M/S. Boorugu Mahadev & Sons & Anr vs Sirigiri Narasing Rao & Ors

2) In order to appreciate the issue involved in this appeal, which lies in a narrow compass, it is necessary to set out the relevant facts in brief infra.

3) The premises bearing No. 9-3-692 to 694, Regimental Bazar, Secunderabad (hereinafter referred to as “suit premises” was purchased jointly by the predecessors of the appellants herein under a registered sale deed dated 28.07.1904 from Sirigiri Yellaiah, and others, which they sold in discharge of pre-existing mortgage debt to avoid court attachment in O.S. No. 178 of 1900 on the file of the District Court. Since the date of sale, the respondents’ predecessors continued to occupy the suit premises and thus became the tenants of the appellants’ predecessors-in- title on a monthly rent of Rs.10/- in addition to payment of property taxes, conservancy and electricity charges etc. under an agreement dated 01.08.1904. The said agreement was incorporated in a book maintained by the appellants’ predecessors in the regular course of business and was duly signed by the respondents’ predecessors by way of rent every month. After the death of Sirigiri Vishwanadham, i.e., respondents’ predecessor, his four sons became the tenants and continued to pay monthly rent at the rate of Rs.75/- besides other charges. The respondents are the grand children of late Sirigiri Vishwanadham, who continued to occupy the suit premises as the tenants of the appellants. However, the respondents stopped paying rent w.e.f. 01.06.1987 to the appellants. Since the rent was not being paid in spite of repeated requests and demands, a legal notice was sent by the appellants to the respondents on 22.07.1992, to which interim reply was sent on 03.08.1992 followed by a detailed reply on 30.08.1992 and thereafter there were exchange of legal notices ensued between the parties.

4) Since despite service of the legal notice sent by the appellants to the respondents demanding arrears of rent, the respondents failed to comply with the demand, the appellants filed Eviction Petition being R.C. No. 165 of 1993 before the Principal Rent Controller, Secunderabad against the respondents under Section 10 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as “the Act”). The eviction was sought essentially on the grounds, viz., default in payment of monthly rent from 01.06.1987 till the time of eviction petition and secondly denial of the appellants’ title to the suit premises.

5) Denying the allegations made in the eviction petition, the respondents stated that the sale deed dated 20.07.1904 under which the ancestors of the appellants had purchased the suit premises was a mortgage with a right of re-conveyance whereas the respondents’ predecessors continued to be the owners of the suit premises. According to them, the suit premises was offered only as a security for borrowed amount and subsequently their forefathers discharged the liability of borrowed amount. However, due to some reasons, the respondents’ forefathers could not obtain the re-conveyance of the suit premises in their name, though ownership of suit premises remained with the respondents’ forefathers. It was also averred that for the last fifty years, there was no payment of rent either by them or their forefathers in respect of the suit premises whereas their forefathers paid the property tax etc. as the owners. It was also averred that the appellants fabricated the records to file an eviction petition against the respondents.

7) Challenging the said order, the appellants filed first appeal being R.A. No. 93 of 1998 before the Additional Chief Judge, City Small Causes Court at Hyderabad.

8) By order dated 17.09.2002, the Additional Chief Judge, Small Causes Court allowed the appeal and while setting aside the order of the Rent Controller directed the respondents to vacate and handover the vacant possession of the suit premises to the appellants within two months from the date of the judgment. It was held by the appellate Court that the appellants’ predecessors were the owners of the suit premises on the strength of sale deed-Ex.P.7. It was also held that the sale in question in relation to the suit premises between the parties was not a transaction of mortgage as alleged by the respondents but it was an outright sale in favour of the appellants’ predecessors-in-title. It was also held that the respondents failed to adduce any evidence to prove that the transaction of sale of suit premises was a mortgage and the borrowed amount having been paid, the mortgage was redeemed. It was also held that the respondents’ predecessors were, therefore, in possession of the suit premises as tenants and later became the appellants’ tenants by operation of law. It was also held that the respondents failed to pay the arrears of rent from 01.06.1987 and hence they committed willful default in payment of rent rendering themselves liable to be evicted from the suit premises under the provisions of the Act.

10) Learned Single Judge of the High Court, by impugned judgment dated 06.09.2005, allowed the revision petition filed by the respondents herein and set aside the judgment of the Additional Chief Judge, Small Causes Court and restored the order of the Rent Controller.

6) was inadmissible in evidence, hence the eviction petition was liable to be dismissed on these two grounds also. These submissions, in our considered view, deserve to be rejected at their threshold because the same were not raised in the written statement filed by the respondents before the Rent Controller and nor were urged at any stage of the proceedings. We cannot, therefore, allow such factual submissions to be raised for the first time in this appeal.

25) In the light of foregoing discussion, the appeal succeeds and is hereby allowed. The impugned judgment is set aside and that of the judgment of the first appellate Court dated 17.09.2002 in R.A. No. 93 of 1998 is restored. As a consequence thereof, the eviction petition filed by the appellants against the respondents in relation to the suit premises is allowed. The respondents are, however, granted three months’ time to vacate the suit premises from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further the respondents would deposit all arrears of rent till date at the same rate at which they had been paying monthly rent to the appellants (if there are arrears) and would also deposit three months’ rent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and cost awarded by this Court be deposited within 15 days from the date of this order.

26) The appeal is accordingly allowed with cost which quantify at Rs.5000/- to be paid by the respondents to the appellants.