* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Civil Revision Petition No. 3843 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.3843 of 2010 Order: This C.R.P. is filed challenging the order dated 29.06.2010 passed in R.A. No.96 of 2009 by the Additional Chief Judge, City Small Causes Court, Hyderabad, confirming the order dated 25.08.2009 passed in R.C. No. 129 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 case of the petitioner, in brief, is as follows. He is the owner and landlord of the non-residential building/mulgi bearing No.22-5-226 situated at Kalikaman, Hyderabad. Originally the husband of the first respondent and father of the respondents 2 and 3, namely M. Shankaraiah was the tenant of the said petition schedule mulgi and the tenancy was oral on month to month basis as per English calendar. The agreed rent is payable by 10th of every succeeding month. M. Shankaraiah died on 09.03.2004. The respondents became the tenants of the petition schedule premises. The present monthly rent is Rs.1,000/- exclusive of electricity consumption charges and property taxes. His further case is that the respondents paid rent for the month of July 2003 on 07.08.2003 and obtained receipt No.17 and thereafter they failed to pay the rent in spite of repeated demands. Therefore, he got issued a legal notice dated 17.09.2004 to the respondents calling upon them to pay the arrears of rent from August 2003 to August 2004. Though the second respondent received the said notice, but there is no reply from him and the notices sent to the other respondents were returned as ‘unclaimed’. Alleging that the respondents have committed willful default, the petitioner filed the eviction petition under Section 10(2)(i) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’). 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 mulgies 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 mulgies from Nizam while continuing as tenant and that her father-in-law Brahmaiah died in September 1956, who bequeathed the schedule mulgies 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 petitions are not maintainable. After the death of respondent No.1, respondents 2 and 3 filed additional counter and denied that the respondents paid rent to the petitioner on 07.08.2008 and obtained receipt No.17. Then the petitioner filed a rejoinder denying the claim of the respondents and asserting his right in the petition schedule mulgi. The further case of the petitioner is 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 and the said admission operates as estoppel against the respondents. 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 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 A45 were marked. On behalf of the respondents RW.1 was examined and Exs.R1 to R12 were marked. The learned Rent Controller, on appreciation of the entire oral and documentary evidence, came to the conclusion that the petitioner has discharged his initial burden by examining PWs.3 and 4 and marking documentary evidence in Exs.A29 and A36 and having taken into consideration previous statement of Shankaraiah, held that the jural relationship is proved between the parties and that the respondents/tenants are liable to be evicted from the petition schedule premises. Since the same has been confirmed by the appellate authority, the respondents are in revision before this Court. 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 of 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 2 and 3 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 2 and 3 and now basing on the deposition said to have been given by their father the present petitions have 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 case is that he is the absolute owner of the petition schedule property. His case is that his predecessors have purchased the petition schedule premises in the name of firm Zindamal Heeralal Sahu from HEH Nizam and that one Nityanand was karta of the said firm and that the father-in-law of the first respondent Brahmaiah executed a rental deed on 21.03.1956 in favour of Nityanand and subsequently after the demise of Brahmaiah, the husband of the first respondent Shankaraiah paid him rents. When he was asked a question whether Nityanand Sanghi has given any authorisation to him to represent and file the case, PW.1 replied that it is a Hindu undivided family property fallen to his share and thus he became the owner of the petition schedule premises. Subsequently, he admitted that he has not filed any documents such as title deeds to show that the petition schedule property fell to his share and that he is the owner and landlord of the said property. It has come in the evidence that Nityanand Sanghi is the paternal uncle of the petitioner i.e., petitioner is the brother’s son of Nityanand, and that Nityanand has got three sons. On behalf of the petitioner, PW.2 has been examined. According to PW.2, 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.2, the father-in- law of the first respondent was inducted as a tenant by Nityanand Sanghi and after the demise of Brahmaiah his son Shankaraiah continued as a tenant and that Shankaraiah used to pay rents to the petitioner. However, PW.2 admitted that he came to know that Brahmaiah 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.2 deposed that he does not know whether Brahmaiah purchased the property from late Nizam. On behalf of the petitioner another witness was examined as PW.3, who is aged about 90 years. PW.3 is doing money lending, silver and gold business. According to him, late Brahmaiah and Badraiah were tenants of Mulgies Nos.22-5-226 and 227 and they executed rental deeds in favour of Nityanand, uncle of the petitioner, in his presence and that he has attested the rental deeds. The rental deeds were marked as Ex.A24. This witness also admitted that in first two lines of Ex.A24 there are blanks in the place of house number, ward number and block number. Municipal number is mentioned as 22-5-227. He has also admitted that no date is mentioned in Ex.A24. According to this witness, Nityanand has three sons and the petitioner is the brother’s son of Nityanand. According to this witness, during the life time of Brahmaiah he paid rents to Nityanand. He denied the suggestion that Ex.A24 was prepared in collusion with the petitioner. He has also denied that Brahmaiah never signed in Ex.A24 and that Brahmaiah purchased the property in 1953 from Nizam. According to PW.4 the petitioner is the owner of the petition schedule mulgies and that Sankaraiah, 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 Shankaraiah 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 Sankaraiah. 