IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) FRIDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.6240 of 2006 BETWEEN: S.Bharani Kumar … APPELLANT(S) And Dr S.Sanjeeva Rao and others … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.6240 of 2006 ORDER: This revision is filed under Section 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short Act). The fourth respondent- S.Bharani Kumar in the eviction petition RCC No.87 of 1999 on the file of the Rent Controller-cum-IV Additional Junior Civil Judge, Visakhapatnam, is the petitioner in this revision. There is a landlord-tenant dispute in this matter. 2. The first respondent Dr. S.Sanjeeva Rao is the petitioner in the eviction petition which he filed on the ground of denial of title falling under Section 10(2)(vi) of the Act and wilful default in payment of rents falling under Section 10(2)(i) of the Act. The petition schedule premises is an AC sheet shed bearing D.No.32- 1-59 in an extent of about 250 sq. yds on the south west portion of the total extent of 834 sq. yds in T.S.No.1114/B1 in Allipuram ward, Visakhapatnam (for short referred to as premises). The first, second and third respondents i.e. Raghunath Naidu, Rajya Lakshmi and Vijaya Lakshmi are admittedly the son, wife and daughter of the alleged original tenant by name Bonda Nageswara Rao and he is no more. The fourth respondent-Bharani Kumar is stated to be the nephew of the said Bonda Nageswara Rao (i.e. his sister’s son). 3. After a contest the Rent Controller by his order dated 17.08.2004 dismissed the eviction petition holding that there was a bona fide title dispute between the parties and as such the question of wilful default in payment of rents does not arise. 4. On appeal (RCA No.11 of 2004) by Dr. Sanjeeva Rao the appellate authority under the Act i.e. the Principal Senior Civil Judge, Visakhapantam, by its order dated 03.11.2006 upheld the case of Dr. Sanjeeva Rao and ordered eviction of the revision petitioner Bharani Kumar and the other respondents. Questioning that order of the appellate authority Bharani Kumar alone filed this revision. To state and decide the points that arise for determination in this revision, the respective cases of the parties to the extent relevant should be noted and hereafterwards for convenience they shall be referred to by their names. 5. The case of Dr. Sanjeeva Rao in substance is that he got the premises in question under Ex.A.4 compromise decree dated 15.09.1982 passed in the partition suit O.S.No.21 of 1982 between himself and his father on the file of the IV Additional Subordinate Judge, Visakhapatnam and ever since then he is the owner of the same. He then pleaded that his father originally constructed the premises in the open site in question in the year 1971 and leased it out to the above mentioned late Bonda Nageswara Rao initially on a monthly rent of Rs.150/- and that it was periodically enhanced and that by the date of eviction petition the rent was enhanced to Rs.500/- per month. It must be noted here that it is the case of Dr. Sanjeeva Rao that earlier Bonda Nageswara Rao paid the rent regularly to his father and after the above partition he paid it to him till 1994 and later on he became defaulter and ultimately died on 22.01.1999. The version of Dr. Sanjeeva Rao is that rents are due from September 1998 and respondents 1 to 3 i.e. Raghunath Naidu, Rajya Lakshmi and Vijaya Lakshmi who are son, wife and daughter of late Bonda Nageswara Rao did not pay rents to him. He then made a mention about the suit O.S.No.44 of 1999 filed by Bharani Kumar for injunction and pleaded that the said Bharani Kumar is a third party and he has been in illegal possession of the premises and consequently the legal representatives of Bonda Nageswara Rao and Bharani Kumar are liable to be evicted as they denied his title and committed default in payment of rents. 6. Mr Bharani Kumar and Raghunath Naidu who are the fourth and first respondents in the eviction petition filed common counter resisting it. It is reported by both counsel that in the revision that the eviction petition against respondents 2 and 3 i.e. Rajya Lakshmi and Vijaya Lakshmi who are wife and daughter of late Bonda Nageswara Rao was dismissed by the Rent Controller. 7. Raghunath Naidu admitted that he is the son of Bonda Nageswara Rao but denied that his father was ever tenant in the premises and he further denied that the premises belongs to Dr. Sanjeeva Rao’s father or Dr. Sanjeeva Rao. Their case is that Bonda Nageswara Rao has been throughout in possession and enjoyment of the premises as its rightful owner and he has been doing firewood business in it and there was never any landlord- tenant relationship between him and Dr. Sanjeeva Rao or earlier Dr. Sanjeeva Rao’s father. They also denied about the quantum of rents pleaded by Dr. Sanjeeva Rao. They then mentioned about the suit O.S.No.44 of 1999 filed by Bharani Kumar and the circumstances under which it was filed. They further pleaded that ultimately Bonda Nageswara Rao and his family members handed over the premises to his sister’s family members and of them Bharani Kumar is the eldest and he is doing business in it. It should also be noted that they took a plea in the counter that Dr. Sanjeeva Rao and his father grabbed large tracts of land marked by the Government as market yard behind the premises and the said land was repossessed by the municipal authorities for the purpose of constructing houses for slum dwellers and the said houses exist now. With the above pleas they sought for dismissal of the eviction petition. 