IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.1933 and 2469 of 2009 Between: Syed Badiuddin … Petitioner and Mannem Anitha and others. … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.1933 and 2469 of 2009 COMMON ORDER: C.R.P. No.1933 of 2009 has been filed aggrieved by the order and decree dated 06.03.2009 passed in R.C.A. No.8 of 2007 by the Principal Senior Civil Judge, Nellore, confirming the order of the learned Rent Controller, Nellore dated 31.01.2007 in R.C.C. No.43 of 1995 on the file of the learned Rent Controller-cum-Principal Junior Civil Judge, Nellore. C.R.P. No.2469 of 2009 has been filed aggrieved by the order and decree dated 06.03.2009 passed in R.C.A. No.9 of 2007 by the Principal Senior Civil Judge, Nellore, confirming the order of the learned Rent Controller, Nellore dated 31.01.2007 in R.C.C. No.18 of 1995 on the file of the learned Rent Controller-cum-Principal Junior Civil Judge, Nellore. The revision petitioner, in both the said revision petitions, is the one and the same and the sole respondent in C.R.P. No.1933 of 2009 is also one of the respondents i.e. the 1st respondent, in C.R.P. No.2469 of 2009, along with two others. R.C.C. No.43 of 1995 was filed by one Mannem Anitha, Landlady, who is the sole respondent in C.R.P. No.1933 of 2009, under Section 10(2)(i) 3(iii)(b)(iv) and (vi) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as ‘the Act’). R.C.C. No.18 of 1995 was filed by one Sd.Badiuddin, Tenant, who is the revision petitioner in both the revision petitions, under Section 9(3) of the Act. For the purpose of convenient, the parties hereinafter referred to as the Landlady and the Tenant. R.C.C. No.43 of 1995 was filed by the Landlady seeking direction against the Tenant to vacate and deliver the vacant possession of the petition schedule premises. Upon considering the said R.C.C., the learned trial Court allowed the petition, vide its order and decree dated 31.01.2007, with costs directing the tenant to deliver vacant possession of the petition schedule shop room to the landlady, within two months, failing which, landlady can recover the same through process of law. Aggrieved by the same, the tenant preferred an appeal in R.C.A. No.8 of 2007 on the file of the learned Principal Senior Civil Judge, Nellore, who dismissed the appeal, vide its order and decree dated 06.03.2009, with costs confirming the order of the learned trial Court. Assailing the same, the tenant filed C.R.P. No.1933 of 2009. R.C.C. No.18 of 1995 was filed by the Tenant seeking to grant permission to deposit the rents of Rs.120/- per month in the Court payable by the tenant in respect of the petition schedule premises including past and future rents and for costs. There are three respondents viz., 1) Smt. Mannem Anitha, 2) D.Mitra and 3) V.Venkatarathnamma. Respondents 2 and 3 are not the parties in R.C.C. No.43 of 1995. Upon considering the said R.C.C., the learned trial Court dismissed the petition vide its order and decree dated 31.01.2007 and directed the tenant to pay the arrears of rent as well as rents of the petition schedule premises to the landlady. Aggrieved by the same, the tenant preferred an appeal in R.C.A. No.9 of 2007 on the file of the learned Principal Senior Civil Judge, Nellore, who dismissed the appeal, vide its order and decree dated 06.03.2009, with costs confirming the order of the learned trial Court. Assailing the same, the tenant filed C.R.P. No.2469 of 2009. Since, both the revision petitions have been filed by the tenant and the subject matter, in respect of petition schedule premises, is one and the same, they can be disposed of by this common order. For the purpose of disposing of these revision petitions, brief facts needs to be noted as under: Non-residential premises situated in Ward 15 bearing Door No.320-A and B, consisting of 5 portions, belonged to one Veeravajjula Rajagopal of Hyderabad. Out of the five portions, third portion commencing from East was let out to the tenant by the Rajagopal for the purpose of running a watch shop under the name and style of “Time Centre” on a monthly rent of Rs.120/- and a rent note was executed between the tenant and the said Rajgopal on 14.06.1984 ending with 30.05.1987, wherein it is agreed by the tenant that he should send the monthly rent by bank draft or money order to the said Rajgopal. It was submitted that the tenant was not regular in payment of monthly rent to the said Rajagopal and after his demise to his legal representatives. As on 31.12.1994, the tenant has to pay arrears of rent for two months for a sum of Rs.240/- and committed willful default in payment of rents. While