*HON’BLE SRI JUSTICE R.KANTHA RAO + C.R.P.Nos.2061,2062,2046 & 2083 of 2006 % Date: 29.03.2011 Between: # Ramesh Kumar Jain …Petitioner And $Ghansyam Das Rathi and another …Respondents ! Counsel for petitioners: Sri MVS Suresh Kumar ^ Counsel for respondent No.1: Sri MVVLNGK Murthy ^ Counsel for respondent No.2: Sri Devakinandan Rathi < GIST: >HEAD NOTE: ? Cases referred: THE HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.Nos.2061,2062,2046 & 2083 of 2006 Date:29.03.2011 Between: Ramesh Kumar Jain …Petitioner And Ghansyam Das Rathi and another …Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.Nos.2061,2062,2046 & 2083 of 2006 COMMON ORDER: C.R.P.No.2061 of 2006 is filed against the order dated 24.03.2006 in E.A.No.32 of 2005 in E.P.No.8 of 2005 in R.C.No.253 of 2004 on the file of the II Additional Rent Controller, Hyderabad. C.R.P.No.2062 of 2006 is filed against the order dated 24.03.2006 in E.A.No.31 of 2005 in E.P.No.9 of 2005 in R.C.No.254 of 2004 on the file of the II Additional Rent Controller, Hyderabad. C.R.P.No.2046 of 2006 is filed against the order dated 12.04.2006 passed in I.A.No.300 of 2006 in R.A.No.126 of 2006 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad. C.R.P.No.2083 of 2006 is filed against the order dated 12.04.2006 passed in I.A.No.299 of 2006 in R.A.No.127 of 2006 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad. I have heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondents. Common questions of fact and law would arise for consideration in relation to the same subject matter between the same parties. Hence, these revision petitions are disposed of by a common order. Shortly stated, the facts relevant for the purpose of disposal of these revision petitions are as follows: The first respondent filed R.C.Nos.253 of 2004 and 254 of 2004 against the second respondent seeking eviction. These two rent control cases are in respect of two portions of the same building and the eviction was sought on the ground of willful default in payment of rent. The second respondent who appeared before the Rent Controller in response to the notices issued in the rent control cases gave an undertaking to vacate the premises and to pay arrears of rent if three months time is granted to her. The learned Rent Controller granted two months time and also passed an order granting two months time to vacate the premises and to pay the arrears of rent and further ordered that in the event of the second respondent not complying with the undertaking, the first respondent can evict her from the scheduled mentioned premises by due process of law. Subsequently on the ground that the second respondent failed to vacate the premises, the first respondent filed E.P.Nos.8 and 9 of 2005 seeking delivery of the schedule mentioned premises by evicting the second respondent therefrom. Having come to know about the execution proceedings, when the bailiff came to the premises to execute the warrant of delivery in pursuance of the order passed in execution petitions, the revision petitioner who is no other than the son of the second respondent claiming to be the owner of the property and also in possession of the schedule premises offered resistance to the execution, filed interlocutory applications viz. I.A.No.210 of 2004 in R.C.No. 253 of 2004 and I.A.No.211 of 2004 in R.C.No.254 of 2004 under Rule 23(7) of A.P. Buildings (Lease, Rent, and Eviction) Control Rules, 1960 r/w Section 151 CPC claiming himself to be the owner and possessor of the premises, offered resistance to the execution and sought to adjudicate his claim by holding an enquiry and to allow his claim petition. The learned Rent Controller having made an enquiry into the claim preferred by the revision petitioner, dismissed both the petitions disbelieving the memorandum of understanding relied upon by the revision petitioner holding that the transfer of the immovable property (the schedule mentioned premises) being worth more than Rs.100/- shall be effected by a registered document. The learned Rent Controller also took into consideration the fact that no documentary evidence is adduced by the revision petitioner in poof of his title and possession over the property and accordingly dismissed both the claim petitions by his order dated 16.12.2004. Feeling aggrieved, the revision petitioner filed R.A.Nos.126 of 2006 and 127 of 2006 which were heard and disposed of by the Additional Chief Judge, City Small Causes Court (Appellate Authority, under Rent Control Act), Hyderabad. The learned Appellate Authority apart from agreeing with the findings recorded by the Rent Controller that no evidence is placed by the revision petitioner in proof of his title to the schedule mentioned property dismissed both the appeals i.e. R.A.No.126 of 2006 and R.A.No.127 of 2006 on the ground that against the impugned order which is passed in execution proceedings only a revision lies under Section 22 of the Rent Control Act but not an appeal under Section 20 of the Act. The present revisions are filled challenging the said judgments rendered by the learned Appellate Authority under the Rent Control Act. Although several contentions like the eviction order was brought into existence by respondents 1 and 2 in collusion with each other and sale deeds under which the first respondent said to have acquired the title to the scheule premises were executed by the second respondent in his favour subsequent to the eviction order passed in the eviction petitions have been urged, I would like to dispose of the revision petitions on the principal issue whether against the orders passed in execution proceedings by the Rent Controller the