* HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Civil Revision Petition No. 2233 of 2006 % 28.02.2011 # Mirza Basharath Ali Khan .. Petitioner/Respondent/Petitioner Vs. $ P. Jagannath Rao .. Respondent/Appellant/Respondent <GIST: >HEAD NOTE: ! Counsel for Petitioner : Sri B. Narayana Reddy ^ Counsel for respondent : Sri S. Mallareddy ? CASES REFERRED : 1. AIR 1991 Supreme Court 884 2. 2004(6) ALD 161 3. AIR 1991 Supreme Court 1094 4. AIR 1973 Delhi 280 5. AIR 2008 SC 2033 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No. 2233 of 2006 Order: This revision petition arises out of the order dated 03.11.2005 passed in R.A. No.111 of 2001 by the Additional Chief Judge, City Small Causes Court, Hyderabad (hereinafter referred to as appellate authority), whereby and whereunder the learned appellate authority reversed the eviction order passed by the Principal Rent Controller, Hyderabad, in R.C. No.776 of 1995, dated 30.12.2000, whereunder the petition filed by the petitioner herein, for evicting the respondent herein was allowed. The brief facts of the case necessary for disposal of this revision as could be gathered from the pleadings and evidence of the parties are as follows. The petition schedule premises originally belonged to Meherunnisa Begum, the mother of the petitioner. She made an oral gift in favour of the petitioner on 23.05.1966. The same is reflected in the assessment order (Ex.A1) of Meherunnisa Begum passed by the assessing authority for the year 1967-68 on 06.12.1967. Gift tax of Rs.3911/- was also paid by her on 04.09.1968 under challan Ex.A2. Special notice of house tax, dated 03.12.1968, under Ex.A11 was issued by the MCH in the name of the petitioner in respect of the petition schedule property and the petitioner sent a reply to the said special notice on 03.10.1969 under Ex.A12. The respondent has taken the petition schedule premises on lease under a registered rental agreement dated 19.08.1966. This rental agreement was executed by the husband of Meherunnisa Begum namely Mirza Ali Hussain Khan, representing Meherunnisa Begum, in favour of the respondent, whereunder the premises was leased out to the respondent on a monthly rent of Rs.150/-. The father of the petitioner continued to collect rents from the respondent during his life time and he died on 23.12.1976. It appears that as Meherunnisa Begum had been suffering from Lunacy, the petitioner herein filed O.P. No.505 of 1977 on the file of the Additional Chief Judge, City Civil Court, Secunderabad, against all his brothers and sisters seeking to appoint him as guardian of his mother Meherunnisa Begum, and the said petition was allowed on 31.01.1979 (Ex.B3) and the petitioner was appointed as guardian of Meherunnisa Begum. Then the petitioner filed O.S. No.3035 of 1979 on the file of the VIII Assistant Judge, City Civil Court, Hyderabad, seeking eviction of the respondent from the petition schedule property. However, the said suit was dismissed on 17.08.1982 (Ex.B4) and no appeal was filed against the said judgment. Alleging that the petitioner herein refused to receive the rents on behalf of his mother, the respondent filed RC No.330 of 1985 against Meherunnisa Begum represented by her guardian, the petitioner herein under Section 9(3) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’) seeking permission to deposit the rents into Court. Meherunnisa Begum, represented by her guardian the petitioner, filed a counter under Ex.A5 on 01.07.1986 stating that she is not the owner of the petition schedule property and that the petitioner is the owner of the petition schedule property. However, R.C. No.330 of 1985 was dismissed for default on 05.04.1989. Then, the respondent issued a notice dated 19.02.1989 (Ex.A6) to Meherunnisa Begum to receive the arrears of rents for the period commencing from August 1985 to December 1989 and enclosed a cheque for Rs.7950/- for the arrears of rent for the said period. Meherunnisa Begum through her guardian sent a reply notice dated 09.01.1990 under Ex.A7 and categorically stated that she has gifted the petition schedule property to the petitioner and that the petitioner is the owner of the said property and that she has no right, title or interest in the said property and accordingly the cheque sent by the respondent was returned to him. Then, on 19.03.1990, the respondent filed R.C. No.166 of 1990 on the file of the Principal Rent Controller, Hyderabad, against Meherunnisa Begum through her guardian the petitioner, under Section 8(5) of the Act for deposit of rents (Ex.A8). Meharunnisa Begum filed a counter in the said RC on 17.09.1991 under Ex.A9 reiterating her stand and R.C. No.166 of 1990 was dismissed on contest on 23.01.1995. Aggrieved by the said orders, the respondent filed RA No. 128 of 1996 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. During the pendency of the said appeal, Meherunnisa Begum died and the respondent herein got impleaded the sons and daughters of Meherunnisa Begum to the said appeal, who filed a memo in Ex.A23 and categorically informed the respondent that their mother Meherunnisa Begum executed a gift deed in favour of the petitioner and that they have no claim, right, share and title in and over the petition schedule property. The said appeal was dismissed on 08.08.2000 (Ex.A24). While so, the petitioner filed the present RC No.776 of 1995 on the file of the Principal rent Controller, Hyderabad, against the respondent for his eviction on the ground of willful default in payment of rents from 01.08.1985 onwards. The