* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Civil Revision Petition No. 3842 of 2010 % 28.09.2011 # Smt. M. Sarojini Devi and others .. Petitioners/Appellants/Respondents Vs. $ Jugal Kishore Sanghi .. Respondent/Respondent/Petitioner <GIST: >HEAD NOTE: ! Counsel for petitioners : Smt. D. Pramada ^ Counsel for respondent : Sri R.A. Achuthanand ? CASES REFERRED : 1. 2001(1) ALD 438 2. 2005(1) ALD (NOC) 38 3. 2010(1) ALD 366 4. 2008(2) ALD 49 5. 1997(3) ALD 732 6. 2006(3) ALD 342 7. AIR 1981 AP 34 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No.3842 of 2010 Order: This C.R.P. is directed against the order dated 29.06.2010 passed in R.A. No.95 of 2009 by the Additional Chief Judge, City Small Causes Court, Hyderabad, confirming the order dated 25.08.2009 passed in R.C. No. 130 of 2005 by the I Additional Rent Controller, Hyderabad. The parties hereinafter will be referred to as they are arrayed before the Rent Controller for the sake of convenience. The petitioner filed R.C. No.130 of 2005 seeking eviction of the respondents from the petition schedule properties. His case is that he is the owner and landlord of the non-residential premises bearing Municipal No.22-5-227 of Kali Kaman, Hyderabad, and the said mulgi was leased out to one M. Shankaraiah, who is the husband of respondent No.1 and father of respondent Nos.2 and 3. The tenancy was oral on month to month basis. The monthly rent was fixed at Rs.1000/- exclusive of electricity consumption charges and property taxes and the same was agreed to be paid by 10th of every succeeding month. The allegation of the petitioner is that the respondents paid rent for the month of July 2003 and obtained a receipt on the same day and subsequently they failed to pay the rent in spite of demands, therefore, he got issued a notice dated 17.09.2004 to the respondents calling upon them to pay the arrears of rent from August 2003 onwards at Rs.1000/- per month, amounting to Rs.20,000/-, and respondents 1 and 2 avoided to receive the notice and though the third respondent received the said notice, he did not give any reply. It is also alleged that the respondents are not carrying on any business in the schedule premises and they sublet the same to third parties by name Noor Amin and Omprakash. Hence he filed the petition under Section 10(2)(i) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’) seeking eviction of the respondents from the petition schedule property. The first respondent filed counter and denied the relationship of landlord and tenant between the petitioner and the respondents. Her specific case is that her husband M. Shankariah had been in possession of the schedule mulgi as owner, which he acquired from his father. Thus, her specific case is that her father-in-law M. Brahmaiah, S/o Ramaiah purchased the schedule mulgi from the then Nizam while continuing as tenant and that her father-in-law Brahmaiah died in September 1956, who bequeathed the schedule mulgi in favour of her husband M. Shankaraiah and that after the death of her husband, herself and respondents 2 and 3 are in peaceful possession and enjoyment of the same by doing their goldsmith business and therefore the petition is not maintainable. After the death of respondent No.1, respondent Nos.2 and 3 filed additional counter and made almost same averments. A rejoinder is filed by the petitioner denying the claim of the respondents and asserting the right of the petitioner in the petition schedule mulgi. It is also the case of the petitioner that M. Shankaraiah, the husband of respondent No.1, himself appeared as a witness in R.C. Nos.215 of 1974 and 377 of 1989 on the file of the I Addl. Rent Controller, Hyderabad, and deposed admitting the jural relationship of landlord and tenant between the petitioner and himself. The following points were formulated by the Rent Controller for consideration. 1. Whether the denial of the title of the petitioner by the respondents is bona fide? 2. Whether there is any jural relationship of landlord and tenant between petitioner and the respondents? 3. Whether the respondents committed willful default in payment of rent? 4. Whether the respondents sub-let the schedule premises to the third parties? 