HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No. 3672 of 2008 Date: 08-10-2010 Between Y. Narsing Rao ………… Petitioner and Vishal Kulkarni …… Respondent HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No. 3672 of 2008 ORDER: This Revision Petition is purported to have been filed under Section 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ‘Rent Control Act’) by the petitioner seeking to assail the correctness of the Judgment, dated 16-07-2008 passed in R.A.No.190 of 2006 on the file of the Chief Judge, City Small Causes Court, Hyderabad, allowing the said Appeal and setting aside the Judgment, dated 26-12-2005 passed in R.C.No.389 of 2003 on the file of the III Additional Rent Controller, Hyderabad, dismissing the petition purported to have been filed by the respondent herein under Section 10(2)(i) and (vi) of the Rent Control Act, wherein he sought for eviction of the petitioner herein from the petition schedule premises consisting of Portion No.2 with two rooms, one kitchen with common latrine, bathroom in House No.23-6-940 situated at Shah-Ali-Banda, Hyderabad. 2. For the sake of convenience, hereinafter, the parties will be referred to as they are arrayed in the Rent Control Case. 3. In the eviction petition filed by the petitioner-landlord, the claim for eviction was based on two grounds i.e., the respondent-tenant was mala fidely denying the title of the per- landlord and committed willful default in payment of the rents from June, 1997 to September, 2003 @ Rs.200/- per month. 4. The brief facts of the case are that the petitioner- landlord is the paternal grandson of late Narahari, who had one son by name Govind Rao and a daughter by name Anuradha Bai @ Bhagirathi Bai. The petitioner-landlord is the son of Govind Rao. Late Narahari performed the marriage of Anuradha Bai with one Ramakrsihna Rao Hulsulkar, whose first wife died. Since there were some disputes and quarrels between Anuradha Bai and the children of Ramakrishna Rao Hulsulkar born through his first wife, Anuradha Bai was brought back to her maternal house and a registered gift settlement deed, dated 06-01-1971, was executed in her favour in respect of the property bearing House No.23-6-940 admeasuring 165 square yards situated in Shah-Ali-Banda, Hyderabad. Since the property was in dilapidated condition and it was collapsed, the father of the petitioner i.e., Govind Rao, constructed a house thereon consisting of three residential portions and inducted the tenants in two portions and retained one portion for the occupation of Anuradha Bai. The petitioner’s father used to collect rents from the tenants. Anuradha Bai executed a Will deed on 11-09-1990 bequeathing the said property in favour of the petitioner-landlord since she has no children. Subsequently, Anuradha Bai died and the petitioner-landlord performed her last rites. Thereafter, since the petitioner was minor, his father Govind Rao used to look after the property and collect the rents. The name of the petitioner-landlord was also mutated in the municipal records. The respondent was inducted as tenant in the year 1972- 73 in portion No.2 of the said premises on a monthly rent of Rs.40/- per month initially and subsequently, it was enhanced to Rs.200/- per month. The respondent-tenant paid the rents directly to the father of the petitioner-landlord for quite sometime and subsequently he stopped the payment. Later on, by taking advantage of the disputes between the petitioner-landlord and the children of the Ramakrishna Rao Hulsulkar born through his first wife, the respondent-tenant, in collusion with them, projected them as owners of the said house and filed a suit in O.S.No.109 of 1998 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad and also filed R.C.No.392 of 1998 on the file of the Principal Rent Controller, Hyderabad, against the sons of late Ramakrishna Rao Hulsulkar, without impleading the petitioner-landlord. The petitioner-landlord issued a legal notice on 19-07-2003 calling upon the respondent- tenant to pay the arrears of rent from June, 1997 onwards. The respondent-tenant issued a reply notice on 25-07-2003 and again it was followed by a rejoinder notice, dated 24-08-2003. Therefore, in view of the mala fide denial of title by the respondent-tenant and willful default committed by him, he is liable to be evicted from the petition schedule premises. 5. Contesting the eviction petition filed by the petitioner- landlord before the Rent Controller, the respondent-tenant filed a counter. The case of the respondent-tenant was total denial of title of the petitioner-landlord on the ground that the children of Ramakrishna Rao Hulsulkar, born through his first wife, are entitled to the said property and from them he purchased the property pursuant to the agreement of sale, dated 23-02-1997 for Rs.82,800/- and paid an amount of Rs.5,000/- towards advance. Since no sale deed was forthcoming, the respondent-tenant filed a suit in O.S.No.109 of 1998, which was decreed on 23-04-2003. Thereafter, in execution proceedings in E.P.No.262 of 2003, the sale deed was got registered through the Court as per the orders, dated 13-11- 2003. Therefore, the petitioner-landlord is not at all the owner of the property. 6. It is also pointed out in the counter that the respondent- tenant had filed O.S.No.16448 of 2008 on the file of the VIII Junior Civil Judge, City Civil Court, Hyderabad and obtained interim injunction on 26-12-2003 and same is subsisting. The allegation that there was settlement between the petitioner-landlord and the children of Rama Krishna Rao Hulsulkar, born through his first wife, is not correct and there is no cause of action and there is no jural relationship of landlord and tenant and there exist a bona fide denial of title and thus the eviction petition is not maintainable and liable to be dismissed. 