed to consider the documentary evidence made available by the petitioner herein. The Appellate Court rightly noticed that none of the documents produced by the petitioner herein would establish any semblance of right, title and interest of either himself or Topranies in the petition schedule premises. Exs.RS to RIO are the receipts issued between 1934 to 1943 in respect of a trade licence. Ex.R14 is the water supply meter reading book pertaining to the building No.4200. Ex.R12, R14, R16 and R18 are water tax demand notices. Exs.R13, R15, R17 are receipts. They do not establish the title of the petitioner in the petition schedule building. Ex.R19 and R20 are the electricity supply card and the receipt and even they would show that J.M. Toprani was living in the petition schedule building about which there is no dispute. J.M. Toprani died on 10-2-1946 and Ex.R22 is the death certificate. Likewise the other documents filed by the respondents herein have been taken into consideration. None of them establish even the semblance of title. The petitioner herein however, sought to place reliance upon Ex.R30 purporting it to be a Will deed executed by J. Toprani on 9-6-1972. The lower Appellate Court rightly observed that even if the Will is true, the same would not establish any title of J. Toprani. Ex.R31 is the death certificate of J. Toprani and he died on 21-5-1974. Ex.R33 to R35 are telephone bills. Ex,R36 and R37 are photostat copies of sales tax certificates of registration in favour of M. Toprani. The other documents which are referred to in the order of the lower Appellate Court need not be referred herein once again. In my considered opinion, none of these documents lend any support to the plea advanced by the petitioner tenant herein that he has become the owner of the petition schedule premises. Ofcourse, this aspect of the matter about the petitioner''s ownership is not seriously urged before me by the learned Counsel for the petitioner. For all the aforesaid reasons, I have no hesitation to hold that the respondents-landlord have established title in respect of the petition schedule premises.

But the next question would be as to whether the petitioner herein is the tenant ?

In this regard, the Appellate Court rightly relied upon Ex.P40 copy of the agreement dated 27-10-1964 executed between the deceased first respondent landlord and J. Toprani, It would show that J. Toprani is the tenant of the petition schedule building. PW2 is one of the attestors of the said agreement. According to the said agreement, PW1 is in possession of a portion of the petition schedule building for running his shop. Ex.P1 legal notice is in conformity with Ex.P4 and that is why the respondents-landlords have demanded the adjacent mulgi,, for their Radio and Electric business and the same would show that the deceased first respondent was doing business in a part of the petition schedule building and they have required the remaining portion of the building for an additional accommodation and personal requirement. Another important aspect that would throw light on the question of jural relationship of landlord and tenant between the parties is Ex.P5 letter dated 6-6-1974 addressed to the deceased first Respondent landlord by Nainavanthi Toprani stating that she would like to continue as the tenant and pay rents for the petition schedule building. The petitioner herein has gone to the extent of disputing the signature of Nainavanthi Toprani on Ex,P5 and it his request Ex.P5 was sent to handwriting expert alongwith the admitted signatures of Nainavanthi Toprani and the expert opined that the signature on Ex.P5 is the same as that of the admitted signatures of Nainavanthi Toprani. The petitioner, thereafter, kept quiet and no efforts were taken to examine the expert. Yet another circumstance that Exs.Pll to P14 are the bills issued by the tenant M. Toprani and son in favour of the deceased first respondent landlord showing that the rent was being adjusted towards the amount due to Topranies by the first respondent landlord towards the purchase of articles. Ex.P31 is office copy of rental receipt executed by the petitioner himself which shows that the petitioner herein paid rent for the month of July, 1983. His explanation that the respondents-landlords obtained signatures on a blank paper is not at all convincing. Exs.P31 and P5 executed by Nainavanthi Toprani is required to be read together. All these documents and the oral evidence of PWs. 1 and 2 clinchingly establish the jural relationship of landlord and tenant between the petitioner and the respondents.

There is absolutely no basis and no justification whatsoever on the part of the petitioner to have denied the title of the respondents in respect of the petition schedule premises. It is not a bona fide one. The evidence of the petitioner herein does not inspire any confidence whatsoever. He has been making all sorts of efforts to protract the litigation and without any just and bonafide reason had set up his own title and denying the title of the respondent-landlords in respect of the petition schedule premises. The question of reference to the Civil Court for adjudication of disputes relating to the title would arise only if the Rent Controller or the Appellate Court, as the case may be, comes to the conclusion that the denial of the title by a tenant is a bonafide one. In fact there is no evidence whatsoever led by the petitioner herein on the said question. There is no cloud whatsoever on the right, title and interest of the respondents-landlords in respect of the petition schedule premises.

The petitioner herein has gone to the extent of stating that he is not the legal heir of deceased Nainavanthi Toprani. The petitioner does not in categorical terms admits that Nainavanthi Toprani was his wife, but says that he was living with her as husband and wife and got two children through her. He thought such a plea would be convenient and would enable him to blow hot and cold. Such pleas would only expose the conduct of the petitioner herein who went all out to deny the title of the respondents-landlords in respect of the petition schedule premises. As held by the Appellate Court that the petitioner had no other capacity to reside in the petition schedule premises except as the husband of Nainavanthi Toprani, Viewed from any angle, the petitioner is the tenant within the meaning of the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960.

The petitioner herein admittedly did not pay the rent from July, 1983 till the filing of Ihe eviction petition. Since I have already held that he is the tenant, his failure to pay the rent till 1983 would undoubtedly constitute a wilful default in payment of rent to the respondent Even on this ground, he is liable for eviction

Admittedly, the deceased first respondent landlord was in occupation of a portion of the building and running business in it. The petition schedule premises was leased for both residential and non-residential purpose-It is in evidence that the landlords require-the building for additional accommodation for his business purpose as well as residential purpose for his family. The finding recorded by the Appellate Court in this regard is upheld and I accordingly hold that the petitioner is liable to be evicted from the premises, as the requirement of the respondents-landlords is a bonafide for their own occupation.

I accordingly hold (a) the petitioner herein had committed wilful default in payment of rent from July, 1983 onwards and thereby committed wilful default, (b) the requirement of the respondents-landlords the petition schedule premises for their personal occupation for the purpose of residential and non-residential use is a bona fide one, (c) the petitioner herein without any bonafide reason denied the title of the respondents-landlords in respect of the petition schedule premises and (d) undoubtedly, the respondents-landlords have established the jural relationship of landlord and tenant between the petitioner and the respondents.

For all the aforesaid reasons, the orders under revision are upheld and all the findings recorded are confirmed. The petitioner is liable to be evicted from the petition schedule premises. The Civil Revision Petition is dismissed with costs. Four months time from today is granted to the petitioner/tenant for vacating the petition schedule premises.