the matter stood thus, the legal representatives of late Rajagopal have agreed to sell the entire premises bearing Door No.320-A and B consisting of five portions including the petition schedule premises under the agreement of sale dated 25.01.1995 for a sum of Rs.4,80,000/- and executed a registered agreement of sale in favour of landlady and delivered possession to her. Subsequently, the legal representatives of late Rajagopal have executed formal sale deed and registered the same on 10.03.1995. Thereafter, the landlady and her husband by name Mitra had approached the tenant and other tenants and informed about the sale in favour of landlady and called upon the tenant to pay arrears of rents and vacate and deliver the vacant possession of petition schedule shop room as the same has been required for landlady’s personal requirement. But the tenant neither paid the arrears of rent nor the rents due to the landlady nor vacated the premises. On the other hand, the tenant filed O.S. No.185 of 1995 on the file of the I Additional District Munsif, Nellore against the husband of the landlady and others with false allegations. Contents of plaint in O.S. No.185 of 1995 reveal that the tenant had knowledge about the purchase of above said premises. It was further submitted that the landlady intends to carry on business with the help of her husband in Hotel both in Vegetarian and non-vegetarial, Hot foods, cool drinks, bakery, in all the five portions of the building including the petition schedule mentioned premises. The landlady has got sufficient means to do the said business. Landlady had no other non-residential building of her own to her possession. The said building is suitable for her business. Thus, the tenant is liable to be evicted on this ground. Therefore, the landlady got issued a registered legal notice dated 26.08.1985 to the tenant calling upon him to pay the arrears of rent and vacate and deliver vacant possession of the petition schedule premises. The tenant sent reply notice with false allegations by denying the landlady’s title. Hence, the landlady filed R.C.C. No.43 of 1995. On behalf of the tenant, counter affidavit was filed alleging that non-residential premises situated in Ward No.15 bearing Door No.320- A and B consisting of five portions belonged to one Veeravajjula Rajagopal of Hyderabad. Third portion of the said premises was let out by the said Rajagopal to him for running a watch shop under the name and style of “Time Centre”. He is not aware that the legal representatives of late Rajagopal have agreed to sell the entire premises bearing Door No.320-A and B including petition schedule shop room under agreement of sale and executed agreement of sale by delivering possession. He does not know about the execution of formal sale deed. He was never apprised by the landlady’s husband and by one Mitra about the sale in favour of landlady and he was never demanded to pay arrears of rent and vacate and to deliver vacant possession of petition schedule shop room, as the same was required for the personal requirements of landlady. It was further submitted that the landlady got issued a legal notice dated 26.06.1995 and he got issued a suitable reply notice and thereafter, he filed R.C.C. No.18 of 1995 seeking to deposit monthly rent. He submitted that one V.Rajagopal was holding the property and he leased out the schedule premises to him more than 30 years back on a monthly rent of Rs.55/- and from time to time the rent was enhanced and he is paying rent Rs.120/-. He has been paying rents regularly to V.Rajgopal. After demise of V.Rajgopal, he paid rents by way of money order to V.Venkatarathnamma and Mitra as the rights are vested to them to receive the rents for schedule mentioned property. He does not know about the sale transaction took place between the landlady and Venkatarathnamma and Mitra. So, he was put in dilemma to whom the monthly rents have to be paid. Then he came to know that the schedule site, in which five portions situate, belong to Sri Talpagiri Ranganadhaswamy Temple and the legal heirs of V.Rajagopal filed W.P. No.15980 of 1989 to grant stay of evicting them from schedule property pleading that V.Rajagopal was permanent lessee of the schedule property. When the writ petition is pending, any alienation of schedule property is effected, the same is hit by Section 53 of Transfer of Property Act. He further submitted that he had taken the lease of the schedule premises from late V.Rajagopal and therefore, the said Rajagopal is the landlord of the tenant and he used to send the rents by way of money order and after his demise he used to send