Khair Mohd. Khan vs S. Eramani and Another

This appeal is directed against flie Judgment and Decree dated 29-9-1981 rendered in O.S.No.596 of 1979 on the file of the II Additional Judge, City Civil Court, Hyderabad.

The parties are referred to as arrayed in the Suit. Defendant No. 1, who had suffered the decree for declaration and consequential injunction, has preferred this appeal.

The subject-matter of the suit is a house, which was constructed by hitherto the City Improvement Board, which was succeeded by the present Andhra Pradesh Housing Board. Defendant No.2 was the allottee of the suit house. The allotment was by way of hire purchase agreement and then on payment of the full instalments, the house was to be registered in his name. In fact, that is the normal scheme of the A.P. Housing Board or even the former City Improvement Board. Defendant No.2 had styled himself as the owner of the suit house and sold the same to the plaintiff through a registered sale deed dated 30-8-1968 for a valuable consideration. Later on, the plaintiff had come to know that the 2nd defendant did not acquire title from the Housing Board and the reason was non-payment of the amount of Rs.2,500/- which was due and payable by the 2nd defendant to the Housing Board. The plaintiff had then paid the said amount an got a registered sale deed executed from A.P. Housing Board conveying the title of the suit house in favour of the 2nd defendant. She has constructed 2 more rooms to the then existing structure and rented out to one Ibraheem. When the said Ibraheem had vacated, then the same was rented-out to the Syed Hussain, who had also vacated in the month of July, 1977. The suit house having been constructed before 26-8-1957, was covered by the provisions of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as ''the Rent Control Act''). When it came to the notice of the Accommodation Controller, he had exercised his power u/s 3 of the Rent Control Act and had allotted the suit house to one Ameer Khan, who had been paying the rents to the plaintiff. During April, 1979 the plaintiff had applied to the Accommodation Controller to release the house from the occupation of Aimer Khan on the plea of her requirement for personal occupation and pursuant to the same, the Accommodation Controller had issued notice to the said Ameer Khan to vacate the house. But on 26-4-1979, the plaintiff had received a Memo from the Accommodation Controller directing her to produce the necessary documents to prove the ownership of the building and this was because of the intervention of the 1st defendant in projecting himself as the owner of the suit house and to release the suit house to him with a specific plea not to release the house to the plaintiff on the ground that the latter had no title. Ultimately, the Accommodation Controller issued a Memo dated 4-6-1979 directing the plaintiff to establish her title in a Civil Court. The result was the suit under this appeal.

The plea of the plaintiff was that there was no authority for the Accommodation Controller to enter a dispute like this, that she had acquired title to the property by virtue of Ex.Al and even though the 2nd defendant was not having perfect title as on that data, he was the ostensible owner, that by virtue of Ex.A3, though executed later in the year 1977, he became the absolute owner and as she had opted to retain the title, the title vested in her perfectly and relating back to Ex.A1, that there was no necessity for any fresh sale deed after Ex.A3, that the 2nd defendant had no title to convey the suit house to the plaintiff under Ex.Bl, that Ex.Bl is void and inoperative and that she should be declared as owner with the grant of consequential injunction.

The 2nd defendant remained ex parte and was set ex parte. Defendant No.l had contested the suit and pleaded contra disputing the purchase of the suit house by the plaintiff from the 2nd defendant and instead settingup the claim that he himself had obtained the registered sale deed dated 19-3-1979 from the 2nd defendant. His plea is that when the 2nd defendant himself became the owner of the suit house through registered sale deed dated 17-7-1977, the question of obtaining the sale deed by the plaintiff in the year 1968 did not arise and the same has to be held as false. Alternatively, he had pleaded that the earlier sale deed of 1968 is illegal and is not binding. He had also taken pleas that the suit is bad for non-joinder of necessary parties and that the suit is also barred by time. While the plaintiff alleged collusion between Ameer Khan and Defendants 1 and 2, the 1st defendant had alleged collusion on the part of the plaintiff through her husband and Ameer Khan.