7. To substantiate his contention, the petitioner-landlord himself was examined as PW-1 and got examined PWs.2 and 3 and got marked Exs.P-1 to P-47. On behalf of the respondent-tenant, he himself was examined as RW-1 and got marked Exs.R-1 to R-60. 8. The Rent Controller, on consideration of the evidence and the material available on record, did not find favour to the petitioner-landlord and, ultimately, dismissed the petition mainly on the ground that inspite of such title dispute and the questions arising and establishing the sale deed in favour of the respondent-tenant, the petitioner-landlord did not approach the Civil Court seeking to declare that he is the absolute owner of the premises, nor he has taken any steps to get the sale deed cancelled even after coming to know about the same. That apart, it is also held that the sale deed registered in favour of the respondent-tenant, in pursuance of the decree in O.S.No.109 of 1998, is valid and unless the said sale deed is cancelled and set aside, it cannot be said that the same is invalid. It was also held that the petitioner-landlord cannot claim ownership purely basing upon the original Will deed in Ex.P-26 unless and until the same is established in a competent Court and therefore, the denial of title of the petitioner-landlord by the respondent-tenant in respect of the petition schedule premises cannot be said to be mala fide. The Rent Controller ultimately held that the petitioner-landlord has not made out any case, in view of the aforesaid findings, to grant eviction. 9. Being aggrieved by the Judgment passed by the Rent Controller, the petitioner-landlord filed an Appeal in R.A.No.190 of 2006 on the file of the Chief Judge, City Small Causes Court, Hyderabad. The Appellate Court, once again, by making an attempt to re-appreciate the evidence and reconsider the denial of title, framed points for determination in Para-9 of the Judgment and held that admittedly Anuradha Bai died intestate and therefore, under Section 15(2) of the Hindu Succession Act, 1956, her heirs alone are entitled to her property and the petitioner-landlord is, accordingly, legally entitled to be her heir and the children of the Ramakrishna Rao Hulsulkar or the respondent-tenant cannot succeed to any of her properties. The fact remains that the Rent Controller cannot go into either the correctness of the Will or the title of the parties over the demised premises. Prima facie, in view of the provisions as mentioned above, the petitioner-landlord alone is the owner and not any of the children of Ramkrishna Rao Hulsulkar born through his first wife. Therefore, any amount of attempt made on behalf of the respondent-tenant in trying to purchase the property under an agreement of sale followed by a decree in a suit for specific performance is null and void. Since the very vendors of the respondent- tenant are not having any valid enforceable title over the petition schedule premises, the respondent-tenant himself would not get any such right. Thus the claim of the respondent- tenant is not a bona fide, but is only a mala fide attempt on his part to grab the said property. It is also held that admittedly the respondent-tenant has been paying the rents to the father of the petitioner-landlord, who is legally entitled to, and suddenly he stopped the payment only after the alleged agreement of sale under Ex.P-47 brought into existence. Therefore, the nonpayment of the rents is not only default, but willful default on the part of the respondent-tenant. Hence, the respondent- tenant is liable to be evicted from the petition schedule premises and accordingly, the Appeal was allowed ordering eviction of the respondent-tenant. Hence, the present Revision. 10. Heard Ms. Manjari S. Ganu, learned counsel appearing for the petitioner and Sri R.A. Achuthanand, learned counsel appearing for the respondent. 11. Though several contentions are sought to be urged on behalf of both sides, after going through the entire evidence and the material on record, the point that arises for consideration in this Revision Petition is whether the order of eviction passed on the ground of existence of mala fide denial of title and also willful default in payment of rents is sustainable? 12. The Appellate Court has taken into consideration the fact that admittedly the respondent-tenant was paying rents to the father of the petitioner-landlord and suddenly stopped, which was followed by an agreement of sale, and held that there is a clear default on the part of the respondent-tenant, and in view of the attempts made by him to grab the property, by way of an agreement of sale, decree for specific performance and the sale deed, denial of title is not bona fide, but mala fide and the existing default is clearly a willful one. Such clear finding of fact cannot be gone into while exercising the powers under Section 22 of the Rent Control Act. Even otherwise, it has not been pointed by the learned counsel for the petitioner as to how the said finding, which was purely based on the admitted evidence and the material available on record, suffers from any infirmity so as to warrant any interference by this Court. 