THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 5071 of 2006 Date of order: 13.8.2010 Between: Sathyanarayana Sahu …Petitioner and Ravi Shankar Yadav and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 5071 of 2006 ORDER: This is a tenant’s revision directed against the order of eviction passed by learned Rent Controller, Visakhapatnam and confirmed by lower appellate authority-cum-Prl. Senior Civil Judge, Visakhapatnam in RCA No. 4 of 2004, dated 14.8.2006. The petitioner is hereinafter referred as to “the tenant” and the respondents as “the landlords” for the sake of convenience as they were arrayed before the Courts below. The landlords filed RCC No. 17 of 2000 claiming eviction of the tenant on the ground that they have purchased the petition schedule property bearing door No. 31-29-2, Govinda Road, Allipuram Ward, Visakhapatnam from its erstwhile owner Surabhi Ratna Kumar under a registered sale deed dated 26.9.1998- Ex.A1, accompanied by a plan-Ex.A8. They alleged that the tenant is in possession of two rooms shown in red colour in Ex.A8, whereas the entire property purchased by the landlords is demarcated and shown in green colour. It was alleged that after the purchase, the tenant was informed, but he failed to pay the rent and thereafter a lawyer’s notice dated 18.12.1999-Ex.A3 was issued to him as well as to the vendor of the landlords. The landlords also alleged that they required the schedule premises for their additional accommodation. On the ground that the tenant has failed to pay the rents as well as on the additional accommodation, they sought eviction of the tenant. In the counter filed by the tenant, he disputed the relationship of landlord and tenant and he claimed that the original shop room in his possession admeasuring about 15 sq. yards was taken on lease from original owner Surabhi Ratna Kumar during 1995-96 and claims that the said property was sold to the tenant on 14.12.1999 for a valuable consideration under a registered sale deed. The said registered sale deed was kept pending with the Joint Registrar as the present landlords raised objections. It is in that view the tenant disputed the ownership of the landlords and claimed ownership in himself. He further alleged that the tenanted premises bears municipal door No. 31-29-3/1 and consists of two rooms and the original rent was Rs.100/- per month and later the tenant advanced Rs.25,000/- to the landlords which did not carry any interest and in lieu thereof, the tenant was not required to pay any rents. He further alleged that he paid another sum of Rs.15,000/- to the previous owner Surabhi Ratna Kumar and obtained an agreement of sale for the tenanted premises for a total consideration of Rs.60,000/- and later paid further amounts of Rs.5,000/- and Rs.10,000/- on 10.6.1998 and 14.10.1998 respectively and further on 14.12.1999 the erstwhile landlord Surabhi Ratna Kumar executed a sale deed. On the basis of the above pleadings, the following points were framed by the learned Rent Controller, (1) Whether the denial of title of the petitioners by the respondent is bona fide? (2) Whether there is landlord and tenant relationship between the petitioners and the respondent? (3) Whether the respondent committed willful default in payment of rent? (4) Whether the petition schedule premises is required to the petitioners for their personal use as additional accommodation? (5) To what relief? On behalf of the landlords, petitioner/landlord No.2 was examined as P.W.1 and Exs.A1 to A7 were marked, whereas the tenant examined himself as R.W.1 and one witness as R.W.2 and marked Exs.B1 to B9. Previous owner of the petition schedule premises Surabhi Ratna Kumar was examined through Court as C.W.1. The learned Rent Controller, on consideration of the evidence, came to the conclusion that the denial of title by the tenant cannot be said to be bona fide and ordered eviction on that ground while answering point No.1. On point No.2 also the learned Rent Controller recorded a finding that there is a relationship of landlord and tenant between the parties. On point No.4 regarding additional accommodation pleaded by the landlords was, however, negatived. So also the plea of willful default under point No.3 was also held in favour of the tenant. Aggrieved by the said findings, an appeal was preferred by the tenant and under the impugned order of the lower appellate authority, it has found that the denial of title by the tenant is not bona fide and concurred with the findings of the learned Rent Controller. To the extent of additional accommodation pleaded by the landlords, the lower appellate authority accepted the same and reversed the finding of the learned Rent