On the basis of the said contentions, the following triable issues were framed :

(1) Whether the registered sale deed dated 30-8-1968 in favour of the plaintiff is true, valid and binding ?

(2) Whether the plaintiff is entitled to file the suit ?

(3) Whether the plaintiff is entitled for the declaration and injunction as prayed for?

(4) To what relief?

The following 2 additional issues were also framed thereafter.

(1) Whether the suit is bad for non-joinder of necessary parties ?

(2) Whether the suit is barred by time ?

Before the Court below, on behalf of the plaintiff PWs. 1 and 2 were examined and Exs.A1 to A15 were marked. For the defendants, DWs. 1 to 4 were examined and Exs.Bl to B7 were marked. Insofar as the additional issues are concerned, there was neither evidence nor arguments on the part of the 1st defendant. As such, they were held in plaintiff''s favour. Issue No.4 being general, issues 1 to 3 were dealt with together and after appreciation of evidence, both oral and documentary, the said issues were answered in favour of the plaintiff and consequently, the suit was decreed granting the relief of declaration and injunction. Hence, this appeal.

The plaintiff examined herself as PW1 and stated about obtaining of the registered sale deed under Ex.Al from the 2nd defendant, taking possession of the same and residing therein and later letting out to the tenants. She has also stated about the 2nd defendant handing over the documents of title relating to the suit house and that her husband dealt with the transactions, be it sale or lease, on her behalf.

PW2 is the son of PW1, who corroborates PW1 with regard to execution of Ex.Al, self-possession and then letting-out to tenants. He also stated with regard to the payment of consideration amount to the 2nd defendant and how they were made to pay the amounts, which remained unpaid by the 2nd defendant due and payable to the A.P. Housing Board and then obtaining the registered sale deed dated 28-6-1977 in favour of the 2nd defendant and the 2nd defendant handing over the said document to them and the same was marked as Ex.A3. Exs.A2 and A4 to A15 were also marked through him. Ex.A2 is the receipt for the consideration amount paid to the 2nd defendant. Exs.A4 and A5 are the receipts issued by Municipal Corporation of Hyderabad for the house tax (property tax) paid. While Ex.A4 is for the period from 1-4-1965 to 31-3-1970. Rx.A5 is for the period from 1-4-1974 to 31-3-1975. From Ex.A4, it is evident that the 2nd defendant did not even pay the arrears of house tax and the same were paid by the plaintiff. It is pertinent to mention that it was the 1st defendant, who was liable to pay the house tax for the period upto Ex.Al i.e. 30-8-1968; but that obligation having not been performed by him, in her interest, the plaintiff had paid the same. Similar is the situation with regard to the additional payment made to A.P. Housing Board and obtaining Ex.A3 sale deed. Exs.A6 and A7 are the copies of the applications filed by the plaintiff''s husband to the Accommodation Controller to release the suit house for personal occupation by evicting Mr. M. Ameer Khan, the tenant. Ex.A8, dated 30-8-1978 is the Memo issued by the Accommodation Controller directing Mr. M. Ameer Khan to vacate the suit house and handover possession thereof to the landlord by granting time till 15-9-1978. Ex.A9, dated 21-11-1978 is another Memo issued to vacate the suit house forthwith or otherwise to face the forcible eviction and lastly time was granted to him to vacate the suit house by 30-4-1979 under Ex.A10, dated 6-4-1979. The 1st defendant then enters the field projecting himself as the owner of the suit house and seeking delivery of possession to him. Then the Accommodation Controller embarks upon the enquiry by issuing Ex.A11 Memo dated 26-4-1979 directing the plaintiffs husband and the 1st defendant to produce documentary evidence before him by 28-4-1979 and similar is the Memo dated 1-5-1979 (Ex.A12). Ex.A13 is the Memo dated 4-6-1979 issued by the Accommodation Controller taking a decision that as a bona fide doubt has arisen regarding the ownership of the suit house and as to the person, who is entitled to receive the rent, the parties should get the disputes settled in a competent Court of law and Mr. M. Ameer Khan was directed to remit the rent to the credit of the Government. Ex.A14 is another Memo dated 7-6-1979 issued by the Accommodation Controller reiterating the same facts and asking the parties to approach the Accommodation Controller for payment of rent due from May, 1979 onwards and for release of suit house after the case is finally settled by the Civil Court. Ex.A15 is another Memo dated 22-10-1980 issued by the Accommodation Controller allotting the suit house to one Mohd. Sayeed Khan, Attender in the General Administration Department at the rent of Rs. 100/- per month consequent to the death of Mr. M. Ameer Khan, who was the allottee and tenant staying in the suit house.