5. Whether the petitioner is entitled for eviction of the respondents from the schedule premises? On behalf of the petitioner, PWs.1 to 4 were examined and Exs.A1 to A27 were marked. On behalf of the respondents RW.1 was examined and Exs.R1 to R7 were marked. The learned Rent Controller, accepting the version of the petitioner that the husband of the first respondent deposed in the earlier rent control proceedings admitting the jural relationship and accepting the version of the petitioner that the respondents committed willful default, allowed the petitions and ordered eviction of the respondents from the petition schedule premises. Aggrieved by the same, the respondents filed the appeal. However, their claim was not accepted by the appellate authority and dismissed the appeal. Challenging the same, they filed the present revision petition. Smt. D. Pramada, learned counsel for the respondents/tenants, referring to a suit in O.S.No.604 of 2009 filed by the petitioner/landlord, submitted that the petitioner/landlord himself filed the said suit seeking declaration that sale deed executed by the respondents 2 and 3 herein in favour of third defendant therein as illegal, null and void and sought permanent injunction and that itself shows that there is a title dispute between the parties. It is also her submission that the property is sarfekhas property and the grand father of the respondents purchased the same from the then Nizam and that the respondents father and grand father continued to be in possession of the property as owners and there is no jural relationship of landlord and tenant between the parties. It is also her submission that no proceedings were initiated during the life time of the father of the respondents and now basing on the deposition said to have been given by their father the present petition has been filed. It is also her submission that only with a view to help the petitioner, Shankaraiah gave evidence in respect of other premises and the same would not bind the respondents. It is also her submission that Shankaraiah deposed in his evidence that rents were collected on behalf of Hari Bhavan Dharmasala and a reading of entire evidence of Shankaraiah gives an impression that the reference to the landlord in those proceedings denote as the person authorized to collect rents on behalf of Hari Bhavan Dharmasala. Her submission is that the context and the circumstances under which Shankaraiah referred the petitioner in those proceedings as landlord was entirely different and even if Shankaraiah admitted the petitioner therein as owner, the same would not bind the respondents herein. It is also her submission that statement of a dead person is a very weak piece of evidence and substantial rights of parties cannot be decided on such statement that too in rent control proceedings. It is also her submission that though the record filed by the petitioner itself shows that Shankaraiah paid rents to Hari Bhavan Dharmasala, Shankaraiah falsely deposed that petitioner therein was the owner of the premises. In the above circumstances, when the part of the statement is apparently false and seems to have been given with an oblique motive to evict the tenant therein, no sanctity should be given to such statement. It is also her submission that the documents filed by the petitioner do not show the house number and other particulars of the schedule premises, therefore they do not pertain to the petition schedule premises. It is also submitted that the respondents have been paying municipal taxes as owners of the property and when there is a serious dispute with regard to title the Rent Controller has no jurisdiction to try the matter. In support of her contention, she has relied on the decisions reported in Ameena Bee v. Noorjahan Begum[1], Yelamarti Veera Venkata Jagannadha Gupta v. Vejju Venkateswara Rao[2] and Avulapalle Mallijarjuna v. N.T. Chengalarayappa[3]. Sri R.A. Achuthanand, learned counsel for the petitioner/landlord, submitted that the father of the respondents Shankaraiah himself executed a rental deed and that the receipts were issued to him showing the receipt of rents from him and that Shankaraiah himself deposed before the Rent Controller in R.C. Nos. 215 of 1974 and 377 of 1989, wherein he had categorically admitted that he was the tenant of the petition schedule premises. It is also submitted that PW.3 is an attestor to the rental deed and he has categorically supported the case of the petitioner. It is also submitted that now the respondents executed a sale deed in favour of third party during the pendency of the proceedings and the same is illegal and invalid. He has also taken me through the evidence and submitted that RW.1 himself admitted that his father gave evidence in earlier Rent Control proceedings admitting that he is a tenant of the premises and that the said statement given by Shankaraiah is admissible under Section 32 of the Evidence Act. He further submitted that it is sufficient if the landlord proves that he has been receiving rents or entitled to receive rents and there is no need for him to prove his title to the petition schedule premises. In support of his contentions he has relied on the decisions reported in Mohd. Shafi