Controller on that aspect. While accepting the plea of additional accommodation, the lower appellate authority also went into the question of relative hardships and found that even on that ground the landlords have established their case. The rest of the findings of the learned Rent Controller were confirmed by the lower appellate authority and eviction was ordered. Heard Mr. Chandraiah Naidu, learned counsel appearing for the petitioner/tenant and Mr. P.R. Prasad, learned counsel appearing for the respondents/landlords. The learned counsel for the tenant contended that the very finding of both the courts below with respect to the premises purchased by the tenant is not sustainable, inasmuch as the sale deed in favour of the tenant was preceded by an agreement of sale and the said agreement of sale, though not marked in the present proceedings, the additional counter mentions that the said agreement of sale was further followed by a sale deed dated 14.12.1999. He, therefore, submits that even if the sale deed was not released initially and kept as a pending document, the registration of the sale deed marked as Ex.B5 was already over on 14.12.1999 when it was presented for registration and all formalities for registration were completed on that day itself. He also submits that in order to see that the sale deed is not released to the tenant, the landlords filed OS No. 3177 of 1999 seeking injunction restraining the common vendor of the parties from registering the sale deed in favour of the tenant and obtained an injunction order on 15.12.1999 and on account of the aforesaid civil suit and the orders passed thereon, the registering authority did not release the sale deed. The learned counsel states that subsequently the sale deed has been registered and released as per the directions of the District Registrar in proceedings No. E2/361/2009, dated 4.3.2009 and has produced a copy of the sale deed along with other documents by way of additional evidence in this revision petition and the said sale deed has now been registered vide document bearing No. 649/2009, dated 27.2.2009. The learned counsel states that under Section 47 of the Registration Act the said registration on 27.2.2009 would relate back to the date of execution i.e., 14.12.1999 and thereby the tenant has established his ownership over the schedule premises. He submits that this document could not be produced before the courts below as it is a subsequent document and as such the original sale deed has been produced by way of additional evidence along with a copy of telegram notice dated 5.11.2002 showing that he notified the Sub-Registrar of wrongfully withholding the document. He also filed certified copy of decree in OS No. 3977 of 1999 filed by the landlords for permanent injunction, which was decreed in favour of the landlords ex parte on 27.11.2001 together with a copy of injunction application moved therein. He filed the aforesaid documents primarily to point out that the door number of schedule property mentioned therein is 31-29-2 and note that the property purchased by the tenant which bears a different municipal door No. 31-29-3. The learned counsel for the tenant, therefore, submits that the denial of title by the tenant cannot be said to be mala fide in view of the fact that the tenant bona fide believed that he is the owner of the property and had agreement of sale as well as registered sale deed in support of his case and thereby the finding of both the courts below on the denial of title is required to be set aside. He also contended that the plea of additional accommodation, though negatived by the learned Rent Controller, was accepted by the lower appellate authority in the absence of any appeal or cross- appeal by the landlords and as such the said finding is liable to be set aside on that short ground. The learned counsel also cited the evidence of previous owner C.W.1 to contend that even according to C.W.1, he never sold the petition schedule premises to the landlords and that C.W.1 confirmed the sale of the petition schedule premises to the tenant. The learned counsel also made a reference to two other suits viz., OS No. 1328 of 2003 filed by the landlords against the tenant for injunction seeking to restrain the tenant from demolishing western side wall of the petition schedule premises and it was, however, decreed on 29.7.2004 and the appeal vide AS No. 498 of 2004 against the same was also dismissed on 20.9.2006 and another suit being OS No. 1205 of 2002 which was filed by the tenant to set aside the decree in OS No. 3977 of 1999 obtained by the landlords against the tenant restraining the registration and release of sale deed in favour of the