IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.S.APPA RAO CIVIL REVISION PETITION No.2161 of 2003 Date:02.09.2011 Between: Khadeer Khan .....Petitioner AND Asghari Begum @ Asghari Sultana and another ....Respondents THE HON'BLE SRI JUSTICE K.S.APPA RAO CIVIL REVISION PETITION No.2161 of 2003 ORDER: 1. This Civil Revision Petition is filed under Section 22 of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short, the Act) against the order dated 27.01.2003 in E.A.No.118 of 1996 in E.P.No.37 of 1996 in R.C.No.575 of 1995 on the file of Principal Rent Controller, Hyderabad. 2. The Revision Petitioner is the petitioner in E.A.No.118 of 1996 in E.P.No.37 of 1996 in R.C.No.575 of 1995. The learned Principal Rent Controller, Hyderabad, after due enquiry dismissed the claim petition filed by the petitioner on the ground that the petitioner has not proved any right independently except though judgment debtor and the petitioner is not entitled for any resistance or obstruction to the delivery of the possession of the suit schedule property and for restoration of the possession of the suit schedule property by the 1st respondent. Being aggrieved by the same, the present C.R.P. is filed. 3. The petitioner has filed a claim petition before the trial court under Rule 23(7) of A.P. Building (Lease, Rent and Eviction) Control Rules, 1960 to declare the order passed in R.C.No.575 of 1995 has not binding on him and to restore possession of the suit portion and other portions grabbed by the 1st respondent and for costs. 4. The learned counsel appearing for the Revision Petitioner is mainly argued that the court below erred in dismissing the application totally ignoring the observation made in the order dated 07.03.2001 in C.R.P.No.4720 of 1999 and the court below ought to have seen that Rule 23(7) of the Act is similar to Order XXI Rule 97 C.P.C and that the court ought to have noticed that the issue to be considered as to whether there is any obstruction to the delivery of the possession that whether the said obstruction is claiming independently or through the judgment debtor. It is also further urged that the court below ought to have seen that assuming for the sake of argument without conceding that the petitioner had no title to the property, still the tenant inducted by him should have delivered possession of the property to the petitioner and 1st respondent colluded with 2nd respondent and played fraud on the court and took possession of the property under the guise of the decree passed by the Rent-Controller against the 2nd respondent. 5. Now the point that arises for consideration is whether the order of the lower court is sustainable? 6. The present C.R.P is filed challenging the order dated 27.1.2003 in E.A.No.118 of 1996 in E.P.No.37 of 1996 in R.C.No.575 of 1995 on the file of Principal Rent Controller, Hyderabad. The petition schedule premises is H.No.10-5-244, Ahmed Nagar, 1st lancer, Hyderabad. This property originally belongs to Noor Khatoon sister of the petitioner and that on 5.9.1985, this property was sold to him by his sister under Ex.A.8. Prior to this, she had gifted this property in favour of her daughters Asghari Begum (R.1), Akhtar Begum, Zahera Begum and Afsari Begum under Exs.A.1 to A.3 respectively. Subsequently, these three gift deeds were cancelled by Noor Khatoon under Exs.A.4 to A.7 dated 3.9.1985 respectively. The petitioner herein purchased the property from his sister Noor Khatoon under the Registered sale deed Ex.A.8 dated 5.9.1985. The petitioner, thereafter, inducted the 2nd respondent as his tenant in August, 1991 on a monthly rent of Rs.550/- per month and the premises let out consisted of two rooms in the above premises. In the other portions of the premises the petitioner is residing. The respondents conspired together to cause wrong full loss to the petitioner and in pursuance of the said conspiracy, 1st respondent filed an eviction petition against the 2nd respondent in R.C.No.575 of 1995 on the file of Principal Rent Controller, Hyderabad showing 2nd respondent as her tenant. The case was posted for the 1st appearance of 2nd respondent on 30.10.1995 initially but later advanced to 11.10.1995 and on that date a consent order was passed giving time to 2nd respondent to vacate by 26.10.1995. On 24.10.1995, the 2nd respondent was shifting articles from the portion and so the petitioner inquired from the 2nd respondent as to why he was removing the articles. The 2nd respondent then replied that he is vacating the premises and handed over possession thereof to the petitioner. On 18.12.1996, the Bailiff of the court by name Ghousuddin and Yousuf Ali came to the premises along with Zehara Begum, one Zahooruddin and another with the warrant of execution and inspite of the petitioners objection, they forcibly evicted the petitioner by breaking open the lock on the door of the premises. It seems there was an obstruction by the petitioner for execution of the warrant. Inspite of it, the Amin forcibly break open the lock. The trial court initially dismissed E.A.No.118 of 1996 in E.P.No.37 of 1996 in R.C.No.575 of 1995 by its order dated 20.10.1998 and aggrieved thereby, the petitioner filed C.R.P.No.4720 of 1999 before this Court and the same was allowed by this Court on 7.3.2001 and the matter was remanded back to the trial court to reconsider afresh. On remand, the trial court again rejected the said E.A. Aggrieved thereby, the present C.R.P is filed. At this juncture, the order of this Court in C.R.P.No.4720 of 1999 dated 7.3.2001 assumes paramount importance. 