petitioner’s specific case is that he is the owner and landlord of the petition schedule property and that the respondent failed and neglected to pay rents from August 1985 onwards in spite of his repeated demands and committed willful default. It is also his case that the respondent with an ulterior motive a n d mala fide intention denied his title though the position was clarified by Meherunnisa Begum herself. The respondent filed a counter and denied the case of the petitioner that he committed default in payment of rents. The specific case of the respondent is that during the life time of Meherunnisa Begum her husband used to collect rents from him and after the death of her husband, the petitioner was appointed as guardian of the landlady and that he was collecting rents and that there were family disputes among the family members of the petitioner and therefore he filed RC No.330 of 1985 and remitted the rents from August 1985 to December 1989 amounting to Rs.7,950/- through cheque No.0869069, dated 19.08.1989 to the landlady, but the said cheque was returned with reply dated 09.01.1990. It is also his case that thereafter he tendered rents to the petitioner by cheque and it was also returned as refused and then he filed RC No.166 of 1990 and as per the orders of the Court he was depositing the rents into the Court. It is his specific case that he has no knowledge about the ownership of the petitioner and that he denied the title of the petitioner in good faith and not with any mala fide intention. The learned Rent Controller, holding that when the property is in possession of the tenants the donor may put the donee in possession by asking the tenants to attorn to the donee and that actual delivery of possession is not necessary and that the petitioner is the landlord and that the respondent failed to pay the rents to the petitioner and the denial of title by the respondent is not bona fide, allowed the petition. On appeal, the appellate authority reversed the judgment of the Rent Controller mainly on the ground that once the Civil Court held that the petitioner has no title to the property and the gift was not validly accepted, the subsequent finding of the Rent Controller is not correct and that the Rent Controller cannot decide the title and in the circumstances the respondents stand in denying the title of the petitioner to the petition schedule is bona fide. Aggrieved by the order of the appellate authority in R.A. No.111 of 2001, the petitioner filed the present revision. Heard Sri B. Narayana Reddy, learned counsel for the petitioner and Sri S. Malla Reddy, learned counsel for the respondent. The sum and substance of the submissions of the learned counsel for the petitioner is that there is no dispute with regard to title of the petitioner among the family members of the petitioner and that during the life time his mother categorically asserted that she had gifted the petition schedule property to the petitioner and she made her stand clear in her counters and also in the reply notice sent to the respondent and in spite of the same the respondent has again denied the title of the petitioner only for the purpose of protracting the litigation and thus the denial of title of the petitioner by the respondent is not bona fide. It is also his submission that when the rents are not paid to the original owner who is entitled to receive the rents it is clear that the respondent committed willful default. The main submission of the learned counsel for the respondent is that the Rent Controller cannot decide the title dispute and once the Civil Court gave a finding that the petitioner has no title to the property, the subsequent finding of the Rent Controller is not valid and in fact the Rent Controller has no jurisdiction to decide the issue of title. It is also his submission that when there is a dispute to the title of the petitioner the denial of title of the petitioner by the respondent is bona fide. In support of his contention he has relied on the decisions reported in Life Insurance Corporation of India v. M/s. India Automobiles and Co.[1], S. Saraswathi v. Y. Laxminarayana[2] and M/s. East India Corporation Ltd., v. Shree Meenakshi Mills Ltd[3]. The points that arise for consideration are; (1) Whether the Rent Controller has jurisdiction to decide the title of the landlord? and (2) Whether the denial of title of the petitioner by the respondent in the facts and circumstances of the case is bona fide? POINT No.1: The A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 has been enacted to resolve the disputes between the landlord and the tenant. It regulates the incidence of tenancy and inter se rights and obligations of the landlord and tenant. Section 4 of the Act deals with determination of fair rent. The Controller, on application by the tenant or landlord of a building, has to fix the fair rent for such building after holding such enquiry as he thinks fit. Further, increase of rent may be ordered under Sections 5 and 6 of the Act. Section 9 of the Act gives a right to the tenant to deposit rent in certain cases i.e., where the address of the landlord or his authorized agent is not known to the tenant, or where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent for any building, sub-section (3) of Section 9 gives an opportunity to the tenant to deposit such a rent before such authority and in such manner as may be prescribed and to report to the Controller the circumstances under which such deposit was made by him and it also enables the tenant to