Even though no scribe or witnesses to Ex.Al have been examined, the same is proved otherwise and is amply corroborated. PW1 is a party to Ex.Al and PW2 her son, corroborates her statement. Under Ex.A2, amount was paid to the 2nd defendant on behalf of PW1 and that is also corroborated by PW2. Exs.Al and A2 are further corroborated by production of Ex.A3 from the custody of PW1 marked through her son PW2, which is the original registered sale deed executed by A.P. Housing Board in favour of the 2nd defendant. The fact that the 2nd defendant got the title under Ex.A3 is not disputed by the 1st defendant and is rather admitted. In fact, Ex.A3 is a very crucial document, which shows that it was PW1, who was instrumental in paying the arrears and getting Ex.A3 to perfect her title, as otherwise, there was deficiency in her title, as without Ex.A3, Ex.A1 is of no avail.

The explanation of the 1st defendant with regard to the custody of Ex.A3 with PW1, that it was lost in theft etc. is unbelievable. The exercise of rights of ownership is well established by PW1 by paying the house tax under Exs.A4 and A5 and even paying the arrears anterior to Ex.Al to safeguard her rights over the suit house. Exs.A4 and A5 are the public documents and cannot be doubted. Exs.A6 and A7 are the applications filed by the plaintiff''s husband for release of the suit house for personal occupation by evicting the tenant Mr. M. Ameer Khan and filing of the same is corroborated by Exs.A8 to A10. The Accommodation Controller having applied the Rent Control Act of 1960 and taking possession of the suit house from the plaintiff''s husband and allotting the same to the tenant and the plaintiff through her husband having received the rents and the Accommodation Controller having responded to the requests of the plaintiff''s husband for releasing the suit house for personal occupation and directing Mr. M. Ameer Khan, to vacate the suit house and hand over possession of the same to the plaintiff''s husband, was not empowered to turn back and entertain the dispute regarding the ownership of the plaintiff, at the instance of the 1st defendant and calling upon the plaintiff to file a suit and establish her title. There was no such jurisdiction vested in him to embark upon such enquiry, as, he had taken the possession of the house from the plaintiff''s husband by applying the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. After the tenant vacates, the possession should be handed over to the person from whom the same was taken and that was what was intended to be done by the Accommodation Controller under Exs.A8 to A10, but (he same was resiled under Exs.Al 1 to A15 and there is a rank collusion between the 1st defendant and the tenant - Ameer Khan - who was aggrieved by the eviction order under Exs.A8 to A10 and Exs.A11 to A15 are the result of either misunderstanding of the law or passing the orders in a routine and casual way and more so because Mr. Ameer Khan was the Attender in the same Department, i.e. Accommodation wing of General Administration Department. In fact, there is a judgment delivered by me in J. Mallik v. Accommodation Controller 1995 (1) LS 416 that once the Accommodation Controller takes the premises and allots by lease to a tenant and when the landlord makes application for release of the building, the Accommodation Controller cannot entertain a claim by third party as owner and he is bound to release the premises to the lessor. It was also held that whatever may be the dispute raised by the third party, when a premise is vacated by the allottee of the Accommodation Controller and if the said premises is sought to be redelivered, the redelivery could only be in favour of the landlord and not to anybody else. On the said premise, it can be said that there is no jurisdiction for the Accommodation Controller to ask the respondent herein to establish her title in a Civil Court.