8. On the arguments addressed in this Court the following points arise for determination in this revision. (i) Whether the denial of title by Raghunath Naidu and Bharani Kumar is a bona fide one and there was never any landlord-tenant relationship between Dr. Sanjeeva Rao and Bonda Nageswara Rao? (ii) Whether Nageswara Rao during his lifetime and after his death Raghunatham Naidu committed default in payment of rents? (This point will arise only depending upon the answer to point No.1) Point No.1: 9. It may be noted that according to Section 10(2)(vi) of the Act if denial of title is found to be bona fide the Rent Controller and correspondingly this Court also acting under the Act cannot order eviction and must direct the person claiming to be the landlord to vindicate or establish his right in a civil Court. The question is when the denial of title can be said to be a bona fide one in cases falling under the Act. It should be noted that in proceedings under the Act the denial of title and correspondingly the landlord-tenant relationship can be said to be bona fide if a reasonable dispute is raised about the same such denial not being on frivolous or flimsy grounds. This is the general principle and to decide the said question no rule of universal application can be laid down and each case has to be decided on its own facts and circumstances to find out the answer. Keeping in view this principle it has now to be seen, though this is a revision, whether the denial of title by Raghunath Naidu and Bharani Kumar can be said to be a bona fide one. 10. The learned counsel appearing for Bharani Kumar took me again through the pleadings and evidence and the documents filed by both sides and argued that the Rent Controller considered the matter and came to a correct conclusion that the denial of title made by Bharani Kumar and Raghunath Naidu in the eviction petition is bona fide and this conclusion was erroneously set aside by the appellate authority on a totally wrong appreciation of evidence and therefore this revision should be allowed. He relied upon various documents filed by both sides in support of the above contention. On the other hand, the learned counsel appearing for Dr. Sanjeeva Rao argued that the appellate authority considered all the documents and its conclusion is well-founded and right and consequently it does not call for any interference. In the light of the above contentions the point No.1 is now taken up. 11. The respective cases of the parties on this point have already been set out supra. It may be noted that according to Dr. Sanjeeva Rao the premises in question is the AC sheet shed constructed in an extent of 250 sq. yards and it constitutes the southwest portion of the total extent of 834 sq. yards and this entire extent of 834 sq. yards is claimed by him as its owner. In order to prove his title to the said entire extent of 834 sq. yards Dr. Sanjeeva Rao relied upon Ex.A4 partition decree in O.S.No.21 of 1982 and the compromise petition therein upon which the said decree was passed and his specific plea is that this extent of 834 sq. yards constitutes Item No.3 in the said compromise memo. A perusal of the compromise memo which is in Telugu and which is attached to Ex.A4 decree would show that Item No.3 therein is only an extent of 550 sq. yards in T.S.No.1114/B1 with some constructed shops therein bearing Door No.32-1-58. It is thus clear that what Dr. Sanjeeva Rao got under Ex.A4 decree is only an extent of 550 sq. yards in T.S.No.1114/B1 with structures thereon bearing Door No.32-1-58 but not 834 sq. yards. The learned counsel for Dr. Sanjeeva Rao was unable to explain this aspect and it may be noted that even assuming for a moment that Ex.A4 compromise decree can be relied upon, it shows that Dr. Sanjeeva Rao got only 550 sq. yards under the above compromise decree but not 834 sq. yards. The difference is 284 sq. yards and Dr. Sanjeeva Rao is unable to explain the source of his title for this 284 sq. yards. 12. It may be noted that Dr. Sanjeeva Rao is claiming the entire 834 sq. yards as the property which was got by him under Ex.A4 decree but that is not supported by Ex.A4 decree itself. It may them be noted that in Ex.A4 decree the municipal door number of the property is given as 32-1-58 whereas Bharani Kumar is claiming the property as that bearing No.32-1-59. It may also be noted that the Ex.A.1 certified copy of the decree and judgment in O.S.No.44 of 1999 on the file of the Court of the Principal Junior Civil Judge, Visakhapatnam, which was an injunction suit filed by Bharani Kumar would show that he claimed only 250 sq. yards with structures thereon bearing Door No.32-1-59 which he filed against Dr. Sanjeeva Rao. Thus it is clear that by Ex.A4 partition decree Dr. Sanjeeva Rao is not able to establish his title to 284 sq. yards out of 834 sq. yards claimed by him. The disputed premises is in 250 sq. yards which is less than 284 sq. yards and it is possible that it may be part of the above mentioned 284 sq. yards. In the cross-examination of Dr.Sanjeeva Rao it was specifically suggested to him that what he got under Ex.A4 decree in item 3 thereof was only 550 sq yards and he affirmed it. The case of Raghunath Naidu and Bharani Kumar that the disputed premises belongs to Bonda Nageswara Rao and it is in 284 sq. yards cannot be rejected as frivolous or unfounded and this was the line of defence taken in the cross-examination of Dr.Sanjeeva Rao. The above circumstances in my opinion strongly probablise the case of Raghunath Naidu and Bharani Kumar that Dr. Sanjeeva Rao has no title to the premises in question or in any event he is not able to establish in these proceedings his case about his title to the said property. However a final pronouncement on the title has to be made by the civil Court and not this Court in these proceedings. 