the money order to Venkataratnamma and Mitra. Therefore, a doubt is created about the ownership of the said building. Therefore, in the absence of any intimation from Venkataratnamma and Mitra to the tenant, he will not pay rents to the landlady. Hence, he filed R.C.C. No.18 of 1995, depositing rents at the rate of Rs.120/- to the Court. He paid up to date rents and no rents fell due. He was informed about the sale by the landlady, her husband and Mitra but he was never asked to vacate the premises. Hence, sought to dismiss the petition. After having heard the learned counsel on either parties, the learned trial Court framed the issue as to whether the landlady is entitled for eviction of the tenant from the petition schedule premises and the learned trial Court, based on the evidence on record, answered the issue in favour of the landlady and directed the tenant to deliver vacant possession of the petition schedule shop room to the landlady, within two months. Aggrieved by the same, the tenant preferred an appeal in R.C.A. No.8 of 2007. The learned appellate Court, on reconsidering the evidence on record, framed the following issues for determination: “(1) Whether the petition schedule premises is absolutely owned by Sri Talpagiri Ranganadha Swamy Temple, Ranganayakulapet, Nellore and the Rent Controller, Nellore has no jurisdiction to entertain the present Rent Control Case? (2) Whether the petitioner is the landlady of the respondent in relation to the petition schedule premises? (3) Whether the respondent had paid rents in respect of the petition schedule premises regularly as pleaded by him? If so, the respondent had committed default in payment of monthly rents as pleaded by the petitioner? (4) Whether the requirement of the petition schedule premises for occupation of the petitioner is a bona- fide one? (5) Whether the respondent/tenant is liable to be evicted from the petition schedule premises? (6) Whether the order of the learned Rent Controller dated 31.1.2007 in R.C.C.No.43/1995 suffers from any illegality or irregularity, and requires to be interfered with? (7) To what relief?” The learned appellate Court, while considering the first issue, held that as per the version of the tenant, he had taken the lease of the petition schedule premises from late V.Rajagopal and the said Rajagopal is his landlord and he used to send the rents by way of money order to Venkatarathnamma, wife of the said Rajagopal, after the death of said Rajagopal. Further, it is held that the case of the landlady is that she purchased the petition scheduled premises from the legal heirs of said Rajagopal under the original of Exhibit A-1, agreement of sale, and also obtained the original of Exhibit A-2, regular registered sale deed, in pursuance of the said agreement of sale in respect thereof. As the said non-residential building bearing Door No.320-A&B, which includes the petition schedule premises, was not constructed by the said Temple, and the same was constructed by a person who acquired right over the site leased out by the said Temple, it cannot be said that the said non-residential building, which is a superstructure, is owned by the said Temple. Since the said Temple is not a party to the Rent Control Case, and the said Temple is not claiming any right over the said superstructure, it cannot be said that the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 have no application in respect of the petition schedule shop room, and that the Rent Controller, Nellore has no jurisdiction to adjudicate the point in dispute in respect of the said shop room in between the landlady and the tenant. On the second issue, the learned appellate Court held that ‘the petitioner is the landlady of the respondent/tenant in respect of the petition schedule premises’. To arrive at the said conclusion, the learned appellate Court had considered the various issues viz., evidence of Sri M.Amarnath (PW.1), who is the husband of the landlady, who stated in his evidence before the learned Rent Controller, Nellore, that he was looking after the entire affairs on behalf of his wife, and as such, he looked after the entire transaction on behalf of his wife. He further stated in his evidence that the wife and children of the deceased Rajagopal had sold away the petition schedule premises, and identified Exhibit A-1 as the certified copy of the registered sale agreement dated 25.01.1995, and Exhibit A-2 as the certified copy of the registered sale deed dated 10.03.1995 executed in respect thereof. He further stated in his evidence that after purchase of the said property, he being accompanied by the son-in- law