IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEEENTH DAY DAY OF JUNE TWO THOUSAND TEN PRESENT THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR C.R.P.No. 5 1 2 3 OF 2007 Between: M.A. Hameed @ Mohd. Chand Pasha died per LRs & Ors. … Revision Petitioners V/s. Raheemunnisa Begum @ Mallika Banu & Anr. … Respondents Counsel for the Revision Petitioners: Sri Shyam S. Agarwal Counsel for the Respondents : Sri Osman Shaheed Sri Md.Moin Ahmed Quadri Sri G.S. Prakash Rao THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR CRP.No. 5 1 2 3 OF 2007 O R D E R : This Civil Revision Petition is preferred by the decree-holders against the order of learned Rent Controller, Secunderabad, dated 03-10-2007 in allowing the claim-petition filed by the first respondent, i.e., EA.No.41 of 2006 in E.P.No. 21 of 1997 in RC.No.26 of 1993. 2. The respondent No.2 herein was the original tenant against whom the petitioners obtained a decree for eviction. He is, therefore, formally shown as party and the contesting parties before the court below and this court are only the petitioners and first respondent. 3. The facts in brief are as follows: The deceased petitioner herein, who is now represented by the legal representatives, filed RC.No. 26 of 1993 against the second respondent contending that the second respondent is the tenant in a portion in premises No. 8091 (old) corresponding to new number 5-1-11 and 17 situate at Rashtrapathi Road, Secunderabad. It was alleged that the said tenant has committed wilful default in payment of monthly rent from January 1987 to June, 1993. It was also alleged that he un-authorisedly sublet the petition-schedule premises and is liable to be evicted on both the said grounds. The schedule of the premises was shown as follows: “All that portion of premises bearing No. 8091 (old) and new 5-1-11 and 17 in the first and second floors situate at Rashtrapathi Road, Ghans Mandi, Secunderabad …… ” The said eviction petition was filed on 12th February 1993 and as the tenant remained ex-parte, the learned Rent Controller recorded the evidence of PW.1 on behalf of petitioners and by upholding both the grounds of wilful default and subletting, ordered eviction. Since the premises was not vacated by the tenant within time permitted in the eviction order, the deceased petitioner originally filed EP.No.21 of 1997 on which warrant of possession was given on 01-10-1997. The bailiff’s report dated 14-10-1997 stated that when they went for execution one Advocate came to the spot and observed warrant and handed over vacant possession of two rooms on north-eastern side on the first floor. It is further stated that the husband of the first respondent herein, who claims to be in possession of rest of the portion of the schedule premises requested to grant one week time for handing over rest of the portion and gave undertaking signed by the husband of the first respondent and all her sons dated 14-10-1997. The record shows that thereafter the husband of the first respondent filed claim petition, EA.No. 60 of 1997 before the learned Rent Controller claiming that he is in possession in his own right and that without making him a party, the petitioners have obtained eviction orders, and as such, resisted the execution of the said eviction decree with regard to rest of the schedule premises. After due enquiry, the learned Rent Controller dismissed the E.A. by order dated 10-10-2006 and the said order has attained finality. The petitioner and her husband thereafter filed OS.No. 11 of 1998 before the learned XII-Additional Senior Civil Judge, (Fast Track Court), Secunderabad for the following reliefs: “to declare that the plaintiffs are owners of the suit premises and for costs” The schedule of the premises mentioned in the said suit was as follows: “All that premises bearing No. 5-1-11 and 17 (old No.8091) consists of six rooms in the first floor and second floor and two halls CWC both situate at old Ghans Mandi, Secunderabad ………” The said suit was filed by the first respondent and her husband by claiming that the old building No.8091 belonged to and stood in the name of the grandmother of the plaintiff and the defendants. It was further alleged that the defendant i.e., the predecessor of the petitioner herein along with the said grandmother of the first respondent mortgaged the said property by executing the sale deed in the year 1957 in favour of one Simratmal Alam Chand and Sons for the purpose of performing marriage of the first respondent herein. Later the predecessor of the petitioner obtained re-conveyance of the sale deed in his name in 1968 and though the first respondent did not take any steps and though the first respondent, who was residing with her husband after marriage, on