HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P.No. 4624 of 2009 Date: 23-06-2010 Between: Perla Raja Rao (died) and others ……….. Petitioners and Sri Poleramma hundi Seva Sangham ………. Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P.No. 4624 of 2009 ORDER: This Revision Petition is directed against the decree and order, dated 28-07-2009 in R.C.A.No.5 of 2007 passed by the Principal Senior Civil Judge-cum-Appellate Court of Rent Controller Cases at Visakhapatnam, whereby and whereunder the Appellate Authority dismissed the Appeal confirming the order, dated 04-06-2007 in R.C.C.No.13 of 2001 passed by the Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam, ordering eviction of the petitioners herein. The parties will be referred to as they arrayed in R.C.C.No.13 of 2001. 2. The brief facts of the case are as follows: The petitioner-Sri Poleramma Hundi Seva Sangham, represented by its President M. Narasinga Rao, filed the petition under Section 10(2)(i) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, seeking eviction of the respondents from the portion of the petition schedule property, for costs and such other reliefs, with the following averments: The premises consisting of small shop rooms constructed in 1968 bearing D.No.32-1-66 belong to Poleramma Deity. Earlier the property was being managed by Sri Seetha Rama Bala Bhakta Samajam (hereinafter referred to as ‘Samajam’) and presently it is being managed by a registered society known as Sri Poleramma Hundi Seva Sangham. The said property is assessed to property tax by Visakhapatnam Municipal Corporation in the name of the said Samajam. The said Samajam obtained electricity connection in its name. The said Samajam was locally called as Poleramma Grama Committee and Poleramma Hundi Grama Committee, represented by it’s the then President/Secretary/Member and they leased out the said shop rooms to various tenants on monthly rents and the respondents are such tenants to one of the shop rooms of the said Samajam on a monthly rent of Rs.50/- during 1999. The first respondent is no more and his Legal Representatives, R-2 to R-6, were brought on record during the pendency of RCC. It is oral tenancy. The further case of the petitioner is that the first respondent failed to pay rents from August, 2000 onwards till the date of filing of the petition. Then the petitioner issued a notice to the first respondent claiming arrears of rents and demanding to vacate the premises. The first respondent sent a reply with all false allegations. Thus the petitioner sought for eviction of the first respondent on the ground of willful default in payment of rent. It is also contended that refusal of the first respondent to pay the rents amounts to willful default. 3. The first respondent filed counter denying material averments made by the petitioner. His main case is that the Samajam was brought into existence by himself alone in his personal capacity out of his own interest in the year 1968 and it was never a Samajam. His specific case is that he himself constructed the building bearing D.No.32-1-66 with sub-door numbers with his own financial resources, only for the purpose of eking out his livelihood by leasing out portions of the said building to outsiders and to run a club for the local youth. It is also his case that the said Samajam had no members and it was not registered. It is also his case that he was collecting rents from other tenants and thus there was no lease agreement between the petitioner and the first respondent and there was no occasion and necessity for him to pay rents to the petitioner. It is also his case that M. Narasinga Rao, who is representing the petitioner, and his associates, failed to furnish the accounts for the amount collected by them and only to harass him the eviction petition has been filed. It is also his case that Sri Poleramma Hundi Seva Sangham was brought into existence by the said Narasinga Rao and others on 07-11-2000 in a collusive manner for the purpose of initiating litigations and that there was no cause of action to file the petition. 4. On behalf of the petitioner, PWs.1 to 5 were examined and Exs.A-1 to A-54 were marked. PW-1 is the president of the Sangham, PW-3 is the Treasurer of the Sangham, PW-4 is the Treasurer of Vadabalija Sangham and PW-5 is the President of Sri Polamambeswari Sankshema Mahila Mandali. On behalf of the respondents, RWs.1 to 3 were examined and Exs.B-1 to B-7 were marked. 5. The learned Rent Controller framed the point whether the petitioner is entitled for eviction of the respondents from his schedule property as prayed for. After considering the evidence on record, the learned Rent Controller found that the Samajam is to be treated as a public body and that the respondents failed to prove that the first respondent was alone the member in the said Samajam and that there was no members in it. The learned Rent Controller has relied on the oral evidence of PWs.1 and 2 and Ex.A-42, photographs filed along with negatives, in which the first respondent himself was shown as sitting in the chairs of the first row at third place from left to right and it was a group photo with a back drop banner of the Samajam. The learned Rent Controller also observed that the respondents did not file the photo of Raja Rao (R-1) to prove their contention that R-1 was not in Ex.A-42, photo. The learned Rent Controller, while referring to Ex.B- 1, observed that Sri P. Raja Rao, the first respondent, was shown as President of the Samajam in Ex.B-1 and that all the documents are issued in his name as President of the Samajam. Referring to Ex.B-3, approved plan, it is observed that the said plan was prepared only in the name of Samajam and not in the name of R-1. The tax receipt is also in the name of the President of Samajam and not in the name of P. Raja Rao (R-1). The number of tax receipts and demand notices marked on behalf of the petitioner also show that they are all issued in the name of Secretary of the Samajam. Thus a prima facie finding has been given by the learned Rent Controller that the denial of title of the petitioner by the respondents is not bona fide. The entire evidence has been discussed by the learned Rent Controller and finally allowed the petition directing the respondents to vacate the petition schedule property within one month from the date of the order. 