appeals are competent before the Chief Judge, City Small Causes Court, (Appellate Authority, under the Act), Hyderabad, I am not inclined to examine the merits of the rival contentions for the simple reason that if an appeal is incompetent before the learned Chief Judge, City Small Causes Court, he is not supposed to pass any order on merits in the rent appeals filed before him. A combined reading of Sections 20 and 22 of A.P. Buildings (Lease, Rent, and Eviction) Control Act, 1960 indicates that a revision lies to the High Court against an order passed or proceeding taken under the Act by the Rent Controller in execution under Section 15 or by the appellate authority in an appeal under Section 20. If it is any other order passed by the rent controller, an appeal lies to the appellate authority viz. Chief Judge, City Small Causes Court in the cities of Hyderabad and Secunderabad and elsewhere to the Subordinate Judge in the State having original jurisdiction over the area where the subject matter of dispute is situate. It is clear from the language of Sections 20 and 22 of the Act that a revision lies to the High Court against the order in relation to execution taken up under Section 15 of the Act or by the Appellate Authority under Section 20 of the Act. Here the impugned order though passed by the appellate authority while deciding an appeal, the learned Appellate Authority dismissed the appeal on the ground that it is not maintainable. Unambiguously the order impugned before the learned Appellate Authority is in respect of an order passed by the Rent Controller, in a claim petition filed by the revision petitioner before him under Rule 23(7) of the A.P. Buildings (Lease, Rent and Eviction) Control) Rules, 1961 claiming title in himself and to be in possession of the schedule mentioned premises and to allow his claim. Since apparently the petition filed under Rule 23(7) of the Rules and the order passed thereon pertain to execution proceedings, only revision lies to the High Court against the said order under Section 22 of the Act but not an appeal under Section 20 of the Act. Therefore, in my considered view, the learned Appellate Authority under the Rent Control Act rightly refused to entertain the appeals and declined to pass any order on merits thereon. The learned Appellate Authority thus is perfectly justified in dismissing both the Rent Appeals. However, since the revision petitions have been filed against the order passed by the Appellate Authority, this Court is competent to entertain the revisions by virtue of its powers under Section 22 of the Act, more so, as the revision petitioners also filed C.R.P.Nos.2061 and 2062 of 2006 against the orders dated 24.03.2006 passed by the II Additional Rent Controller, Hyderabad in E.A.No.31 of 2005 in E.P.No.9 of 2005 in R.C.No.254 of 2004 and in E.A.No.32 of 2005 in E.P.No.8 of 2005 in R.C.No.253 of 2004, the procedural invalidity which has been raised by the respondents that against the orders in I.A.Nos.210 of 2004 and 211 of 2004, the appeals before the Appellate Authority are incompetent is no more relevant and they loose their significance. Therefore, no separate orders need be passed in C.R.P.Nos.2046 of 2006 and 2083 of 2006 and they are closed. C.R.P.No.2061 of 2006 and C.R.P.No.2062 of 2006 are filed against the orders passed in claim petitions filed by the revision petitioner under Rule 23((7) of the A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 (hereinafter called as ‘ Rent Control Rules 1961’) read with Section 151 C.P.C. There is a significant difference in the enquiry in a claim petition filed under Order XXI Rule 58 of C.P.C. or an enquiry under Rule 101 of Order XXI C.P.C. pursuant to the proceedings under Rules 97 and 99 of the Order XXI of C.P.C. on one hand and the enquiry in the claim petition filed under Rule 23(7) of Rent Control Rules, 1961 on the other. If the execution before the Rent Controller is resisted and obstructed by any party other than the person against whom the order of eviction was passed, the rent controller after holding a summary enquiry into the facts of the case and if he is satisfied that the resistance or obstruction was without any just cause, issues a warrant to evict the obstructor by force and deliver possession of the premises to the person in whose favour the order of eviction was passed. On the other hand, if the rent controller is satisfied that the resistance or obstruction was occasioned by any person other than the person against whom the order of eviction was passed claiming in good faith to be in possession of the premises or building on his own account or on account of the some person other than the person against whom the order of eviction was passed, he shall make an order disallowing the execution against that person. Thus, the rent controller upon holding such summary enquiry into the facts only decides the issue whether the execution can be allowed or disallowed, but while making an enquiry into the application made under Rule 23(7) of the Rent Control Rules, 1961 the Rent Controller will not decide the question of the right title or interest of the person causing obstruction to execution. Whereas, the enquiry contemplated under Rule 58 or Rule 101 of Order XXI of C.P.C. is akin to the regular trial and the executing Court will decide the right title and interest of the person who makes claim or causes obstruction. Therefore, it has to be kept in mind that in the execution proceedings taken up pursuant to the order passed by the rent controller under the Rent Control Act, if any objection is caused by a third party, who sets up the right or title in himself, the