continue to deposit any rent which may subsequently become due in respect of the building before the same authority. Section 10 of the Act deals with eviction of tenants. One of the ground available to the landlord is the denial of his title by the tenant. In such circumstances, the Controller shall decide whether the denial or claim of the tenant is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said section. The landlord may seek eviction of the tenant on the ground of default or on the allegation of committing acts of waste or creating acts of nuisance etc. The learned counsel for the respondent is right in saying that the Rent Controller has no jurisdiction to decide the issue of title. He has relied on the judgment in M/s. East India Corporation Ltd., v. Shree Meenakshi Mills Ltd (3 supra). The facts of that case reveal that at the time of institution of the suit for recovery of possession by the landlord against the tenant the building in question was exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as the agreed rent was Rs.900/- per month, as such out of the purview of the said Act. Subsequently, the relevant provision i.e., Clause (ii) of Section 30 was struck down by the Supreme Court in Rattan Arya v. State of Tamil Nadu (AIR 1986 SC 1444). Since the building was exempted from the purview of the Act referred to above, it was argued that the Civil Court which ordered the eviction had no jurisdiction to entertain the suit. In view of the same, the apex Court held that the Civil Court, acting without the aid of the exclusionary provision in Clause(ii) of Section 30, during the period of invalidity, has become coram non judice (the Court has no jurisdiction to decide the matter) and its proceedings resulting in the decree a nullity Thus, it was decided in that case that the Civil Court has no jurisdiction to decide a matter which is covered under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, the provisions of which are similar to the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. Then reliance is placed on S. Saraswathi v. Y. Laxminarayana (2 supra). In that case, the plaintiff filed a suit for declaration of title based on a notarized sale deed, whereunder it was agreed by both the parties to obtain a registered sale deed after sometime. However, no such sale deed was obtained. The plea of adverse possession of the plaintiff was also not accepted. On evidence, it was found that the notarized sale deed was inadmissible in evidence. The Civil Court has also taken into consideration the findings of the Rent Controller in the earlier proceedings. This Court, while discussing about the jurisdiction of the Rent Controller, observed that the issue of title cannot be gone into by the Rent Controller. There cannot be any doubt to say that it is the Civil Court that has got jurisdiction to go into the issue of title and the issue of title cannot be gone into by the Rent Controller. The learned counsel for the respondent has also relied on a decision reported in Life Insurance Corporation of India v. M/s. India Automobiles and Co. (1 supra). In that case, two applications were moved by the landlord for fixation of fair rents in respect of two separate premises, wherein the defendants claimed that in respect of one premises only vacant land was leased out to them and no building was leased out. On evidence, it was found that superstructures were put up by the lessees were not included in the lease deed. Then the apex Court held that the Rent Controller cannot decide far-reaching questions of title to immovable property. It was finally held that the Rent Controller had no jurisdiction to entertain the application for fixation of fair rent in respect of the property which was only a vacant piece of land. Para 21 of the said judgment is as follows. “We think that this contention is well founded. There are clear indications in the Act and Rules that the Rent Controller does not have the jurisdiction to decide questions of title. In a proceeding under the Act, whether it be for fixation of fair rent or eviction, the tenant may raise several objections. He may, inter alia, take up the point that the opposite party is not the "landlord". The definition of "landlord" under the Act is very wide and encompasses not only an owner but also persons "receiving or entitled receive the rent of the building which has been etlet out or would be entitled to receive the rent of the building if it were let out to a tenant" in one of several capacities. Denial of title of the landlord is itself one of the grounds on which eviction can be sought (S. 10(2)(vii)). Sri Krishnamurthy lyer is, therefore, certainly right in contending that the Act requires the Rent Controller to consider this issue, among others, while disposing the applications before him. But, we think, Sri Parasaran is right in saying that, since the Rent Controller has no jurisdiction to entertain an application except by a landlord or a tenant, the question of title to the property is one on which his very jurisdiction depends. It cannot be described as a matter that is squarely and directly in issue in these proceedings to which any finality can be attached, as the Rent Controller, by deciding the issue wrongly cannot clothe himself with jurisdiction where none exists. All that the Rent Controller has to do is to satisfy himself that the person seeking eviction or fixation of fair rent is a "landlord" who has, prima facie, the right to receive the rents of the property in question. That the Rent Controller's