6. Challenging the same, the respondents filed R.C.A.No.5 of 2007. The Appellate Authority found that there is jural relationship of landlord and tenant between the parties and that the denial of title of the petitioner/landlord by the tenant is not bona fide and that not paying rents by the tenant denying the title of the petitioner is itself sufficient ground for ordering eviction. The Appellate Authority has also discussed the oral and documentary evidence. It was also observed that the conduct of the respondents in denying the presence of R-1 in Ex.A-42, photo, indicates their dishonest nature to deny the existence of Samajam and its members from several decades. It is also observed that though RW-1 denied the presence of his father in Ex.A-42, he failed to produce old photo of his father, which he claims tobe in his possession, for the reasons known to him. The number of tax receipts and demand notices filed by the petitioner have been discussed. The records produced by the petitioner with regard to the meeting held by Poleramma Grama Committee from 1990 onwards were also discussed and it was observed that these records reveal that R-1 acted as one of the members of the committee and signed in the proceedings, which indicate the existence of Samajam and its subsequent conversion into Poleramma Grama Committee. Thus the Appellate Court also found that the respondents miserably failed to prove that the schedule property was owned by the first respondent and that the finding of the Rent Controller that the denial of the petitioner’s title by the respondents is not bona fide and that the respondents have committed default in payment of rents was correct and based on proper appreciation of evidence. With those findings, the Appeal was dismissed. Being aggrieved by the same, the present Revision Petition is filed. 7. The main contention of the learned counsel for the respondents/petitioners herein is that there is no specific finding given by the Courts below about the alleged commencement of tenancy and also about the quantum of rent and did not record any specific finding about the default of rents for a period of five months as claimed by the petitioner. It is also argued that the petitioner has not taken any subsequent default as a ground for eviction either by filing a petition under Section 11(4) of the Act or by making any amendment to the petition taking subsequent default as a ground. It is also argued that when the title of the petitioner has been specifically denied and the petitioner has not taken his specific ground under Section 10(2)(iv) of the Act, the order of eviction is illegal and without jurisdiction. It is further submitted that when the petitioner has not sought the eviction on the ground of denial of title, the Courts below ought not have passed the order of eviction. It is further argued that the Rent Controller cannot go into the series and complicated disputes of title and the Courts below ought to have directed the parties to go to the civil Court for establishing their title and for recovery of possession. It is also contended that the first respondent, P. Raja Rao, had let out portions of the building to different tenants and it shows that he had title to the property. It is also argued that the address of the registered Sangham shows different door number and different property, whereas in the petition the schedule property is D.No.32-1-66 and therefore, the petitioner has nothing to do with the petition schedule property. It is further argued that the Rent Controller had made inconsistent observations with regard to the schedule property. It is also argued that the respondents/petitioners herein have filed O.S.No.872 of 2007 seeking declaration of their title and for permanent injunction against the petitioner and therefore, the Courts below have no jurisdiction. The learned counsel for the respondents/petitioners herein has relied on the following decisions: VINOD KUMAR v. SURJIT KAUR [1], G. BHAVANI SANKAR v. B. RAJESWARA RAO [2], and VINUKONDA VENKATA RAMANA v. MOOTHA VENKATESWARA RAO [3]. 8. The learned counsel for the petitioner/respondent herein submitted that the documents filed by the respondents themselves show that the property belongs to the petitioner and the same was also recorded in the records of the Municipal Corporation, Visakhapatnam. It is further submitted that merely because the first respondent was the President of the Samajam once upon a time, he cannot grab the property and deny the title of the petitioner and commit default in payment of rents. He further submitted that the suits filed by the first respondent claiming title and eviction of other tenants have been dismissed and this shows that the respondents have no title to the properties. It is his further submission that the scope of enquiry in revision is limited and that the Courts below have categorically held that the respondents have no title and they have committed default in payment of rent and in the above circumstances, there is nothing to interfere with the reasoned orders passed by the Courts below. In support of his contentions, the learned counsel has relied on J.J. LAL (P) LTD. v. M.R. MURALI [4]. 