scope of enquiry before the Rent Controller in such an event is only very limited to the extent of deciding the sole question whether the execution has to be allowed or disallowed. In no case, the rent Controller is competent to decide upon the issues relating to right or title by embarking upon a detailed enquiry. In the instant case, the revision petitioner, who caused obstruction to the execution took up by the first respondent/decree-holder is no other than the son of the second respondent/judgment-debtor. His contention is that originally all the properties of their family including the schedule mentioned premises are joint family properties. He admits that the schedule mentioned premises were in the name of his mother/second respondent, but says that it was purchased in her name with the joint family funds. He based his claim on a memorandum of understanding dated 12.10.1993 entered into among him, his younger brother - Mr. Madanlal and his mother, the second respondent and lastly his sisters. The said memorandum of understanding even according to him, was reduced to writing. Under the said memorandum of understanding and another agreement dated 02.07.1995 the schedule mentioned premises was said to have been allotted to him on condition of his agreeing to pay Rs.15 lakhs to his brother Madanlal and Rs.10 lakhs to his mother-second respondent and accordingly he paid the amount. His version is that in pursuance of the said memorandum of understanding the second respondent executed a General Power of Attorney dated 08.02.1994, according to which he was given exclusive possession and full rights over the schedule mentioned premises including the collection of rents. According to him, the original memorandum of understanding is in the custody of the mediator for the dispute Mr Kailash Chand Jain. His version is not so specific as to the possession of the original memorandum of understanding. He states that it is in possession of Mr. Pushpender Kumar Jain, who is said to be the Secretary of Digamber Jain Samstha. He also states that as per the agreement entered into among the family members he undertook to repay the loan due to the Bank of Rajasthan. His principal contention is that the first respondent/Decree Holder and the second respondent/judgment debtor, who is his mother, brought into existence a collusive eviction order and the second respondent was never in possession of the schedule mentioned premises. He asserts that in terms of the memorandum of understanding and subsequent agreement dated 02.07.1995 entered into among his family members the second respondent has no right or interest in the schedule mentioned premises and in fact after the said family arrangement she was permanently shifted to Pandaripur, Aurangabad in the State of Maharastra and she is residing with his brother Madanlal and that she had set up the first respondent with a view to obtain possession of the schedule mentioned premises by fraudulent means. In his counter which was adopted by the second respondent/judgment debtor, decree holder/first respondent contended that the revision petitioner is neither a third party nor an independent title holder of the property, he only has exclusive rights in the property and he filed the execution petition since the second respondent continued to occupy the premises in spite of the eviction order passed against her by the rent controller and despite submitting an undertaking before the rent controller to vacate the premises within the time stipulated in the undertaking. According to the first respondent, the revision petitioner was originally staying with his mother-second respondent, he has never been in exclusive or independent possession. The first respondent says that he is the title holder and the second respondent is the tenant, who suffered order of eviction. His version is that the documents relied upon by the revision petitioner are all concocted and fabricated documents for the purpose of litigation and to deprive him of the schedule mentioned premises. Thus, contending he sought to dismiss the claim petition. Before the learned rent controller, the revision petitioner was examined as PW.1 and Exs.A.1 to A21 were marked on his behalf. No witness was examined on behalf of the respondents, but Exs.B.1 to B.9 were marked during the course of the cross examination of the revision petitioner. Despite the contention urged on behalf of the revision petitioner that for not entering into the witness box adverse inference has to be taken against the respondents 1 and 2, the learned rent controller rendered the decision against the revision petitioner on the ground that the burden that he acquired exclusive right or title to the schedule mentioned premises is on the revision petitioner and he failed to discharge the same. The learned rent controller took into consideration the following factors, namely, the revision petitioner filed only xerox copy of the memorandum of understanding and the General Power of Attorney allegedly executed by the second respondent which contains so many corrections and overwritings. The learned rent controller rightly held that the xerox copy of memorandum of understanding sought to be relied upon by the revision petitioner is not at all admissible in evidence and no person concerned with the said memorandum of understanding such as his brother, sisters, the scribe or the attestors of the said document were examined by the revision petitioner. The non- examination of Mr. Kailash Chand Jain and Mr Pushpender Kumar Jain, who are allegedly in possession of the memorandum of understanding and the agreement, was one of the crucial aspects