account of their poor financial status, the predecessors of the petitioners allowed the first respondent to reside in a portion of the schedule premises. The first respondent and her husband therefore claimed title on the basis of adverse possession and to substantiate their possession relied upon passport, ration card and birth certificate of their children. The said suit also made reference to RC.No. 26 of 1993 and eviction orders passed therein including the claim petition filed by the husband of the first respondent and claiming that the first respondent and her husband have acquired prescriptive title sought declaration with respect to the aforesaid schedule premises. The learned trial court negatived the plea of adverse possession pleaded by the first respondent and dismissed the suit under judgment and decree dated 19-9-2006. 4. It is contended by the learned counsel for the first respondent that an appeal against the said judgment and decree was filed with a delay condonation petition and the same is still pending at the S.R. stage. While so, the first respondent herein filed the present claim petition, EA.No.41 of 2006 in December, 2006. 5. The main averments in the claim-petition are that: The first respondent herein is the absolute owner and possessor of the schedule premises as a successor to the original owner. It was also claimed that the decree- holder being the real brother of the first respondent played fraud on the court in filing RC.No. 26 of 1993 against the second respondent and obtaining eviction decree without making the first respondent as a party. It was also alleged that the E.P. schedule premises has been sold to a company under a registered sale deed dated 07-7-2006 by the decree-holder and, as such, the petitioners herein are not having any locus standi to continue the execution proceedings. It was alleged that without making first respondent as a party, the eviction proceedings are filed in collusion with the second respondent and eviction decree is obtained whereby the bailiff came to the suit schedule premises for execution and thereafter the husband of the first respondent filed the claim petition on 15-10-1997, which is earlier referred to as E.A.No.60 of 1997. The first respondent, therefore, asserted that she has documentary evidence to establish that she is in possession of the EP schedule property since 1958 without any interruption and that claim petition filed by the husband of the petitioner, EA.No.60 of 1997 though dismissed by the learned Rent Controller, the C.R.P. filed against the same bearing No.5046 of 2006 was withdrawn by the husband of the first respondent with liberty to file fresh claim-petition and thereafter the present claim petition is filed. The order of withdrawal of the said Civil Revision Petition passed by this court dated 08-12-2006 reads as follows : “Learned counsel for the petitioner seeks permission of this court to withdraw the Civil Revision Petition with liberty to seek any other remedies that may be available to him in law. Permission is accorded. The Civil Revision Petition is dismissed as withdrawn granting liberty as sought for.” The present claim petition was opposed by the petitioners by contending that the claim petition is a gross abuse of law and is filed merely to drag on the execution proceedings and the claim made by the first respondent is a repetition of claim made earlier by her husband and as well as by both of them respectively in EA.No.60 of 1997 as well as suit filed by first respondent and her husband in OS.No.11 of 1998 referred to above. It was also pointed out that the first respondent is merely a sub- tenant of the second respondent and hence have no right whatsoever to resist the execution petition. It was also contended that a sub-tenant need not be made a party to any eviction case and, as such, the eviction petition, RC.No.26 of 1993 was filed against the original tenant, respondent No.2 herein on the ground of wilful default and sub-letting and was decreed, as the second respondent did not contest the eviction proceedings. It was also alleged that the first respondent was never in possession and that the eviction decree was already partly executed and after giving undertaking by the husband of the first respondent he had turned round and filed claim petition, EA.No.60 of 1997 and it was rightly dismissed by the learned Rent Controller on 10-10-2006. 