9. In view of the rival contentions, the points that arise for consideration are: 1. Whether the Courts below are justified in holding that the denial of title of the petitioner by the respondents is not bona fide?; and 2. Whether the Courts below committed any error or illegality and whether their findings are perverse? POINT NOs.1 & 2: 10. Section 22 of the Act deals with Revision. The High Court may at any time on the application of any aggrieved party, call for and examine the records relating to any order passed by or proceeding taken under the Act for the purpose of satisfying itself as to the legality, regularity or of propriety of such order. It is the settled legal position that the powers conferred on High Court under Section 22 of the Act are not narrow. However, unless the findings of the Courts below are perverse and not based on record and totally unreasonable, revisional powers cannot be exercised. It is not the case of the respondents/ petitioners herein that there was any misreading of evidence or that the Courts below had not taken into consideration any material evidence or that the findings are not based on record. 11. The learned counsel for the respondents/petitioners herein submitted that the Courts below ought not have held that the respondents committed default in payment of rents subsequent to the filing of the eviction petition and on that ground, the eviction order was passed. His main submission is that the petitioner has not made any application as required under Section 11 of the Act. 12. In the decision relied on by the learned counsel for the respondents/petitioners herein in VINUKONDA VENKATA RAMANA’case (3 supra), it was held that: “The question whether default made subsequent to the filing of the eviction petition can be made a ground for ordering eviction is answered in affirmative subject to the fulfillment of conditions laid down in Section 11 of the Act.” 13. First of all, it has to be seen that on what ground the eviction order has been passed. The learned Rent Controller held that the contention of the respondents that they are the owners of the schedule property and that they need not pay any rents indicate that they are not paying rents in respect of the schedule property and their failure to pay rents tantamounts to committing willful default in payment of rents. Referring to certain decisions relied on by the parties, the learned Rent Controller observed as follows: “Amongst various decisions relied upon the learned counsel for petitioner the decision reported in 1997 (4) ALT Page 1 held in the case of N. Ananda Rao Vs. P. Naga Anjeswara Rao wherein it was held that subsequent default in payment of rents can be made a ground for eviction and the decision reported in 1988 (2) ALT 105 held in the case of Kedar bhatia Vs. Lingarkar panduranga Rao (since died) and others wherein it was held that if the denial of the title of the landlord is not bonafide and as the tenant admittedly had not paid rents his failure to pay the rents constitutes willful default in payment of rents, thus rendering him liable for eviction on that ground, are enough to hold that the respondents herein have committed willful default in payment of rents and therefore are liable for eviction.” Thus it has to be seen that the eviction order was passed for committing willful default in payment of rents. Therefore, it cannot be said that the eviction order was passed solely on the ground of non- payment of rents, subsequent to the filing of the eviction petition, there was no such issue whether the default made subsequent to the filing of the petition can be made as a ground for ordering eviction. 14. The learned counsel for the respondents/petitioners herein relied on VINOD KUMAR’s case (1 supra) in support of his contention that where the orders of the Rent Controller and Appellate Authority are based on conjectures and surmises, such orders have to be set aside. 15. I have gone through the entire evidence on record. The findings of the Courts below are based on well reasoning and on appreciation of oral and documentary evidence, and there is nothing on record to say that those findings are based on conjectures and surmises or that the Courts below have lost sight of the relevant piece of evidence. 16. It is further argued that the petitioner has given up the original case and set up another premises. The original case of the petitioner is that he is the owner of the premises bearing D.No.32-1-66 and that there are several shop rooms in the said building and those shop rooms had been leased out to various tenants on monthly rent and that the respondents are one of such tenants to one of such shop rooms. 17. During the pendnecy of the petition, the petitioner filed an amendment petition and got amended the boundaries and added the words ‘a pan shop’. It appears that initially the boundaries of the entire building were given which was having several shops, though it is specifically mentioned that only one of such shops was leased out to first respondent. For the purpose of identification, specific boundaries have been given in the schedule and the shop leased to the respondents was specifically shown as pan shop. Admittedly no Appeal was filed challenging the order in I.A.No.193 of 2005, dated 07-05-2005 by which amendment was carried out and merely because specific boundaries have been shown in the schedule of properties, it cannot be said that the petitioner had given up their original case and set up a new case. 18. In the decision relied on by the learned counsel for the respondents/petitioners herein in VINOD KUMAR’s case (1 supra), the tenant has taken a plea that the hall was let out for his residential use as well as for running a clinic and during enquiry he had taken a plea that the hall was taken on rent only for running his clinic and not for his residential needs. Therefore, it is clear that on facts the above decision can be distinguished. 