v. Hafeez Mohammed (died) by LRs[4], N. Ananda Rao v. P. Naga Anjeswara Rao[5], Ratanlal Soni v. Nityanand Sanghi (died per LRs) and others[6], Kopparan Venkatappa Chetty v. Udaysankar Royal Varu[7]. The only point that arises for consideration is whether the denial of title by the respondents is bona fide or not? The settled legal position is that whenever there is a denial of title by a tenant, the Rent Controller has to examine whether the said denial of title is bona fide or not. If it appears that there are no reasonable grounds to believe that the dispute raised by the tenant is bona fide and if it appears that the landlord has prima facie title to the property or that he can be treated as a landlord within the definition of landlord under the Act then the Rent Controller has jurisdiction to entertain the petition. But, if the facts and circumstances reveal that the landlord has no title to the property or that he cannot be treated as a landlord within the definition of landlord or that the denial of title by the tenant has some reasonable basis and in view of the controversy a declaration is necessary by a civil Court to decide the dispute of title of the landlord, then the Rent Controller has to direct the landlord to seek a declaration from the Civil Court or direct the parties to approach the Civil Court for appropriate relief. In the light of the above settled legal position, we have to look into the facts of the present case. The petitioner’s simple case is that he is the owner of the non- residential mulgi bearing Municipal No.22-5-227 of Kali Kaman, Hyderabad. According to him, the husband of the first respondent and father of respondents 2 and 3, namely M. Shankaraiah was the tenant of the said mulgi and that it is an oral tenancy and that the agreed monthly rent is Rs.1,000/- exclusive of electricity consumption charges and property tax. His further case is that the respondents paid rent for the month of July 2003 on 07.08.2003 and obtained receipt No.18 and thereafter they failed to pay rent in spite of repeated demands and committed willful default. Whereas the respondents have denied the jural relationship between them and the petitioner and their contention is that they have been in occupation of the petition schedule premises as absolute owners and that the father-in-law of the first respondent namely Brahmaiah purchased the petition schedule premises from late Nizam while continuing as a tenant and that Shankaraiah never paid any rents to the petitioner. The petitioner has also filed a rejoinder denying the contentions of the respondents. The petitioner has been examined as PW.1. According to PW.1 his predecessors purchased the petition schedule mulgi in the name of firm Zindamal Heeralal Sahu from HEH Nizam and by the time of purchase the said mulgi was in the occupation of Badraiah, who is the brother of Brahmaiah, and after purchase of the property Badraiah executed a rental deed dated 21.03.1956 in favour of Nityanand, Kartha of Zindamal Heeralal Sahu and after the demise of Badraiah, M. Shankaraiah and respondents continued to be the tenants by paying rents. PW.2 is doing money lending, silver and gold business. According to him, late Bramhaiah and Badraiah were tenants of Mulgies Nos.22-5-226 and 227 and they executed rental deeds in favour of Nityanand, the uncle of the petitioner, in his presence and that he has attested the rental deeds. The rental deeds were marked as Ex.A7. This witness also admitted that in first two lines of Ex.A7 there are blanks in the place of house number, ward number and block number. The Municipal number is mentioned as 22-5-227. He has also admitted that no date is mentioned in Ex.A7. He deposed that he has seen the payment of rents by Badraiah and Brahmaiah to Nityanand. He denied the suggestion that Ex.A7 was prepared in collusion with the petitioner. He has also denied that Brahmaiah and Badraiah never signed the rental deeds and that Brahmaiah purchased the property in 1953 from Nizams. According to PW.3, he was a tenant of mulgi No.22-5-229 and that his grand father obtained the said mulgi on rent from Nityanand Sanghi, the paternal uncle of the petitioner. According to PW.3, Brahmaiah and Badraiah, who are the fathers-in-law of the first respondent and grand fathers of respondents 2 and 3, obtained the mulgies Nos.22-5-226 and 22-5-227 on rent from Nityanand Sanghi and after their demise Shankaraiah continued as a tenant and that Shankaraiah used to pay rents. However, PW.3 admitted that he came to know that Brahmaiah and Badraiah originally obtained premises from Nityanand Sanghi and it may be about 45 or 50 years back. When he was asked as to whether Brahmaiah purchased the property from late