tenant. The main thrust of the learned counsel for the tenant is that denial of relationship of landlord and tenant is not mala fide and is, on the contrary, bona fide, but it was erroneously held otherwise by both the courts below. The learned counsel also made reference to and relied upon a decision of this Court reported in K. P. Janakiram Vs. K. Suguna Bai [1] for the proposition that merely because the tenant has failed to prove his title, it cannot be said that denial of title of the landlord on the bona fide plea that the tenant is the owner of the property, cannot be said to be mala fide denial. Another decision of this Court in Avulapalle Mallikarjuna and others Vs. N.T. Chengalarayappa [2] to contend that even if the tenant is not able to establish his title, his possession cannot be treated as that of a tenant automatically. Per contra, the learned counsel for the landlords submits that both the courts below have reached to correct conclusions and in support of the same he seeks to rely upon the original counter filed by the tenant dated 24.11.2000 to point out that it was the specific case of the tenant in paragraph-9 that the petition schedule premises is not part and parcel of the landlords’ sale deed dated 26.9.1998 and the tenant also claimed that he is the absolute owner of the petition schedule property having purchased the same under sale deed dated 16.12.1999 from Surabhi Ratna Kumar. It was further stated in paragraph-9 that the property covered under the landlords’ sale deed and the tenant’s sale deed are different as the door numbers are different and while the tenant’s premises bears the door no. 31-29-3/1, the landlords’ property bears the door No. 31-29-2. He also points out that there was no mention of an agreement of sale preceding the tenant’s sale deed in the original counter as well as in additional counter filed by the tenant. Further the tenant filed an additional counter on 20.11.2001 and in that for the first time, it was stated that the landlord agreed to sell the schedule premises to the tenant under an agreement of sale dated 11.3.1998 for Rs.60,000/- and the said agreement of sale was, however, never filed in the proceedings. He also points out that the specific pleading of the tenant that he is in possession and enjoyment of the schedule premises originally as a tenant and subsequently as owner in his own right and therefore, the said additional counter clearly shows that the tenant had set up title in himself and had also denied the relationship of landlord and tenant by claiming that he himself is the owner of the schedule premises. The learned counsel, therefore, points out that the finding of both the courts below that the denial of title by the tenant being not bona fide is clearly sustainable. To the extent of additional accommodation, which was allowed by the lower appellate authority, the learned counsel would rely upon the provisions of Order 41, Rule 33 of the Civil Procedure Code to contend that even without filing an appeal or cross-appeal, the landlords can support the decree in appeal even on the grounds which are held against him. The additional accommodation was, therefore, rightly accepted by the lower appellate authority. To the extent of claim of the tenant on the basis of subsequent sale deed dated 14.12.1999, the learned counsel states that admittedly the sale deed of the landlord is at least one year earlier thereto i.e., dated 26.9.1998 and even if it is accepted that the subsequent registration of tenant’s sale deed would relate back to the date of sale, the same cannot be traced back to the date of agreement which the tenant is attempting. Further the plan-Ex.A8 accompanying Ex.A1-sale deed of the landlords clearly shows that the schedule premises is part of property sold to the landlords and as such having sold the said property to the landlords, the vendor had no right to sell the very same property to the tenant on 14.12.1999 as alleged by the tenant. The learned counsel also relied upon a decision of the Supreme Court reported in Ramchandra Dagdu Sonvavane (dead) by LRs and others Vs. Vithu Hira Mahar (dead) by LRs and others [3] for the proposition that in civil suits which are referred to above the very same case set up by the tenant was rejected and the suits of the landlords were decreed and the suit filed by the tenant in OS No. 1328 of 2003 was dismissed, not only by the trial Court, but also by the appellate Court as is evident from certified copies of judgments and decrees produced in additional evidence. The learned counsel, therefore, states that in view of the aforesaid decision of the Supreme Court, the principles of res judicata are applicable and even in