IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) WEDNESDAY, THE NINTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.1953 of 2007 BETWEEN: Gurrampati Mohan alias Mohan Reddy … APPELLANT(S) And Gurrampati Naga MuniReddy … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.1953 of 2007 ORDER: The petitioner Gurrampati Mohan alias Mohan Reddy in this CRP which is filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 (for short Act) is the respondent in the eviction petition R.C.C.No.1/2000 on the file of the Court of Rent Controller cum Principal Junior Civil Judge, Kadapa. 2. The respondent Gurrampati Naga Muni Reddy herein filed the above eviction petition on two grounds. The first is wrongful denial of title and the second is wilful default in payment of rents falling under Section 10(2)(vi) and 10(2)(i) of the Act. The Rent Controller after a contest by his order dated 12.12.2003 held that the denial of title was bona fide and in that view of the matter he dismissed the eviction petition holding that the question of default in payment of rents does not arise as landlord-tenant relationship has not been established by the petitioner in the eviction petition. Questioning that order Gurrampati Naga Muni Reddy i.e. the petitioner in the eviction petition filed appeal R.C.A.No.4/2004 before the appellate authority i.e. the Senior Civil Judge, Kadapa. 3. The appellate authority by its order dated 12.03.2007 concluded that the denial of title was not bona fide and therefore the landlord-tenant relationship was established and consequently there was default in payment of rents and in that view of the matter it reversed the order of the Rent Controller and ordered eviction. Assailing that order Gurrampati Mohan Reddy filed this CRP. 4. It should be mentioned here that though this is a revision, to state and decide the points that were raised and the various aspects on which arguments were addressed by both sides in this revision, the respective cases of the parties should be noted and hereafterwards for the sake of convenience the parties shall be referred to by their names as Naga Muni Reddy and Mohan Reddy. 5. Both Naga Muni Reddy and Mohan Reddy are sons of one Pedda Subbanna alias Pedda Subba Reddy. They have another brother by name Ramamurthy Reddy and he is not a party to these proceedings. Pedda Subbanna purchased the petition schedule premises under two registered sale deeds one dated 06.09.1984 and the other dated 10.09.1984 which were marked as Exs.A.1 and A.2 before the Rent Controller. These facts are not in dispute. 6. The case of Naga Muni Reddy is that his father Pedda Subbanna executed a registered will dated 09.10.1990 (registration copy marked as Ex.A.3 and the original marked as Ex.A.6) bequeathing the petition schedule premises (referred to hereafterwards as disputed building) in his favour and he died on 28.12.1998 and this date of death of Pedda Subbanna is not in dispute. The plea of Naga Muni Reddy is that earlier Mohan Reddy filed a suit O.S.No.312 of 1998 in the Court of III Junior Civil Judge, Kadapa, for a perpetual prohibitory injunction against his father, himself (Naga Muni Reddy) and Ramamurthy on the plea that Pedda Subbanna (father of the parties) executed a rental deed dated 10.05.1994 in his favour for the disputed building on a monthly rent of Rs.500/- and ever since then he has been in possession of the same and that the defendants therein were wrongfully interfering with his possession. Nagamuni Reddy further says that the said suit was dismissed for default or non- prosecution. 7. The further case of Naga Muni Reddy is that after the death of his father which occurred on 28.12.1998 he got title to and possession of the disputed building as a legatee under his father’s will dated 09.10.19990 and therefore he has become the landlord of the disputed building by succession under the will and consequently his brother Mohan Reddy has become his tenant. The further plea of the Naga Muni Reddy is that his brother Mohan Reddy did not pay rents to him from the date of death of his father and when he demanded it he wrongfully denied his title. The version of Naga Muni Reddy in this connection is that since Mohan Reddy has himself admitted in the above mentioned O.S.No.312 of 1998 that he has been the tenant of their father he must be held to have become his (Naga Muni Reddy) tenant now following the Will deed of their father and since he committed default in payment of rents and denied his title he must be ordered to be evicted. This is the plea of Naga Muni Reddy and it is found in para-6of this petition. 