Nizam, PW.3 deposed that he does not know whether Brahmaiah purchased the property from late Nizam. According to PW.4, the petitioner is the owner of the mulgies bearing Municipal Nos.22-5-226 and 227, and that Shankaraiah, the husband of the first respondent, gave letter on 01.10.1970 agreeing to pay the property tax of mulgies under his occupation as a tenant and that he is an attesting witness to the said document. This witness also admitted that he has not seen the title deeds of the petitioner nor any agreement between the petitioner and the respondents. However, he has denied that Sankaraiah never paid rents to the petitioner and that he was owner of the property. On behalf of the respondents, the second respondent was examined as RW.1. As seen from the evidence of RW.1, his grand father Brahmaiah had purchased the petition schedule property from Nizam while continuing as a tenant and that his grand father bequeathed the said property to his father Shankaraiah. It is also his case that his father is the owner of the property and that his father never paid rents to the petitioner and that his father expired on 09.03.2004 and that the respondents became the owners of the property. RW.1 claims that the sale deed shows that the petition schedule property was purchased by Brahmaiah from Dinyar Jung. He admitted that he is having papers containing the signatures of his father. However, when Ex.A26 is confronted to him he says that it does not contain the signature of his father. RW.1 admitted that his brother received Ex.A2. According to RW.1, his father used to sign in English, but not in Telugu. But when he was further cross-examined he admitted that he got personal knowledge about his father deposing in other case. RW.1 further deposed that though he is having documents containing the signatures of his father he cannot file those documents into the Court. When a tenant denies the title of the landlord, documentary evidence assumes importance. Ex.A1 is the plan showing the petition schedule property. Ex.A2 is the office copy of the notice issued to the respondents, wherein the petitioner/landlord alleged that the respondents failed to pay the rents from August 2003 till August 2004. Ex.A3 is the postal acknowledgment, Ex.A4 is the returned postal cover and Exs.A5 and A6 are the photographs. Ex.A7 is the rental deed (in urdu) executed by one Badraiah. It reveals that Badraiah obtained mulgi bearing No.22-5-227 from its owner and possessor Nityanand partner from Zindalal Heeralal Saheb Sahu on 21.03.1956. However, the columns such as house number, ward number and block number are kept blank in the said rental deed. Ex.A8 is the translation copy of Ex.A7. Ex.A9 is the original receipt issued by MCH addressed to Zindamal Heeralal Saheb Sahu and the house numbers are mentioned as 22-5-225, 226, 227, 228, 230 and 231. It appears that the property tax was paid under Ex.A9. Ex.A10 is the demand notice issued to Zindamal Heeralal Saheb Sahu. Exs.A11 to A19 are the receipts said to have been issued by Shankaraiah showing the payment of house rent. In Exs.A11 to A19 the owner name is shown as J.K. Sanghi HB. But, admittedly, these receipts do not bear the signature of Shankaraiah and it is not clear as to who signed on all these receipts at the place of tenant. It was suggested to PW.1 that all these receipts are forged documents. Ex.A20 to A24 are the receipts issued by Mohd. Yousufuddin in favour of the petitioner in respect of mulgi No.22-5-229. Since they do not pertain to the respondents, the respondents are not bound by the same. Ex.A25 is the copy of deposition of Shankaraiah in R.C. No.377 of 1989. As seen from the same, Shankaraiah seems to have deposed that he is the tenant of premises No.22-5-226 and 227 and paying rents and monthly taxes directly to MCH and admitted that the petitioner therein is the owner of the above two mulgies. It appears that R.C. No. 377 of 1989 was filed for evicting the tenant from the mulgi 22-5-224. A reading of the evidence of Shankaraiah reveals that he had deposed that there is no trust by name Hari Bhawan Dharmasala and that the suit mulgi and other mulgies are not the Trust properties at any time and the petitioners are not the managing trustees at any time as there is no Trust. However, he had admitted that the entire property was put in auction by Sarfekhas prior to 1947 and that he does not know whether the respective tenants have purchased respective mulgies by depositing amounts with Sarfekhas. However, he admitted that the receipts for mulgies are given in the name of Hari Bhawan. He had also admitted that he had never seen the title deeds of the petitioner and that in the rent receipts the name of the petitioner is