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 is 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. As far as the documents filed by the petitioner are concerned, Ex.A43 is the rent receipts book filed by the petitioner himself. According to him, on all the receipts, the tenant has signed. However, some of the receipts seem to have been signed by M. Ratnaiah. These receipts are for the period from 03.08.1972 to 09.09.1976. A perusal of the said receipts makes it clear that the rents were collected on behalf of Hari Bhawan Dharmasala, Kali Kaman, Hyderabad. As far as the person, who received the rents, is concerned, the signatures reveal that different persons have received the rents on different dates. Ex.A44 is another rent receipts book for the period from 13.04.1983 to 24.03.1989. Some of the receipts bear the signature of M. Shankaraiah. The receipts are issued in respect of House No.22-5-227. The name of the owner is shown as Hari Bhawan in all these receipts. Ex.A45 is another rent receipts book from 19.05.1989 to 17.02.1994. In these receipts also the owners name is shown as Hari Bhawan. In these receipts nobody has signed on behalf of Hari Bhawan on several receipts. In Exs.X1 and X2 also the owners name is shown as Hari Bhawan. Ex.A40 is the certified copy of sale deed dated 16.06.1993 said to have been executed by Shankaraiah in favour of Ahmed Arif Mohiuddin. Since it is a certified copy of the document, the signature of Shankaraiah cannot be verified from this document. Ex.A39 is another receipt book from 05.05.1998 to 06.08.2002. In this receipt book the owner name is shown as J.K. Shanghi (Petitioner/landlord). Ex.A36 is the Xerox copy of the deposition of Shankaraiah in R.C.C. No.377 of 1989. Of course, this deposition bears the signature of Shankaraiah. Exs.A31 to A35 are the receipts issued by the petitioner to one Mohd. Yousufuddin in respect of premises No.22-5-229. Ex. A30 is the demand notice issued by the Revenue Inspector, Hyderabad. It has to be seen that this notice is issued to Zindalal Heeralal (Bhawan) in respect of premises Nos.22-5-223 to 236. There is another agreement of sale issued by Chairman, Sarfekhas Mubarak Deen Yar Jung by the order of Sarkare Ali stating that the mulgies No.5775/542 to 339/542, situated at Kaman Shambhu Pershad, Hyderabad were under the tenant and occupant Brahmaiah, S/o Ramaiah who had been paying rents thereof till date and that on 07th April 1953 AD he agreed to purchase these and he had remitted in his office total sale consideration amount of Rs.3,300/- and as per the rules the agreement of sale has been completed in his favour and that Sarfekhas Bazarat should not have any demands over it and that the same was got registered with the office of the Registrar, Balda on 07th April 1953 AD. It has to be seen that this document is filed by the petitioner himself and it is more than thirty years old document. It appears that since it is a Xerox copy and original document is not filed, this document was not marked. However, in view of the importance of this document and in the interest of justice, I consider it just and reasonable to mark the said document as Ex.X3. The original of Ex.X3 is very old document i.e., more than 30 years old and it clinches the issue. It prima facie show that the father-in-law of the first respondent late Brahmaiah purchased the property from the then late Nizam and, therefore, the claim of the respondents appears to be true. It is most unfortunate that the counsel for the respondents in the lower Court did not verify all the documents. Great responsibility lies on the advocates to guide their clients. They must study all the documents available in file and insist their clients to bring all the documents. If proper foundation is not laid at the initial stage, the parties who have genuine case may loose their case and great injustice may be done to the parties. The Courts have to do substantial justice to the parties and advocates must assist the Court in the interest of justice. Ex.A29 is the copy of deposition of M. 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. Exs.A28 and A27 are the receipts issued by the Municipal Corporation of Hyderabad showing the payment of tax by Zindamal Heeralal through cheques. Ex.A26 reveals that Shankaraiah signed a letter stating that he is the tenant in the premises Nos.225, 226 and 227 and paying monthly rents and agreed to pay municipal property tax and the same letter is addressed to the petitioner. However, there is no date on the said letter. It is an admitted case that Shankaraiah and his father Brahmaiah were regularly paying municipal taxes since beginning. When they were regularly paying municipal taxes, it is not clear under what circumstances the petitioner again obtained an undertaking from Shankaraiah. Ex.A25 is a rental deed said to have been executed by Brahmaiah on 21st March 1956 in respect of Premises No.226. It was executed in favour of firm Zindamal Heeralal Saheb Sahu. It is argued that premises number seems to have corrected in the original of Ex.A25. It has to be seen that Shankaraiah was in possession of three premises as per Ex.A26. Admittedly, old house number, ward number, block number and new house number are not given in Ex.A25. Therefore, it cannot be said that the same pertains to the petition schedule property. Exs.A6 to A23 are the receipts from 05.09.2002 to 07.08.2003. Ex.A3 is the acknowledgment, Ex.A4 is the returned postal cover, Ex.A2 is the copy