jurisdiction on this issue is limited is clear from the proviso to S. 10(1) of the Act. In order to decide whether the denial of the landlord's title by the tenant is bona fide, the Rent Controller may have to go into the tenant's contentions on the issue but he is not to decide the question finally. He has only to see whether the tenant's denial of the landlord's title is bona fide in the circumstances of the case. He may reach a conclusion, on the merits, that the landlord has title; yet he cannot order eviction of the tenant's action in denying the title was bona fide. Per contra, he may reach the conclusion on the materials before him that the landlord has no title; yet, it seems, if he finds that the applicant is otherwise a landlord and that the grounds on which the tenant's denial was based were not bona fide, he will have to order eviction. So also, in an application under S. 4, the jurisdiction of the Rent Controller is to determine a fair or standard rent for the premises. He has no doubt to ensure that the person applying for the fair rent is the tenant or the landlord. He has also no doubt to satisfy himself as to the extent of the premises qua which the relationship of landlord and tenant exists and in respect of which rent is receivable or payable. For deciding these issues, he may have no doubt also to consider the oral and documentary evidence adduced by the parties. Yet, having regard o the manner in which he is required to come to this conclusion and having regard to the fact that at least in the Presidency Town an appeal from his order goes to the Court of Small Causes, it is difficult to escape the conclusion that the jurisdiction to be exercised by him is a limited and a prima facie one. It will be 1 anomalous to hold that where an owner of'] property seeks to evict his tenant under Section 10(2)(vii) but the Rent Controller refuses to pass the order of eviction - though satisfied about his title - because the tenant had acted bona fide, it would be open to the owner to seek eviction by having his title adjudicated upon in a Civil Court but that the owner cannot have a similar right in the matter of recovery of rent which is basically a relief for which he has to approach a Civil Court. 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 deed or a gift deed and there may be contentious claims among several persons which it will not be possible for the Rent Controller to decide. It is important to remember that when an owner files a suit for arrears of rent, it is open to the tenant, under the general law, to plead that no rent is payable in respect of the premises as, indeed, it belongs to him. The right to raise this issue cannot be taken away without a specific statutory provision. The terms of Sec. 11, C. P. C., including Explanation VIII, are not comprehensive enough to cover the case.” Thus, it is clear that when the title of a landlord is in dispute the Rent Controller has no jurisdiction to decide the title. Under what circumstances we can say that there is genuine dispute with regard to the title of a party. A situation may arise where there may be rival claims, claiming title to the property under different situations, for example where a person is claiming right under a Will or gift or sale or as a legal heir of the original landlord, his claim may be disputed by the other heirs of the original landlord or by any other person and there may be a genuine and real dispute with regard to the title. Thus a sale deed, a Will, an adoption or a trust deed or a gift deed may be in dispute. When the Rent Controller or the Court comes to a conclusion that there are rival claims with regard to title of the property and there exists a genuine title dispute and a declaration with regard to title of the property is required, then the Rent Controller or the Court dealing with such an issue may direct both the parties to approach the Civil Court to seek a declaration of their title to the property, because, admittedly such a title dispute involves difficult issues and cannot be decided in summary procedure. The question of denying the title of a landlord by a tenant may arise in a given situation where for example, A may be claiming rents from a tenant claiming to be a landlord of a premises, B may say that he has title to the property and he is alone entitled to receive the rents. In such a situation, i.e., when there are rival claims or where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent for any building, the tenant may approach the Rent Controller under Section 9 of the Act. Sub-section (1) of Section 9 is as follows. 9. Right of tenant to deposit rent in certain cases:- (1) Where the address of the landlord or his authorized agent is not known to the tenant, he may deposit the rent lawfully payable to the land-lord in respect of the building, before such authority and in such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building before the same authority and in the same manner until the address of the landlord or his authorized agent becomes known to the tenant. Sub-Sections (3) and (4) of Section 9 of the Act are as follows. (3) Where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent for any building the tenant may deposit such rent before such authority and in such manner as may be prescribed and shall report to the Controller the circumstances under which such deposit was made by him and may continue to deposit any rent which may subsequently become due in respect of the building before the same authority and in the same