8. Mohan Reddy filed short counter in the eviction petition resisting it. He denied the entire case of Naga Muni Reddy. He then pleaded that he is in possession of the disputed building and he is paying taxes for the same and that a partition suit i.e. O.S.No.760/1999 is also pending on the file of the IV Additional Munisif Court, Kadapa. He then stated that there is no landlord- tenant relationship between him and Nagamuni Reddy and consequently the eviction petition should be dismissed. A further plea is also taken by Mohan Reddy that no notice has been issued by Naga Muni Reddy either under the Transfer of Property Act or under the present Act calling upon him to vacate the premises and therefore the eviction petition is not maintainable on that ground also. 9. The following are the points which arise for determination in this revision. (i) Whether the denial of title of Naga Muni Reddy to the disputed building by Mohan Reddy can be treated as a bona fide one? (ii) Whether Mohan Reddy committed default in payment of rents as pleaded by Naga Muni Reddy? (This point has to be taken up on merits depending upon the answer to the above first point) (iii) To what relief? Point No.1: 9. The learned counsel appearing for Mohan Reddy firstly pointed out that no notice was issued by Naga Muni Reddy to him claiming title to the disputed building and pleading default in payment of rents either under the Transfer of Property Act or under the Provisions of the Act and therefore that is fatal to the eviction petition. There is no force in this contention. It may be noted that Naga Muni Reddy claimed that the agreed rent for the disputed building is only Rs.500/- per month and therefore the building stands covered by the Act. It is now settled that before filing an eviction petition under the Act against a purported tenant no prior notice is necessary and non-issuance of such a notice is not fatal to the eviction petition when it is filed under the Act. 10. The second aspect pointed out on behalf of Mohan Reddy is that though he earlier filed the suit O.S.No.312 of 1998 against his father and brothers pleading tenancy from his father, Naga Muni Reddy should have issued a notice stating that after the death of their father he became owner or landlord of the disputed building claiming to be landlord. It should be noted that if a person becomes owner of the building by transfer inter vivos or by operation of law having got it from the original landlord under a will or by inheritance then such person becomes a landlord under the Act and attornment of tenancy is also not necessary. Thus if the Will pleaded by the Naga Muni Reddy is accepted the above contemplated notice is also not necessary and this position is also well settled and there is no need to refer to the authorities cited by the learned counsel for Naga Muni Reddy on this aspect. Hence this contention is also rejected. The matter does not end there. 11. The question now is whether the Will of Pedda Subbanna pleaded by Naga Muni Reddy and his further plea that Mohan Reddy has become his tenant pursuant to that Will after the death of Pedda Subbanna can be accepted as proved or whether the dispute raised by Mohan Reddy regarding the title of Naga Muni Reddy can be said to be a bona fide dispute or a bona fide denial of title. The answer to this point No.1 depends upon this question which will be now taken up. Before this question is taken up, it should be noted that both Naga Muni Reddy and Mohan Reddy and also Ramamurthy Reddy are brothers and are sons of Pedda Subbanna and there is no dispute on this aspect. In the absence of the Will pleaded by Naga Muni Reddy all the children of Pedda Subbanna would become his heirs and shareholder in the disputed building. It is in this background this question has to be decided. 12. The learned counsel for Naga Muni Reddy mainly relied upon two circumstances which were also made the basis of the order of the appellate authority. The first is Ex.A.4 plaint copy in O.S.No.312 of 1998 brought by Mohan Reddy on the file of the III Additional Junior Civil Judge, Kadapa. This suit as Ex.A.4 plaint copy reads was admittedly brought by Mohan Reddy against the father of the parties and his two brothers on the plea that his father executed a rental deed dated 10.05.1994 whereunder he leased out the disputed building to him for running a school on a monthly rent of Rs.500/-. The plea taken by Naga Muni Reddy in the said suit is that he was tenant of his father in the disputed building and he was running a school in it and his father and brothers were without any right interfering with his possession and on that basis he sought for a perpetual injunction for protection of his possession. The further plea of the Naga Muni Reddy is that since his father died on 28.12.1998 bequeathing the disputed building to him Mohan Reddy must be deemed to have become his tenant. 13. The second circumstance relied upon on behalf of Naga Muni Reddy is that after the death of his father Mohan Reddy brought a partition suit i.e. O.S.No.760 of 1999 on the file of the IV Additional Junior Civil Judge, Kadapa, for partition of certain properties and in the said suit Mohan Reddy did not include or make any claim for the disputed building and this itself suggests that Mohan Reddy accepted Ex.A.6 original Will relied upon by Naga Muni Reddy and consequently he cannot be now permitted to deny the title of Naga Muni Reddy to the disputed building. Mohan Reddy admitted about the filing of these two suits and also their dismissal for non-prosecution. However as argued by the learned counsel for Mohan Reddy both the above circumstances cannot be held to support the case of Naga Muni Reddy. 14. The circumstance based on Ex.A.5 plaint copy in O.S.No.760 of 1999 (partition suit) is first taken up. It may be noted that a perusal of Ex.A.5 plaint copy in the said suit would show that there were seven defendants in it and the subject matter of that suit was about Acs.8-69 cts. of land in Sy.No.415 of Mamillapalli village. The said plaint copy would further show that the said extent of Acs.8-69 cts. was purchased by one Koppolu Subbaiah, Gurrampati Subba Reddy (Pedda Subbanna i.e. father of parties) and a third person Rajanarsimha Reddy jointly. Mohan Reddy is the plaintiff while Naga Muni Reddy and Ramamurthy Reddy (his brothers) were defendants 4 and 5 i.e. heirs of their father, while defendants 1 to 3 were shown as heirs of Koppolu Subbaiah while Rajanarsima Reddy and Raja Chinna Narsimha Reddy were shown as defendants 6 and 7. 