considered against the revision petitioner by the learned rent controller. The learned rent controller observed that though the revision petitioner admitted that Mr Kailash Chand Jain is in the Court on 19.09.2005 did not choose to examine him as a witness on his behalf, but took summons to him to Bangalore address as a protext though the true fact is that Mr Kailash Chand Jain is resident of Hyderabad city. The learned rent controller also considered the crucial fact that Ex.A.1 Power of Attorney originally a notarized document signed by Md. Omer, Advocate, and the said advocate was not examined by the revision petitioner to prove that Ex.A.1 was notarized by him and the revision petitioner got it registered nine years after it’s alleged execution i.e in the year 2003 before the District Registrar, Hyderabad. The learned rent controller further took notice of the fact that all the witnesses to the General Power of Attorney are no other than the family members of the revision petitioner, but he did not choose to examine any of them to prove the said General Power of Attorney. The municipal tax receipts marked as Exs.B.2 and B.6 reveal that the second respondent was paying the municipal taxes for the schedule mentioned premises. Ex.B.4 and B.5 voter identity cards indicate that the second respondent has been residing in the schedule mentioned premises. Ex.B.1 is the certified copy of order in I.A.No.914 of 1992 in O.S.No.999 of 1992 on the file of the I Additional Judge, City Civil Court, Hyderabad which shows that the schedule premises is the exclusive property of the second respondent. Ex.B.3 is the certified copy of the first information report in Crime No.79 of 2005 dated 16.04.2005 which revealed that the second respondent has been residing in the schedule premises and she gave the report as she was beaten up by the revision petitioner and his family members. Ex.B.9, the encumbrance certificate revealed that the second respondent purchased the schedule mentioned premises admeasuring 731 sq. yards under sale deed No.577 of 1970. From the documentary evidence adduced by the respondents, therefore, it is amply established that the schedule mentioned premises belongs to the second respondent and she has been residing therein. Ex.A.20 and A.21 are the sale deeds executed by the second respondent in favour of the first respondent and they relate to the schedule mentioned premises. One of the contentions urged by the revision petitioner is that the said sale deeds were subsequent to the filing of the eviction petition by the first respondent and therefore, it has to be necessarily presumed that the eviction proceedings were brought up by the respondents 1 and 2 in collusion to defeat his rights. But the said contention keeping in view the facts and circumstances leading to the litigation and the documentary evidence adduced on behalf of the respondents and considering admissions made by the revision petitioner, the learned rent controller rightly repelled the contention by believing that the amount of sale consideration was advanced by the first respondent to the second respondent long prior to the execution of the sale deeds and therefore, there is no legal infirmity in filing the eviction petition. As I have already stated, the sole question which was to be determined by the learned rent controller was whether to disallow the execution petition filed by the first respondent. If there are any bona fides on the part of the revision petitioner in making claim, the learned Rent Controller on being satisfied that the resistance or obstruction was caused by the revision petitioner claiming in good faith and that he was in possession of the schedule mentioned premises on his own account may disallow the execution petition. But, the entire facts and evidence which have been discussed in detail hereinbefore would make me to concur with the findings arrived at by the learned rent controller, who held that there are no bona fides in the claim put-forth by the revision petitioner. I have already made it clear that the rent controller cannot resort to roving enquiry in to right or title of the parties. His jurisdiction in an application under Rule 23(7) of the Rent Control Rules, 1961 is very limited to decide as to whether there are bona fides in the claim put- forth by the revision petitioner against the decree of eviction which was sought to be executed. The learned rent controller in my view had rightly decided the said issue and dismissed the claim petition filed by the revision petitioner. If the petitioner wants to establish his title to the schedule mentioned premises, he can file a civil suit before the Court of competent jurisdiction, but he cannot resist the execution proceedings. Powers of revision of this Court under Section 22 of the Rent Control Act, 1960 may be wider than those under Section 115 of C.P.C., but such powers do not enable this Court to reappraise the evidence. This Court will interfere with the findings recorded by the learned rent controller only, if they are shown to be perverse or not based on evidence on record or based on irrelevant considerations. The findings recorded by the learned rent controller being appropriate and on adequate reasoning, I am not inclined to take a different view and thus, affirm the findings of the learned rent controller. For the foregoing reasons, the revision petitions fail and they are dismissed. There shall be no order as to costs. _______________ Date:29.03.2011. R. KANTHA RAO, J Note: L.R. copy to be marked. B/O Ccm/kvrm THE HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.Nos.2061,2062,2046 & 2083 of 2006 Date:29.03.2011