13. While coming to the question whether the petitioner- landlord can be construed as the owner of the petition schedule premises or the children of the Ramakrishna Rao Hulsulkar, born through his first wife, can be construed, as claimed by the respondent-tenant, it would suffice in the interest of justice to fall back on the well established principle that the Rent Controller has no authority to go into these questions in view of the limited jurisdiction. Since it squarely touches the title, it would suffice to say that admittedly the respondent-tenant was paying rent to the petitioner’s father and there is no justification on his part in stopping the payment suddenly and he entered into an agreement as contended by him. Therefore, in the absence of any explanation forthcoming from the respondent-tenant, it cannot be said that there was any justification behind the said manner. Further as far as the provisions of the Rent Control Act 15 of 1960 is concerned, the definition of the ‘landlord’ sufficiently includes even the person who receives the rents. Therefore, for the purpose of the present proceedings, it would be suffice to consider that the petitioner is the landlord for laying the petition for eviction. 14. Across the bar, the learned counsel appearing for the petitioner herein cited the following decisions: In AYI AMMAL v. SUBRAMANIA ASARI [1], while interpreting Section 15 (1) (b) and 15 (2) (a) of the Hindu Succession Act, 1956, it was held that in a case where the property was gifted to woman by her parents and the woman died intestate, Section 15 (1) will govern the case. In O.M. MEYYAPPA CHETTIAR v. KANNAPPA CHETTIAR [2], once again, interpreting Section 15 (1) and (2) of the Hindu Succession Act, it was held by a learned Single Judge that in a case where the amount was gifted to a female at the time of her marriage, sub-section (2) has no application. I n AMAR KAUR v. RAMAN KUMARI [3], once again, considering Section 15(1) and (2) of the Hindu Succession Act, it was held that in a case where the property was gifted by mother before coming into force of the Act and succession to her estate on her death was subsequent to coming into force of the Act, Section 15(2) was held not applicable. I n V. DANDAPANI CHETTIAR v. BALASUBRAMANIAN CHETTIAR (DIED) BY LRS [4], the Hon’ble Supreme Court, while considering Section 15(2)(a) of the Hindu Succession Act, held that when the female, who got the properties from her parents, died leaving no issues of her own, only the heirs of the father are entitled to succeed to the said properties. I n PAMULAPATI VENKATA SUBBAMMA v. GOGINENI VEERAIAH (DIED) PER L.RS. [5], a Division Bench of this Court, while considering Section 15 of the Act, held that the Rule of Succession should be governed on the facts of the case depending on several circumstances. 15. Since the facts of the above decisions are totally different from the facts of the present case, it is not necessary to delve into those decisions. 16. The learned counsel appearing for the respondent herein cited the following decisions: I n B. BRAHMAYYA v. P.R. KRISHNA MURTHY [6], considering the provision of Section 10(2)(vi) of the Rent Control Act, it was held that in a partition between the present landlord and his brother, original landlord, after partition, when the tenants were paying rent to the present landlord, denial of title of the present landlord to the demised premises is mala fide and the tenants are liable to be evicted. I n CHUNNU BAI v. K. RAMULU [7], the facts are that the building was originally constructed as one structure consisting of a residential house with a shop room in the front side, which is demised premises. The original owner sold away the demised premises to one person and later sold away the residential house to landlady. Afterwards, the landlady purchased the demised premises also. The structure of both the premises is one and the same, though occupied by different owners for sometime. In those circumstances, it was held that the landlady has to prove that the building was in occupation of the tenant in part. I n JAIKARAN SINGH v. S.R. AGARWALLA [8], the Patna High Court tried to define the eviction by title paramount. In S. THANGAPPAN v. P. PADMAVATHY [9], considering the provisions of T.N. Buildings (Lease and Rent Control) Act, on the facts of the case, it was found that the default was willful and the denial of title against the landlord from the very inception is forbidden by Section 116 of the Indian Evidence Act. In SREERAMULU v. VENKATESWARA RAO [10], a Division Bench of this Court, while considering the provisions of Section 116 of the Indian Evidence Act, held that the tenant, without surrendering possession, if can be permitted to deny the title of his landlord, notice to quit by landlord to tenant. The protection given to landlord under Section 116 does not come to an end and the bar of estoppel continues. 17. On a total appraisal of the principles laid down in the aforesaid decisions, in my considered opinion, they have no direct bearing on the facts of the present case. The fact remains that prima facie even on a reading of Section 15 of the Rent Control Act, the respondent-tenant having paid the rents to the father of the petitioner-landlord, it is not open for him to deny the title of the petitioner-landlord or to claim the title by himself by way of another channel which was, prima facie, found to be untenable. 18. In view of the above circumstances, the Appellate Court rightly allowed the Appeal ordering eviction of the respondent-tenant and there are no merits in this revision and it is liable to be dismissed. 19. The Civil Revision Petition is, accordingly, dismissed. One month time from today is granted to the petitioner herein to vacate the petition schedule premises. No order as to costs. ________________ B. PRAKASH RAO, J Date: 08-10-2010 YCR [1] AIR 1966 MADRAS 369 [2] AIR 1976 MADRAS 154 [3] AIR 1985 PUNJAB AND HARYANA 86 [4] 2003 (5) ALD 77 (SC) [5] 2003(2) ALT 4 (D.B.) [6] 1997 (2) ALT 805 [7] 1997 (5) ALT 785 [8] AIR 1974 PATNA 364 [9] AIR 1999 SC 3584 [10] 1959 ANDHRA WEEKLY REPORTER 148