6. Before the learned Rent Controller, the first respondent examined her son as PW.1 and marked Exs.P1 to P62. While the petitioner No.3 was examined as RW.1 and marked Exs.R1 to R15. Under the impugned order, the learned Rent Controller held that there is a discrepancy with regard to the suit schedule premises, which bears old No.8091 and that the petitioners herein are unable to satisfy the contention of the first respondent-claim petitioner that she is in possession of the petition schedule property in her own right. The Rent Controller also held that filing of RC.No.26 of 1993 and obtaining of eviction orders by the petitioners amounts to playing fraud on the court, as the first respondent was not made a party. The learned Rent Controller also concluded from the fact that the petitioner- landlord did not file any proceedings for recovery of arrears of rent against Respondent No.2-original tenant shows that fraud is played by them on the court and, as such, the said exparte decree is not binding on the first respondent. The learned Rent Controller also found that since an appeal against the judgment of the civil Court in OS.No.11 of 1998 filed by the first respondent and her husband is pending, the said judgment has not attained finality and the first respondent is justified in making a valid claim and allowed the claim petition. Thus, against the said order, the present Civil Revision Petition is preferred. 7. Sri Shyam S. Agarwal, the learned counsel for the petitioner has contended that the present claim petition filed by the first respondent under Rule 23 (7) of the Rules framed under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for brevity ‘the Act’) is clearly misconceived and is neither bonafide nor obstruction for the execution of the decree can be said to be supported by a just cause. He contends that the first respondent has now filed claim petition after the claim petition filed by her husband was dismissed and after the suit filed by the first respondent and her husband for declaration of title based on adverse possession was also dismissed. He contends that the withdrawal of CRP.No.5046 of 2006 would not amount to withdrawal of the claim petition by the husband of the first respondent and, as such, the findings recorded against the husband of the first respondent in the said claim petition operates as resjudicata. He also submits that the judgment and decree of civil court in OS.No.11 of 1998 categorically negatives the said claim of the plaintiffs therein, which includes the first respondent herein. Further the fact that the first respondent and her husband had claimed title by adverse possession in the said suit, he submits that, it amounts to admitting the title of the petitioners herein, as other wise, the question of adverse possession would not arise. In the light of the dismissal of the said suit, the present claim petition again setting up title as a sharer by the first respondent, is therefore, highly inconsistent and impermissible. He also submitted that the eviction decree was partly executed on 14-10-1997 when two rooms on the first floor were delivered to the petitioners and in view of the undertaking given by the husband and sons of respondent No.1, the rest of the execution was postponed. He relies upon the evidence of CW-1, who was the advocate present on behalf of the first respondent at the time of execution of the warrant on 14- 10-1997 and speaks of the undertaking given by the sons and husband of first respondent. He therefore, points out that the conduct exhibited by the first respondent clearly shows that she is neither bonafide nor there is a just cause for obstruction of the decree in the present case. The learned counsel has criticized the findings of the court below as they are opposed to the record available and submits that the said findings are liable to be reversed in the light of several adjudication already having attained finality against the first respondent. 8. The learned counsel also laid great stress on the limitation aspect to contend that the first respondent’s claim is barred by limitation under Article 137 of the Limitation Act, in view of the fact that she had knowledge of warrant of execution in 1997 itself but whereas the present claim petition is filed in December 2006. The learned counsel also placed reliance upon a decision of the Supreme Court in RAICHURMATHAM PRABHAKAR AND ANR. V/s. RAWATMAL DUGAR[1]., in support of his contention that Article 137 of the Limitation Act would apply to the proceedings under the Act. The earlier decision of the Supreme Court in MUKRI GOPALAN V/s. CHEPPILAT PUTHANPURAYIL ABOOBACKER[2] is relied upon. In addition to that he placed reliance upon three single Judge judgments of this court in B. VITTAL V/s. RAMESH KUMAR[3], BHUDEVI V/s. BHAGIRATHI BAI[4], R. VENKATESHWARLU V/s. VEDAGIRI PADMAVATHAMMA[5], and one more decision of a learned single Judge in LINGAIAH, KISTAIAH, CHENNAIAH V/s. CHILAMPALLI VENKATESHAM AND ANR [6]. 