of said Rajagopal and demanded the tenant for arrears of rent i.e., Rs.240/- as on 30.12.1994, and that the tenant promised to vacate the premises, but filed suit in O.S.No.185 of 1995 for grant of permanent injunction against him and the son-in-law of Rajagopal, in stead of vacating the said premises, and identified Exhibit A-3 as certified copy of the plaint, Exhibit A-4 as certified copy of the written statement, and Exhibit A-5 as certified copy of the judgment in the said suit i.e., O.S.No.185 of 1995. He further stated in his evidence that they got issued notice before filing the petition, and identified Exhibit A-6 as the office copy of the said notice dated 26.06.1995, and Exhibit A-7 as the served postal acknowledgement. Further, the tenant Sri Syed Badiuddin has stated in his affidavit filed in lieu of chief examination, in support of his version setout in the counter, that he was not aware that the legal representatives of late Rajagopal had agreed to sell the entire premises bearing Door No.320-A&B consisting of five shop rooms including the petition schedule shop room under a registered agreement of sale dated 25.01.1995 for a sum of Rs.4,80,000/- and put the landlady in possession thereof, and also he was not aware of the execution of formal registered sale deed dated 10.03.1995 contemplated under Stamp Act in favour of the landlady by the legal representatives of said Rajagopal. He denied specifically in his affidavit that the landlady’s version that the landlady’s husband and one Mitra, son-in-law of the Rajagopal, had appraised him and other tenants about the sale in favour of the landlady and called upon him to pay arrears of rent and vacate and deliver the vacant possession of the petition schedule shop room as the same was required for the landlady’s personal requirement. But as averred by the counsel appearing for the landlady, the tenant got mentioned specifically at para 17 of his counter that “… Respondent submits that the petitioner and her husband and Mitra were approached the respondent and informed about the sale and never asked the respondent to vacate the premises…..” Thus, the version of the tenant setout in his counter, relating to the fact of intimation about the sale of schedule property to the landlady, is ‘self-contradictory’. Hence, the evidence of the tenant that ‘he was not aware of the sale of the petition schedule property to the petitioner by the legal representatives of said Rajagopal cannot be believed.’ On the third issue, the appellate Court held that ‘the respondent/tenant has committed willful default in payment of rents to the petitioner in respect of the petition schedule premises ever since the date of Exhibit A-1 agreement of sale i.e., 25.1.1995.’ While arriving at the said conclusion, the Court below pointed out that in view of specific plea of the tenant that he paid rents regularly to the said Venkatarathnamma and Mitra by way of money order, the burden is heavily on him to establish the said fact by filing relevant money order coupons. Non filing of any such money order coupons or taking of any steps to examine the postal authorities to prove the same gives scope to doubt about the correctness of the version of the tenant about the alleged payment of rents in respect of the petition schedule premises to the said Venkatarathnamma or Mitra, more particularly from the date of Ex-A-1 agreement of sale. Absolutely there is no explanation offered by the tenant for non payment of rents in respect of the petition schedule premises to the landlady despite intimation to him about the sale of the petition schedule premises to the landlady by the legal heirs of the original landlord V.Rajagopal under Ex.A-1, agreement of sale and Ex.A-2, sale deed. Under those circumstances, the first appellate Court confirmed the judgment and decree of the learned trial Court. Aggrieved by the same, tenant, filed the present revision petitions. The learned counsel for the revision petitioner, tenant, would submit that from the beginning he is denying the title of the landlady and as such, the denial is bona fide one. He drew the attention of this Court to Section 10 of Sub-Section 2 (vi) of the Act wherein it is contemplated as under: “(2) A landlord who seeks to evict his tenent shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (vi) the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide.” In support of his claim, he placed reliance in the case of ABDUL REHMAN v. SARASWATHI PRASAD SINGH[1] and submitted that the tenant has bona fidely disputed the title of the landlady and therefore, the Court below had no jurisdiction to entertain