15. The claim in the said plaint would further show that the above three joint purchasers have equal shares in the said Acs.8- 69 cts. and Mohan Reddy and his two brothers were claiming a one-third share as heirs of their father, while he pleaded that defendants 1 to 3 therein were entitled to a one-third share as heirs of Koppula Subaiah and defendants 6 and 7 were entitled to the other one-third share. Thus this was a suit brought by Mohan Reddy against persons who were not his family members and he claimed one-third share for himself and his brothers as heirs of his father as against the other defendants who were arrayed as the heirs of the other joint purchasers of the said property. It should be noted that if the family property of Mohan Reddy and his two brothers is included in the said suit that may amount to mis-joinder of causes of action or in any event since the property Acs.8-69 cts. was outside the scope of the exclusive family property of Mohan Reddy and his brothers, he cannot be faulted for not including the disputed building in the said suit. Consequently this second circumstance relied upon by the learned counsel for Naga Muni Reddy as supporting his case cannot be accepted. 16. It should be noted here that in his cross-examination Naga Muni Reddy as P.W.1 admitted that subsequently Mohan Reddy filed O.S.No.428 of 2002 against himself and his brother Ramamurthy Reddy in respect of the disputed building. Thus it may be noted that whatever may be the position on the date of death of Pedda Subbanna the fact remains that the above suit O.S.No.428 of 2002 is now pending between the parties regarding the title to disputed building and this suit is stated to be pending in the Court of Principal Junior Civil Judge, Kadapa. It therefore cannot be said that Mohan Reddy did not dispute the title of Naga Muni Reddy to the disputed building. This is prima facie a minus point for Naga Muni Reddy. 17. Then coming to the first circumstance pertaining to O.S.No.312 of 1998, it is true that Ex.A.4 plaint copy therein shows that Mohan Reddy in that suit claimed to be a tenant of his father under a rental deed dated 10.05.1994. Even according to Naga Muni Reddy the disputed building is the absolute property of his father Pedda Subbanna and admittedly Mohan Reddy and Ramamurthy Reddy are also his sons. Thus with the death of Pedda Subbanna which occurred on 28.12.1998 it can be said that the said tenancy has come to an end. In other words with the death of Pedda Subbanna on 28.12.1998 it can be said that Mohan Reddy has also become a heir or shareholder in the disputed building and he ceases to be a tenant of his father. Of-course if Ex.A.6 Will is upheld in any civil Court that may change the line of succession to the disputed building. 18. Now Naga Muni Reddy did not file any document or show any act on the part of Mohan Reddy to draw an inference that after the death of their father he accepted Naga Muni Reddy as his landlord. Pedda Subbanna admittedly died on 28.12.1998. The eviction petition in question was presented on 10.04.2000 i.e. nearly one year four months after the death of Pedda Subbanna. It is not explained by the Naga Muni Reddy as to what made him to wait for one year four months in filing the eviction petition. 19. The appellate authority in its order made a comment that R.W.1 Mohan Reddy admitted in his cross-examination that he came to know about Ex.A.6 Will relied upon by Naga Muni Reddy way back in 1994 and since he did not take any steps to have that Will set aside Naga Muni Reddy’s case gains strength from that aspect. This conclusion of appellate authority cannot be accepted. It should be noted that P.Ws.2 and 3 in their chief examination stated that at the time of execution of Ex.A.6 Will only themselves, Pedda Subbanna and the scribe were present at the Sub-Registrar’s office. P.W.1 Naga Muni Reddy himself in the very opening sentence of his cross- examination stated that he does not know when his father executed the Will in his favour. Such being the answer of P.W.1 much importance need not be given to the above answer of R.W.1 Mohan Reddy that he came to know about the Will in 1994. 20. There is also another reason why the above aspect of R.W.1 not taking action since 1994 though he knew about the Will by that year need not be given importance. It may be noted that the burden of proving a Will which changes the normal course of succession always lies upon the person who propounds it. Such being the legal position it is quite possible that Mohan Reddy could have kept quiet to dispute it as and when Naga Muni Reddy sets it up. Hence this circumstance also cannot help Naga Muni Reddy. It should also be noted that P.W.1 Naga Muni Reddy in his cross- examination further admitted that Mohan Reddy is running a school in the disputed building and since 1998 he is also paying the house tax. It is quite possible that Mohan Reddy must have been in occupation of the building even since 1994 i.e. the date of rental agreement. 