a suit for injunction if the issue of title is indirectly in issue, the findings therein would be res judicata in subsequent proceedings between the same parties. Like the aforesaid application of the tenant for additional evidence being CRP MP No. 2330 of 2010, the respondents-landlords also filed a similar application vide CRPMP No. 7248 of 2008 proposing to file certified copies of decrees and judgments in OS No. 1328 of 2003 on the file of the Rent Controller-cum-IV-Addl. Junior Civil Judge, Visakhapatnam as well as judgments and decree in AS No. 498 of 2004 on the file of the VI-Addl. District Judge, Visakhapatnam to be received in evidence by stating that these documents which are now available have a bearing on the controversy and these two documents may also be received in evidence. Since the said documents are certified copies of judgments inter parties herein, the learned counsel for the landlords requested that these documents be also accepted. In view of the fact that both the learned counsel have no objection to receive additional evidence filed by either of them, CRPMP No. 2330 of 2010 filed by the tenant as well as CRP MP No. 7248 of 2008 filed by the landlords are accordingly ordered and the said documents are received and marked accordingly. In the light of these contentions on either side, the points that arise for consideration are, (1) Whether the eviction order passed by the courts below on the ground that the tenant had denied the title of the landlords mala fide is justified? (2) Whether the lower appellate authority could consider the landlords’ plea of additional accommodation in the absence of any appeal or cross-appeal by the landlords? (3) Whether the finding of the lower appellate authority directing eviction of the tenant on the ground of additional accommodation pleaded by the landlords is justified? POINT NO.1:- The municipal door numbers of the respective properties as claimed by the landlords as well as by the tenant show that the properties are different, but the municipal door numbers by itself are not decisive, inasmuch as there is inconsistency in claiming the municipal door number by the tenant himself. The schedule premises so far as the eviction petition is concerned shows that the eviction was sought from the building bearing door No. 31-29-2 and is also described by the boundaries on all four sides. Though the tenant claims that the property purchased by him bears door No. 31-29-3/1, the property described in his sale deed which is produced as additional evidence in this Court gives the door number of the premises as 31-29-3 with the boundaries on all four sides. Further in the counter and additional counter filed by the tenant, he proceeds to make a claim that he is in possession of the schedule premises as owner which bears door No. 31-29-2. Apart from this contradiction, Ex.A1-sale deed read with Ex.A8- plan attached to the sale deed of the landlords is decisive in the matter of ascertaining the exact extent of the schedule property vis-à-vis the property claimed by the tenant. The lower appellate authority has specifically considered the said aspect in the light of the evidence of C.W.1 wherein it is shown that the petition schedule property described in the said plaint in red colour is part of the property conveyed to the landlords under Ex.A1-sale deed and Ex.A8-plan attached to it. The learned Rent Controller also found that the original landlord-C.W.1 did not know the new house numbers. The learned Rent Controller also discussed the boundaries under the landlords’ sale deed-Ex.A1 and compared it with the tenant’s sale deed-Ex.B5 and found that the schedule premises is part of the property covered by Ex.A1-sale deed and as such consequently held that the denial of title claimed by the tenant is clearly not bona fide. The evidence of C.W.1, the common vendor of the parties, records as follows, “The entire building consists of 3 door numbers i.e., 32-26-10/1, 32-26-10/2 and 32- 26-10/3. The said door numbers are old door numbers. Subsequently the door numbers are changed. But I do not know the new door numbers.” He further states that, “In the year 1998, the petitioners purchased Madras Terrace building from me under original Ex.A1……….The said registered sale deed was registered on 29.9.1998………..I did not sell the portion which is purchased by the respondent under Ex.B5, dt. 14.12.1999 to the petitioners. The portion purchased by the respondent under Ex.B5 dt. 14.12.1999 is different from the portions purchased by the petitioners under Ex.A1 sale deed dated 26.9.1998.” Based on the above evidence of C.W.1 the tenant contends that his denial has to be treated as bona fide. I am unable