9. On the contrary, Sri Osman Shaheed, the learned counsel appearing for the respondent submitted that the property bearing Plot No.8091, which is the EP schedule property comprising 432 sq.yards originally belonged to one Mohammed Siddiq and thereafter it was succeeded by Bibi Sahiba and Haddu bi and later by son of Haddu bi; namely, Abdul Khader. The said Abdul Khader had a son and daughter by name, M.A. Hameed @ Chand and Smt. Raheemunnisa Begum, first respondent herein respectively. While the legal representatives of the said son, Chand are the petitioners-landlords in the present case; the first respondent is the sister of said Chand. The learned counsel placed reliance on the proceedings of the Cantonment Board to show that adjacent to this plot No.8091, there is another land of 146 sq.yards, which was under lease hold of said Chand and the same was later converted into free hold by said Chand by approaching the Cantonment Board authorities. He therefore submits that to the extent of Plot No.8091, the first respondent is a co-sharer and co-owner and she being in possession, she cannot be evicted by process of a Rent Control Case whereby the legal heirs of Chand secured eviction orders against the second respondent. The learned counsel therefore vehemently submits that the petitioners have played fraud on the Rent Control Court by suppressing from it the vital information of subsisting share of first respondent in the suit schedule property. He also placed reliance upon several documents of the Cantonment Board authorities marked and filed in this case to contend that the petitioners have deliberately mis-described the suit schedule property by showing as part of Plot No. 8091, which is clearly an adjacent plot to the 146 sq.yards converted into free hold. He submits that while taking proceedings in respect of the said 146 sq.yards and the alleged tenant thereof, the first respondent is sought to be evicted from Plot No.8091. The learned counsel placed strong reliance upon the document, which is marked as document of partition - Ex.P3 and its English translation which shows the history of the case and that a particular clause ‘C’ thereof. He also placed reliance upon Ex.P4, the deed of 30 years leasehold executed by Cantonment Board in favour of Bibi Sahiba grandmother of Chand Saheb relating to the land to the east of house No.8091. He placed reliance upon the plan appended and marked as Ex.P5 to the said deed as well as Ex.P6 deed of rectification by the Cantonment Board and the transfer agreement Ex.P7 and a series of documents executed by the Cantonment Board including Ex.X-12 which was called and marked from the Cantonment authorities. He also placed reliance on Ex. X-16, which is the application by Mohammed Chand for conversion from leasehold to freehold showing that it relates to 1321.87 sq.fts. It is not part of plot No.8091 as mentioned therein and that without verification the Estate Officer issued proceedings relating to freehold for plot No.8091. Though actually the said proceedings were relating to adjacent land. The learned counsel, therefore, submits that the said Chand Saheb and later his legal representatives, which includes the petitioner, have committed systematic fraud in filing the present R.C. showing the house number as part of Plot bearing No.8091. Whereas the first respondent, who is a co-owner of the said plot and who is in possession of a part thereof has not even been impleaded in the R.C. and eviction order is obtained behind her back. He has also placed reliance upon the sale deed bearing document No.1471/06, dated 07-07-2006, wherein the first petitioner has sold a part of petition-schedule property to a company but still continued the present execution proceedings without any locus standi. According to the learned counsel, the decree suffers from fraud, which vitiates all proceedings and has placed reliance upon a decision of the Supreme Court in A.V. PAPAYYA SASTRY AND ORS. V/s. GOVERNMENT OF A.P. AND ORS[7], and particularly paragraphs 16 to 21 for the proposition of fraud avoids all judicial acts. The learned counsel also placed reliance upon a decision in KONERU ARUNA KUMARI V/s. SHAIK ALI[8], which held that third parties are entitled to file an application under Rule 23 (7) especially when fraud is played on the other part. Another decision in KOTALWAR AND CO. V/s. NAGELLI DURGTIAH[9], is also relied upon for the proposition that the court is empowered to take subsequent events in consideration and even if there are procedural lapses, it can be rectified. Another judgment of this court in ABDUL REHMAN V/s. SARASWATHI PRASAD SINGH[10], is relied upon wherein the wide definition of landlord was considered by this court. Another decision of this court in GONGUNTA KRISHNA MURTHY v/s. BOMMISETTI NARASIMHA RAO[11], was also cited for the proposition