As against the plaintiff''s evidence, the defendants had adduced the oral evidence of DWs. 1 to 4 and documentary evidence of Exs.B1 to B7 : the 1st defendant had examined himself as DW1 and stated that he had purchased the suit house from the 2nd defendant under Ex.Bl, which is a registered sale deed dated 19-3-1979. He states that possession was delivered to him, but there is no evidence to that effect. In fact, he admits that one Anwar was in possession of the suit house by virtue of allotment by the Accommodation Controller. His explanation for not being in custody of Ex.A3 is not believable as already mentioned supra. That is why, he has taken certified copy of Ex.A3 and the same was marked as Ex.B2. Though he states that non-encumbrance certificate Ex.B3 was given to him by the 2nd defendant, there is no evidence to that effect. That apart, it is clear that Ex.B3 was obtained purposely only for the period from 1-1-1970 and there is no explanation forthcoming as to why the non-encumbrance certificate for the period earlier to that was not obtained. Ex.B4 has got significance as it is an intimation u/s 27 of the Urban Land Ceiling Act, which was on the statute book as on that day, i.e. 16-4-1979. Ex.B5 is the electricity bill, dated 26-11-1980, which is after the initiation of the legal proceedings and has got no evidentiary value. Exs.B6 and B7 are the proceedings in Memos dated 7-6-1979 issued by the Accommodation Controller directing the parties, i.e. plaintiff''s husband and the 1st defendant to get the matter settled in a civil Court, which were already reflected and commented by me above. DW2 is one M.A. Samad, who is said to be a neighbour of the suit house and whose evidence is irrelevant, vague and baseless. DW3 is an attestor of Ex.B1. The another attestor of Ex.B1 is DW4. The evidence adduced by the defendants, though proves the execution of Ex.Bl sale deed by the 2nd defendant in favour of the 1st defendant do not prove his possession and his exercise of rights over the suit house as was done by the plaintiff. The consideration for Ex.B1, dated 19-3-1979 is shown to be Rs.9,500/-, while the consideration shown in Ex.Al even in the year 1968 was Rs.10,000/-plus the expenses borne by the plaintiff for getting Ex.A3 and also paying arrears of house tax and that itself shows that there was a collusion between defendants 1 and 2 and Defendant No.2 even assuming that he had received the consideration amount of Rs.9,500/-in the year 1979, i.e., after 11 years of Ex.Al sale deed, he was not a loser and because of the rise in prices the 1st defendant had obtained Ex.B1 deliberately knowing fully well the rights of the plaintiff. That is the reason why the 2nd defendant had conveniently remained ex parte. Analysis of evidence, both oral and documentary, proves the plaintiff''s title and possession to the suit property and rightly Mr. Seshagiri Rao, the learned Counsel for the appellant had laid stress in this appeal on the point of law regarding the inapplicability of Section 43 of the Transfer of Property Act.

The thrust of Mr. T. Seshagiri Rao, the learned Counsel for the appellant is on the inapplicability of Section 43 of the Transfer of Property Act, and it is on the ground that the transfer by the 2nd defendant in favour of the plaintiff under Ex.A1 was illegal. His argument is that since A.P. Housing Board or its predecessor City Improvement Board aimed at providing the house at very reasonable rates and that too with convenience of payment in several easy annual instalments, the public purpose was to provide the houses for needy, who were not having houses of their own; as such, the transfer under Ex.A1 was against the public policy hit by Section 23 of the Indian Contract Act and that consequently, Section 43 of the Transfer of Property Act is not applicable. In support of his contention, he has cited the decisions in Vaddadi Sannamma Vs. Koduganti Radhabhayi and Others, , M. Seetharama Sastry v. N.Kaulwar 1968 (2) An. WR 267, Syed Jalal and Others Vs. Tarrgopal Ram Reddy and Others, , Meram Pocham and Another Vs. The Agent to the State Government, (Collector), District Adilabad and Others, , C. Ramaiah Vs. Mohammadunnisa Begum, and Col. Denzyl Winston Ferries Vs. Abdul Jaleel and others, .