7. “This Court held that the prime fact which is to be determined is as to whether the 2nd respondent is a tenant of the revision petitioner or the first respondent. It was also held that in a petition under Order XXI Rule 23 of the Act, which is to akin to Order XXI Rule 19 of C.P.C. Enquiry is limited to only one fact. There is obstruction to deliver possession and whether the said claim is through independently or through the judgment debtor. The said finding has to be given by the executing court and the said provision has been incorporated to avoid multiplicity of the litigation. It is also pertinent to mention that even if one’s possession is illegal or even one is not having title to the property, if a tenant has been inducted by the said person, this application of the tenant to hand over the possession of the person who inducted him as a tenant and the tenant cannot turn back and plead his ignorance which is estopped under Section 116 of the Indian Evidence Act, and this is a clear cut finding lacking in the impugned order. In the circumstances, the order dated 27.01.2003 passed in E.A.No.118 of 1996 in E.P.No.37 of 1996 in R.C.No.575 of 1995 by the Principal Rent Controller, Hyderabad is set aside and the matter is remitted back for fresh disposal. The Principal Rent Controller, Hyderabad is directed to issue notices to either party. The High Court also recorded that while parting with the case, it is noted with dissatisfaction the way in which the proceedings were hustled through before the Rent Controller as the eviction petition which was posted for the first appearance of the 2nd respondent on 30.10.1995 had been advanced to 11.10.1995 on which date consent order was passed giving time to the 2nd respondent to vacate by 26.10.1995. What is more intriguing is that when the door was locked, which shows that there was obstruction to the delivery a petition for breaking open the lock was entertained and also ordered without even application of mind as to whether a notice should be issued to any party who is said to have obstructed the delivery of possession by locking the premises”. 8. Inspite of the aforesaid positive finding and direction given by the this Court, the Rent Controller without applying its mind passed the same order which is contrary to the provisions as contemplated under Order XXI Rule 9 C.P.C. Therefore, the impugned order under Revision lack of proper appreciation of evidence as it is a clear cut case that the 1st respondent colluded with the 2nd respondent and played fraud on the court and take possession of the property under the guise of the decree passed by the Rent Controller, Hyderabad, as against the 2nd respondent. The Court below ought to have seen that the collusion between the respondents 1 and 2, is apparent from the fact that in the R.C., the first date of appearance of 2nd respondent was fixed as 30.10.1995 and it was advanced to 11.10.1995 and on that date an alleged consent decree was passed giving time to the 2nd respondent to vacate by 26.10.1995 which he did. It also shows the fraud played on court by the respondents 1 and 2 with a view to deprive the petitioner of his property. Further, the Court below ought to have seen that the lock on the premises was put by the petitioner after the 2nd respondent vacated the premises on 24.10.1995 and so notice in the E.P., and in the application to break open the lock ought to have been given to the 2nd respondent. The decree in R.C.No.575 of 1995 could not be executed to evict the petitioner as there is no jural relationship of Land Lord and Tenant between the 1st respondent and the petitioner. In any view of the matter, the order dated 27.01.2003 in E.A.No.118 of 1996 in E.P.No.37 of 1996 in R.C.No.575 of 1995 passed by the Principal Rent Controller, Hyderabad is not sustainable, contrary to the mandatory provisions as contemplated under Order XXI Rule 97 of the Act and the same is set aside. However, the Principal Rent Controller, Hyderabad, shall take up the trial of the matter as expeditiously as possible by giving opportunity to both parties and pass necessary orders as per law. 9. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 27.01.2003 in E.A.No.118 of 1996 in E.P.No.37 of 1996 in R.C.No.575 of 1995 passed by the Principal Rent Controller, Hyderabad, and the matter is remitted to the trial court, for disposal in accordance with law. There shall be no order as to costs. _________________ K.S.APPA RAO,J Date:02.09.2011. Gk THE HON'BLE SRI JUSTICE K.S.APPA RAO CIVIL REVISION PETITION No.2161 of 2003 Date: 02.09.2011 Gk.