to accept the said contention. Firstly, the oral evidence of C.W. 1 cannot contradict the registered sale deed admittedly executed by him under Ex.A1, accompanied by plan-Ex.A8. His evidence, therefore, cannot be relied upon or looked into in terms of Section 91 and 92 of the Evidence Act to contradict the written and registered document. Secondly C.W. 1 executed two different sale deeds, one in favour of the landlords in 1998 and another in favour of the tenant in 1999. Apart from the fact that the landlords’ sale deed-Ex.A1 is anterior in point of time, after execution of the sale deed to the extent of area covered thereunder, C.W.1 ceased to have any locus or proprietary title to execute any further document in favour of any person when he was already divested of the property covered under Ex.A1. I have seen Exs.A1 and A8 from the record as well and in the light of the above circumstances, the finding reached by the courts below on this aspect is clearly sustainable and cannot be said to be open for interference in revisional jurisdiction. The decisions relied upon by the learned counsel for the tenant in K. P. Janakiram Vs. K. Suguna Bai (1st supra) and Avulapalle Mallikarjuna and others Vs. N.T. Chengalarayappa (2nd supra) would not help the tenant as they are distinguishable from the facts of the present case. In the latter case, there was no evidence that the possession of the respondent therein was that of a tenant as there was not a single instance of the said respondent paying rent nor the landlord and tenant relationship was established. Whereas in the present case admittedly the petitioner is the tenant of the previous landlord Surabhi Ratna Kumar and the tenant claims that the said Surabhi Ratna Kumar offered to sell the tenanted premises and ultimately sold the same to him. However, on facts the sale deed in favour of the landlords is one year prior to the sale deed pleaded by the tenant. The said decision, therefore, does not help the tenant’s case. The plea of the tenant as discussed above and the evidence on record, therefore, clearly supports the finding that the denial of title by the tenant is mala fide. The point No.1 is answered accordingly in faovur of the landlords. POINT NO.2:- There is no difficulty in answering this point which was raised by the learned counsel for the tenant in view of the provisions of Order 41, Rule 33 of the Civil Procedure Code which specifically provides that in appeal, although the respondents or parties have not preferred any appeal or objection, the appellate court has power to pass any decree and make any order which ought to have been passed. Similarly Order 41, Rule 22 of the Civil Procedure Code provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree, but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour. Thus the filing of appeal or cross-objections to the extent of adverse finding was not necessary so far as the landlords are concerned. The point No.2 is accordingly answered in favour of the landlords. POINT NO.3:- The landlords pleaded requirement of additional accommodation in terms of Section 10 (3) ( c ) of the Andhra Praesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The landlords are admittedly in possession of rest of the building. The pleadings in paragraph No. 3 (e) of the eviction petition are as follows, “The parents of the petitioners, the petitioners with their families and an unmarried sister are together residing in the 3 portions purchased by them. They are also doing business in a portion of the building. The petitioners require the schedule premises for their personal use and occupation as an additional accommodation.” The lower appellate authority has found that the said averment was established by evidence of P.W.1 and in the absence of any evidence on the part of the tenant, the lower appellate authority was of the view that the learned Rent Controller was not right in rejecting the said requirement. The lower appellate authority also considered the aspect of the relative hardship and came to the conclusion that as P.W.1 is residing with his family and unmarried sister, besides doing business in a part of the premises, his requirement certainly outweighs the hardship which will be caused to the tenant. The said issue, therefore, was upheld by the lower appellate authority. I do not find any error in the said finding as well which warrants correction by this Court. The point No.3 is also answered in favour of the landlords. In view of my findings on points 1 to 3, the revision petition is liable to be dismissed. Since the petitioner/tenant would be put to some hardship on account of eviction, he is granted three months’ time from today