19. In J.J. LAL PVT. LTD.’s case (4 supra), the Apex Court held that where the tenant has denied the title of the landlord, the landlord would amend their application and then seek eviction on that ground also. But, in the present case, admittedly, the respondents had denied the title of the petitioner. However, the petitioner has filed petition under Section 10(2)(i) of the Act and sought eviction of the respondents on the ground of willful default. 20. A reading of the orders of the Courts below go to show that the Courts below have dealt with the issues whether the denial of title of the petitioner by the respondents is bona fide or not, but that does not mean the eviction was ordered on the basis of denial of title by the respondents. The finding of the Courts below is that the denial of the title of the petitioner by the respondents over the schedule property is not bona fide one and that the respondents willfully committed default in payment of rent. It is clear that the eviction order was not passed on the ground of denial of title by the respondents but on the ground of willful default in payment of rent. 21. As far as the argument of the learned counsel for the respondents/petitioners herein that the Courts below ought not have enquired about the title of the parties and ought to have left the matter to be decided by the Civil Court is concerned, the legal position is well settled. Proviso to sub-section (1) of Section 10 of the Act is as follows: “10. Eviction of tenants: (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13. Provided that where the tenant, denies the title of the land- lord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the land-lord 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, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.” In view of the above provision, what the Rent Controller has to do is he should decide whether the denial of title of the petitioner by the respondents is bona fide or not. Once he comes to conclusion that the denial of title of the landlord (petitioner) is bona fide, then the landlord (petitioner) has to approach Civil Court for seeking a decree of eviction on the ground of denial of title and on other grounds, as envisaged under sub-section (2) of Section 10 of the Act. 22. In this case, admittedly the respondents have denied the title of the petitioner. But both the Courts below have categorically held that even the documents filed by the respondents go to show that the first respondent had obtained permission for construction of the building in the capacity of the President of Samajam and the taxes were paid in the name of the said Samajam and that the municipal records also show that the property has been registered in the name of the petitioner. These prima facie findings clinchingly establish that the denial of title of the petitioner by the respondent is not bona fide. 23. In J.J. LAL PVT. LTD.’s case (4 supra) relied on by the learned counsel for the petitioner/respondent herein, it was observed as follows: “If Controller finds that the denial of title or claim for permanent tenancy of the tenant was not bona fide, he shall order eviction of the tenant but if he finds otherwise, he shall reject the application of the landlord and in that event bar on civil court’s jurisdiction would stand lifted and landlord would become entitled to approach the civil Court to establish his title and seek eviction on any of the grounds on which Controller could have directed eviction.” 24. Thus it is clear that first of all the Rent Controller has to decide whether the denial of title of the landlord by the tenant is bona fide or not, which has been done by the Courts below in this case. 25. Though it is not necessary for the disposal of this Revision Petition, the learned counsel for the petitioner/ respondent herein submits that the first respondent filed R.C.C.No.62 of 2001 and R.C.C.No.17 of 2001 for eviction of his alleged tenants and those petitions were dismissed. It is also submitted that the suits filed by the respondents in O.S.No.2342 of 2002 and O.S.No.2985 of 2002 on the file of the III Additional Junior Civil Judge, Visakhapatnam, for recovery of arrears of rents have been already dismissed. 26. In view of the above discussion, it is held that the Courts below are justified in holding that the denial of title of the petitioner by the respondents is not bona fide and that the respondents committed willful default in payment of rents. It is clear that there is no error or illegality in passing the impugned orders and there are no grounds to interfere with the same. There are no merits in the Revision Petition and it is liable to be dismissed. 27. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. The respondents/petitioners herein are directed to vacate the premises within sixty days from the date of receipt of copy of this order. __________________ B. CHANDRA KUMAR, J Date: 23-06-2010 YCR [1] AIR 1987 SC 2179 [2] 1999 (6) ALT 374 [3] 2001 (6) ALD 27 (FB) [4] (2002) 3 SCC 98