13. The learned counsel for Dr. Sanjeeva Rao relied upon Ex.A2 tax passbook, Ex.A3 certified copy of property tax extract of the building and Ex.A5 certified copy of the order in another eviction petition i.e. R.C.C.No.75 of 1997 to show his title to the premises in question but a perusal of the said documents would show that they cannot be correlated to the premises in question which is claimed to bear Door No.32-1-59 and they cannot be said to be of any help to Dr. Sanjeeva Rao inasmuch as the Ex.A4 decree relied upon by him would show his title only to 550 sq. yards but not the entire 834 sq. yards. 14. It may then be noted that Bharani Kumar and also Raghunath Naidu the first respondent in the eviction petition filed Exs.B1 to B12 tax passbooks and challans and tax bills showing that Bonda Nageswara Rao or they paid taxes for the premises bearing Door No.32-1-59. Thus going by Ex.A4 decree and the above documents of Bharani Kumar it can be said that the plea of denial of title of Dr. Sanjeeva Rao to the premises in question taken by Bharani Kumar and the son of Bonda Nageswara Rao can be said to be a bona fide one and it cannot be rejected as a frivolous one or an unfounded one. The learned counsel for Dr. Sanjeeva Rao could not bring to my notice any circumstance to overcome the minus point weighing against him in Ex.A4 decree which in fact is pleaded to be the source of title of Dr. Sanjeeva Rao. In the course of arguments it was pointed out that Bharani Kumar and Raghunath Naidu failed to explain their source of title to the premises in question and therefore their contention should be rejected. There is no force in this contention for the simple reason that the initial burden lies upon the eviction petitioner who says that he is the landlord to show that he has got title to the property. Even otherwise this question becomes irrelevant for the reason that once Dr.Sanjeeva Rao is held to have failed in establishing his title to the disputed premises that aspect alone is sufficient to reject his case in these proceedings as Bharani Kumar and Raghunath Naidu may become liable to the true owner whoever he may be. 15. It must also be mentioned here that except examining P.W2 an official of the Urban Land Ceiling office of Visakhapatnam to show that Dr. Sanjeeva Rao or his father filed urban land declarations declaring the extent of 834 sq. yards is vacant land before the authorities under the Urban Land Ceiling Act, Dr. Sanjeeva Rao could examine any neighbour who has got knowledge about the affairs in the locality to show that Bonda Nageswara Rao has been in occupation of the premises as a tenant and that he paid rents to his father or himself later on. The evidence of P.W2 does not show that Bonda Nageswara Rao is a tenant in the land of Dr.Sanjeeva Rao and it only shows that Dr.Sanjeeva Rao or his father filed a declaration. In the above circumstances the evidence on record only supports the case of Bharani Kumar and Raghunath Naidu. 16. The appellate authority it appears did not notice the above circumstance weighing against Dr.Sanjeeva Rao and has therefore proceeded to allow the appeal filed by him. The above finding of the appellate authority in my opinion cannot be said to be one based on correct appreciation of evidence and it appears that it more went by its surmise basing upon Ex.A3 ignoring Ex.A4 decree and therefore cannot be sustained. It is now well settled that though in a revision this Court should not interfere with the finding of a fact recorded by an appellate authority still this Court can interfere where such conclusion on a question of fact is found to have been reached on a totally incorrect appreciation of evidence omitting to consider the material circumstances which weigh in favour of the revision petitioner. Accordingly I find that the plea of denial of title taken by Bharani Kumar and Raghunath Naidu can be said to be bona fide one and therefore Dr. Sanjeeva Rao has to work out his remedies in a civil Court. Then coming to the question of landlord-tenant relationship, it may be noted that normally where a denial of title is found to be bona fide the question of such relationship does not arise. Even otherwise Dr.Sanjeeva Rao has not been able to establish that earlier his father and later on he exercised rights of ownership over the premises in question and collected rents from Bonda Nageswara Rao in order to rely upon the rule of tenant’s estoppel enacted in Section 116 of the Evidence Act. Thus it cannot be said that Dr.Sanjeeva Rao even otherwise established a relationship of landlord and tenant between him and Bonda Nageswara Rao. Accordingly for the aforesaid reasons this point is decided in favour of the revision petitioner. Point No.2: 17. In view of the finding under point No.1, it follows that the landlord-tenant relationship did not exist between the parties and consequently the question of default in payment of rents cannot arise. This point is also accordingly answered in favour of the petitioner. 18. In the result it follows that the petitioner in this revision must succeed and accordingly this revision is allowed and the order of the appellate authority is set aside. No costs. It goes without saying that it shall be open for Dr.Sanjeeva Rao to work out his remedies in the civil Court if he is so advised. _______________________ N. RAVI SHANKAR, J. 25th February 2011 CVRK