The above legal precedents, no doubt, support the view that the transfer effected in contravention of a legal provision enacted by way of public policy, violates Section 23 of the Indian Contract Act. It is no doubt true if the transfer under Ex.A1 comes within the ambit of such prohibition, certainly it is hit by Section 23 of the Indian Contract Act and consequently, the benefit u/s 43 of the Transfer of Property Act may not be available to the 1st respondent. The question is as to whether the transfer in question is prohibited as a matter of public policy on the anology of either Section 47 of the A.P. (Telangana Area) Tenancy and Agricultural Land Act, 1950, which was hitherto in the statute book or such related provisions. An instance can be taken regarding prohibition of alienation of assigned lands, under A.P. Act 9 of 1977. But, the transaction between A.P. Housing Board or even its predecessor City Improvement Board with the 2nd defendant cannot be equated to such transactions hit by Section 23 of the Indian Contract Act. The regulations framed u/s 71 of the A.P. Housing Board Act, 1956 or analogous provisions by its predecessor in interest, a scheme was framed to provide houses subject to certain conditions, that allotment will not be made if the applicant owns a house either in the name of the applicant or in the name of his/her spouse or minor child or exceeds a particular income group. These cannot be read as prohibiting the transfer by the allottee or even the conditions in the hire purchase agreement with regard to parting of the possession. They are in the nature of regulations and if violated, can be visited with penal consequences of cancellation of allotment and even some times the payment for entire amount bye-passing the conditions of payment of the amount in instalments. In fact, it is one of the conditions that the allotment can be cancelled, if there is no requisite paying capacity. Once the house is allotted, the interest of the City Improvement Board or A.P. Housing Board is to get the instalments and the transfer of the said house is not barred by way of any public policy. If that be so, even Ex.B1 will be hit by the same yardstick, but it is not so. A comparative provision contained u/s 48-A of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1956 can be taken, which prohibits transfer of the lands on which the ownership is conferred in favour of the protected tenant for an initial period of 8 years from the date of issuance of ownership certificate. There is no such embargo for the houses constructed by the City Improvement Board or A.P. Housing Board. As such, the principles enunciated u/s 23 of the Indian Contract Act are not applicable in the instant case. As a necessary corollary, the benefit of Section 43 of the Transfer of Property Act will go to the plaintiff/ 1st respondent. The decisions cited by Mr. S. Suryaprakasa Rao, the learned Counsel for the 1st respondent in Tilakdhah Lal v. Khedan Lal AIR 1921 PC 112, Ganga Bakhsh Singh and Others Vs. Madho Singh and Others, , Parma Nand Vs. Champa Lal and Others, , Veeraswami v. D. V. Subbnrao AIR 1957 AP 288, Ramaswamy Pattamali and Others Vs. Lakshmi and Others, and Stikanth Neemfatr v. Yelloji Rcto 1977 ALT 39 support the argument in favour of applicability of Section 43 of the Transfer of Property Act to the instant case. The 2nd defendant was the ostensible owner as on the date of Ex.Al in the year 1968 and he had represented to the plaintiff in the recitals therein that he had paid the entire instalments and nothing was due to the A.P. Housing Board, but later on it was found that he was due some instalments and the same have been paid by the plaintiff and then Ex.A3 was obtained from A.P. Housing Board. In view of the same, the 2nd defendant, who was the ostensible owner in 1968 (at the time of obtaining of Ex.Al) became the absolute and real owner of the suit house on obtaining Ex.A3 in the year 1977, and the 2nd defendant was bound by the special rule of estoppel laid down in Section 43 of the Transfer of Property Act and the purported transfer of the suit house by him to the 1st defendant under Ex.Bl was illegal and inoperative as he was not having any title to convey to the 1st defendant. It is also pertinent to mention that no further transfer was necessary after Ex.A3 as the transfer under Ex.Al, which was in fluid state, became absolute on obtaining Ex.A3.

In view of what is stated supra, this appeal fails and the same is accordingly dismissed; but with no order as to costs.