the matter unless the title dispute is resolved by the competent civil Court. He further contended that he is confining only to the extent of dispute with regard to the title of the landlady on the ground that he is not aware of the transaction between the legal representatives of the original landlord i.e. Rajgopal and the landlady whereby the landlady became the owner of the property. On the other hand, the learned counsel appearing for the landlady would submit that admittedly Rajgopal, to whom the tenant was paying rents and after his demise to his wife by money order, inducted the tenant into possession as tenant. After demise of Rajgopal the landlady purchased the property through the legal heirs of Rajgopal. Therefore, necessarily the tenant has to pay the rents to the landlady as she is the owner of the property. It is also submitted that both the Courts below have categorically declared that the landlady is entitled to collect the rents and directed the tenant to evict the premises in question. He also submitted that it was the case of the tenant that he did not commit any default in payment of rents and he sent the rents through money order, in this regard, it is submitted that it is for the tenant to establish that he had not committed any default, much less, willful default in payment of rents. In case, if at all, he sent the rents through money order, he might have adduced the money order receipts. In the absence of same, it can be held that the tenant had committed willful default in payment of rents. In support of his argument, he placed reliance in the case of OMKAR TELE v. MOHD. ABDUL RAHMAN[2] He further submitted that when once the property is sold, the tenancy automatically follows and after filing the rent control petition, denial of the title is not bona fide in view of the registered sale deed and as the title has been transferred in favour of the landlady. In support of his contention he placed reliance in the case of SHANKARAMMA AND OTHERS v. MOHAMMED ABDUL HAMEED AND ANOTHER[3] and BANSRAJ LALTAPRASAD MISHRA v. STANLEY PARKER JONES[4]. He also placed reliance in the case of BOKKA SREERAMULU v. KALIPATNAPU VENKATESWARA RAO AND ANOTHER[5] and submitted that if at all the tenant wanted to dispute the title of the landlady, he could do so after he gives up the possession. Heard the learned counsel on either side and perused the material on record. Having regard to the submissions made by both the counsel and as the learned counsel for the tenant had specifically submitted that he is confining only to the extent of dispute with regard to the title of the landlady, the point that arises for consideration is as to whether denial of the title of the landlady by the tenant is sustainable in law? Admittedly, it is not in dispute that the original owner of the building was Sri Rajagopal and he inducted the tenant into possession as a tenant. According to the tenant, after demise of Sri Rajagopal, he used to pay the rents to the wife of the deceased Rajagopal i.e. Venkatarathnamma, by money order. It is to be noted here that the tenant did not adduce any money order receipts to substantiate his contention. Thereafter, on receipt of legal notice from the landlady that she purchased the building property from legal heirs of deceased Rajagopal i.e. Venkatarathnamma and Mitra and others and sought for eviction of the tenant and for payment of rents and arrears, he had entertained a doubt whether Venkata Rathnamma and Mitra were the owners or the landlady. Therefore, he filed R.C.C. No.18 of 1995 under Section 9(3) of the Act seeking permission to deposit monthly rent at the rate of Rs.120/- per month. Further, it was also the case of the tenant that he came to know that the schedule site in which the building was constructed belongs to Sri Talpagiri Ranganadha Swamy Temple. In view of the above position, the tenant disputed the title of the landlady on the ground that the right of the tenant protected by the Act to deny the title of the person claiming to be landlady is recognized under Section 10(2)(vi) of the Act. In support of his claim he placed reliance in the case of ABDUL REHMAN (one supra) wherein the relevant para 15 reads as under: “Yet another aspect of the matter which cannot be ignored is the suit filed by respondent and the suit filed by Smt G.Kalavathi which are still pending. The respondent filed suit for declaration of title and his rival claimant filed suit for possession. This would clinchingly show that even if respondent filed suit based on sale deed, dated 02.02.1962 or rent agreements and earlier orders of the rent controller and small cause