not shown as owner of the property. He had further deposed that one Govindaram and Sisram are the employees of Hari Bhawan Dharmasala for the last 20 years and that he used to pay rents to Govindaram and Sisram and that Sisram was collecting rents from other tenants. He had also admitted that previously Govindaram and Sisram used to sign rent receipts. He says that he does not remember when PW.1 started passing rent receipts. According to him, PW.1 used to sign in Hindi. He admitted that Ex.X2 bears the signature of Sisram. He further admitted that Ex.X1 reveals that Govindaram and Sisram were managing Hari Bhawan Dharmasala and that Dharmasala was given for Poojas, marriages and Yagnas etc. He further deposed that he does not know whether the property in their occupation is registered in the name of Hari Bhawan Dharmasala as owner of the property. It was suggested to him that PW.1 was collecting rents as one of the trustees of Hari Bhawan from the tenants of the mulgi. Thus, it is clear that Shankaraiah had never seen the title deeds of the petitioner therein and he was paying rents to the employees of Hari Bhavan Dharmasala. In the above circumstances, much importance need not be given to his version that the petitioner therein was the owner of the property. When he was paying rents to Hari Bhavan Dharmasala his admission that he was a tenant of the petitioner falls to ground. Ex.A26 is the certified copy of sale deed vide document No.1705 of 1993 showing that Shankaraiah sold house bearing No.17- 6-222 to one Ahmed Arif Mohiuddin. Since it is only a certified copy, the signature of Shankaraiah cannot be verified from that document. Ex.A27 is the letter said to have been issued by Shankaraiah to the petitioner undertaking to pay property tax. It is an admitted case that Shankaraiah and his father Brahmaiah were regularly paying taxes to the Municipal Corporation of Hyderabad. When they were regularly paying the municipal taxes it is not clear under what circumstances the petitioner again obtained an undertaking from Shankaraiah. As far as the documents filed by the respondents are concerned, Exs.R1 to R5 are the receipts issued by Sarfekhas showing that Brahmaiah was tenant for 1353 to 1357 Fasli. Ex.R6 is the receipt showing that Shankaraiah paid municipal tax for the house Nos.226 and 227. Ex.R7 is the copy of sale deed dated 27.02.2008 executed by the respondents in favour of Md. Abdul Gaffar in respect of mulgies Nos.22-5-226 and 227. Today, I have disposed of connected C.R.P. No.3843 of 2010 between same parties and the issues involved in both these revisions are one and the same. Of course, some documents filed in that case are not filed in this case. That revision petition relates to another mulgi No.22-5-226. From the above documentary evidence adduced by the petitioner himself, prima facie it appears that originally the premises belonged to Hari Bhawan Dharmasala, Kali Kaman, Hyderabad. I am making it clear that I am deciding the issue of title of the petitioner to the petition schedule premises and under the rent control proceedings we are not expected to decide the title. My endeavour is to verify whether there appears to be a genuine dispute with regard to the title of the petitioner to the petition schedule premises or not. It has to be seen that the rental deed dated 21.03.1956 said to have been executed by Brahmaiah was in favour of firm Zindamal Heeralal Saheb Sahu. But, admittedly, rents were collected on behalf of Hari Bhawan Dharmasala, Kali Kaman, Hyderabad. The trustees of Dharmasala used to collect rents from the tenants and the rents were collected till 17.02.1994 in the name of Hari Bhawan. Initial receipts show that it was referred as Hari Bhawan Dharmasala and subsequently it was referred as Hari Bhavan. So, when the rents were collected by Hari Bhavan Dharmasala it is not clear how a rental deed was executed in favour of firm Zindamal Heeralal Saheb Sahu and what is the relationship between Hari Bhavan Dharmasala and firm Zindamal Heeralal Saheb Sahu and who is the real owner of the property. There is nothing on record to show that the firm Zindamal Heeralal Saheb Sahu became the owner of the property. It is also not clear what is the relationship between Nityanand Sanghi and Zindamal Heeralal Saheb Sahu and Hari Bhawan Dharmasala. The version of Shankaraiah in the earlier proceedings that, there is no Trust by name Hari Bhawan Dharmasala or that the suit mulgies and other mulgies are not the Trust properties, is quite contrary to the receipts in Exs.A43, 44 and 45 (filed in CRP No.3843 of 2010). These receipts reveal that Shankaraiah has paid rents in favour of Hari Bhawan Dharmasala. Now Shankaraiah was made to speak that there is