that where collusive judicial proceedings are taken, the court has to examine the ground of fraud played by the parties and relief under Rule 23 (7) can be granted. He also relied on another decision of the Supreme Court in BRAHMDEO CHAUDHARY V/s. RISHIKESH PRASAD JAISWAL AND ANR,[12] with reference to principles of Order-21, Rule 97 and 100 of CPC, which really has no application to the present proceedings. In S.N. JALANDHAR V/s. K. SANDHYA[13], which is cited for the proposition that under Rule 23 (7), the claim of petitioners should be in good faith and resistance shall not be without any just cause of in the enquiry contemplated under this Rule the court is not precluded from probing further with a view to seek necessary clarity of mind. Another decision of this court in JAMSHEED HUSSAINI V/s. AZEEZ HUSSAIN[14], is cited for the proposition that once the property is sold by the landlord, he ceases to have interest and locus standi. One more judgment of this court in AMTUL QUAYYUM HUMSIRA V/s. MUNAWAR FATHIMA[15], is cited, which is also based upon the proposition that fraud vitiates every proceedings. 10. In the light of these rival contentions, the point that arises for consideration is : Whether the impugned order of the court below is justified under Rule 23 (7) of the Rule? 11. For the sake of convenience, it is appropriate to extract Rule 23 (7) of the Act: If such execution is resisted and obstructed by any person other than the person against whom order of eviction was passed, the Controller may hold a summary enquiry into the facts of the case and if he is satisfied that the resistance or obstruction was without any just cause, and that such resistance and obstruction still continues shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction, and if he is satisfied that the resistance or the obstruction was occasioned by any person other than the person against whom order of eviction was passed claiming in good faith to be in the possession of the building on his own account or on account of some person other than the person against whom order of eviction was passed, he shall make an order disallowing the execution against such person. 12. It would be noticed that the rule requires the Rent Controller to conduct a summary inquiry to ascertain whether obstruction is for just cause. Though the nature of inquiry contemplated is summary, it is evident from the record of this case that parties have lead evidence and have filed large number of documents and to the extent relevant for the purpose of the present revision petition I would refer to the necessary documents to test the submissions on the part of either side. 13. As has been detailed above, the first respondent has filed claim petition by asserting that she is the co-owner of the property and has a share in the property bearing plot No.8091. The documents filed by the first respondent in support of her claim are already referred to and as per her averments in the claim petition she claimed to be in possession from 1958 onwards as a co-owner. Before testing the correctness of the said plea, it would be useful to remember that claim petition filed by the husband of the first respondent namely EA.No. 60 of 1997 was dismissed by the executing court on 10- 10-2006 and that attained finality. Similarly the plea of first respondent and her husband in OS.No.11 of 1998 which was filed for seeking declaration of title for the suit schedule property was one by setting up plea of adverse possession. It is well settled that adverse possession presupposes such plaintiff accepting true ownership of the defendants, otherwise, pleading of adverse possession would not arise. The said suit, OS.No.11 of 1998 was dismissed on 19-9-2006 and though the first respondent states that an appeal is pending, the said appeal is still at the SR stage with an application for condonation of delay, which is still undecided. Technically therefore though the said judgment has not attained finality, the first respondent has not taken any steps to get the said judgment set aside. Assuming therefore that the said judgment is set aside and assuming that said suit is decreed, the first respondent could get the declaration that she has acquired prescriptive title over the said property. In the light of her specific plea in the said suit that her possession must be declared as adverse to the true owner and prescriptive title be declared in her favour, clearly shows that her plea in the present claim petition as a owner of the property or co-owner of the property is inconsistent with her plea in the said suit. It is well settled that parties cannot be allowed to approbate and reprobate in one proceedings or the other. The fact that the first respondent and her