21. It should also be noted that in para-4 of the eviction petition Naga Muni Reddy admitted that Sri Chowdeswari Devi Oriental School was started with Mohan Reddy as Correspondent and Naga Muni Reddy as Vice-President of the said school and it was registered under the Societies Registration Act. Even in Ex.A.4 plaint copy Mohan Reddy has stated that Chowdeswari Devi Oriental High School is run by him in the disputed building on a lease obtained from his father. The above circumstances prima facie show that the brothers were on good terms and were running the school and it appears that trouble broke out between them by the date of Ex.A.4 plaint copy and it became an open fight between them for the disputed building after the death of their father. 22. It may also be noted that even according to Naga Muni Reddy their joint family properties already disappeared by the date of purchase of disputed building by the father of the parties and the disputed building is the self-acquisition of his father. Ex.A.6 Will reads that Pedda Subbanna was aged 75 years by its date. There was no other property of him. In such a situation any father could not have ignored his other two sons and decided to give his sole property to the eldest son. An argument was advanced on behalf of Naga Muni Reddy that the Will is a registered one but registration by itself cannot give any sanctity to a document. At best it is a factor to be considered while deciding about the genuineness of that document. It is however not open for the fora under the Act to pronounce upon this question. This question has to be decided by the civil Court. A civil suit i.e. O.S.No.428 of 2002 is already admittedly pending between the parties with rival claims of title to the disputed building. 23. The learned Rent Controller considered all the above circumstances and concluded that the denial of title by Mohan Reddy and also the denial of landlord-tenant relationship between him and Naga Muni Reddy can be said to be a bona fide one. The appellate authority without recording any convincing reasons reversed the well-considered order of the Rent Controller. The learned counsel for Mohan Reddy relied upon A.V.G.P. CHETTIAR AND SONS vs. T. PALANISAMY GOUNDER[1] and J.J. LAL PVT. LIMITED vs. M.R. MURALI[2] in support of his contention that in the above circumstances the denial of title and the denial of landlord-tenant relationship pleaded by Mohan Reddy should be accepted as a bona fide one. In both these cases which arose under the Tamilnadu Builidngs (Lease and Rent Control) Act 1960 it has been considered as to what is meant by a bona fide denial of title and it was held that where a plea relating to denial of title is found to be not frivolous or not without any basis it can be said to be a bona fide denial of title. Even in KEDAR BHATIA vs. LINGARKAR PANDURANGA RAO[3] the same proposition is laid down though the facts in the above three cases as is usual are different from the facts in the present case. 24. It may be noted at the risk of repetition that this is a case where the dispute is between full-blood brothers with regard to the property of their father. Having regard to the above circumstances and the pleas taken by Mohan Reddy it can be said that his plea about denial of title and landlord and tenant relationship between him and Naga Muni Reddy is a bona fide one. It can also, therefore, be said that the fact that Mohan Reddy did not expressly deny the Will in his counter cannot be a minus point for him as he totally denied the case of the Naga Muni Reddy about his exclusive title to the disputed building and the landlord-tenant relationship and is able to show that his defence is a bona fide one. 25. It may be noted that this Court will not in a revision under Section 22 of the Act normally disturb a finding of fact recorded by an appellate authority unless it is found that it is based on no evidence at all or its conclusion is not permitted by the evidence on record and the circumstances of the case and is against reason and improper. In the present case on the basis of the evidence on record and the above circumstances the Rent Controller in my opinion correctly concluded that there is a bona fide title dispute between the brothers regarding the disputed building. The appellate authority reversed the conclusion of the Rent Controller ignoring the above circumstances borne out by evidence. Hence the said finding can be said to be against evidence and in my opinion calls for interference by this Court. Accordingly this point is decided in favour of Mohan Reddy upholding his case. Point No.2: 25. In view of the finding under point No.1 it follows that once the denial of title is found to be bona fide, the plea of Mohan Reddy that they being sons of Pedda Subbanna are his heirs and that there is no landlord-tenant relationship between them should also be accepted. Thus the question of default in payment of rents does not arise at all. This point is accordingly decided. Point No.3: 26. In the result, the order of the appellate authority is set aside and that of the Rent Controller is restored and this CRP is accordingly allowed. It shall be open for the Naga Muni Reddy to workout his remedies in a civil Court. No costs. _______________________ N. RAVI SHANKAR, J. 9th February 2011 CVRK [1] (2002) 4 Supreme 134 [2] (2002) 3 SCC 98 [3] 1998 (2) ALT 105