Partly allowed

D.Narsaiah, (Died) per LRs v. N.padmanabham

Telangana HC7 Oct 2010CRP/1783/2007

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition against a Rent Control order. Finding that the Courts below failed to properly evaluate contradictory admissions regarding the landlord's title, the High Court held that the Rent Controller lacked jurisdiction if the tenant's denial of title was bona fide. The matter was remanded for fresh disposal to determine if the title dispute is bona fide.

What did the court decide?

The impugned order of the Rent Appellate Authority and the Rent Controller were set aside. The matter was remanded to the Rent Controller for fresh disposal after giving a specific finding on the bona

D.Narsaiah, (Died) per LRs Vs N.padmanabham — Landlord and Tenant | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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THURSDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND TEN

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PRESENT

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THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR

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CIVIL REVISION PETITION No.1783 of 2007

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BETWEEN

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D. Narsaiah and others.

…PETITIONERS

AND

N. Padmanabham.

…RESPONDENT

Counsel for the petitioners: MR. SUBBARAO KORRAPATI

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Counsel for the Respondent: MR. K.A. RAJASHEKARA REDDY

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The Court made the following: -

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THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.1783 of 2007

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O R D E R:

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This revision is directed against the order passed by the Rent Control Appellate Authority (The Principal Senior Civil Judge), Warangal in R.C.A.No.9 of 2002, whereby he has confirmed the order and decree dated 29.07.2002 passed by the Rent Controller (Principal Junior Civil Judge), Warangal in R.C.C.No.2 of 1998. 2. The brief facts necessary for disposal of this appeal are as follows:

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3. The 1^st petitioner herein was the sole respondent in R.C.C.No.2 of 1998. After his death, his Legal Representatives have been brought on record as per orders in C.M.P.No.7497 of 2009 dated 02.08.2010. The parties will be referred as they are arrayed before the Rent Controller for the sake of convenience. 4. The petitioner filed the petition against the sole respondent under Section 10 of A.P.Buildings (Lease, Rent and Eviction) Control Act, seeking eviction of the respondent from the petition schedule property ie., open place bearing Municipal No.15-4-320 situated at Matwada, Warangal (hereinafter referred as petition schedule property). The petitioner claims that he is the owner of the petition schedule property and that the respondent obtained the premises on lease on a monthly rent of Rs.200/-, but failed to pay the rents from January, 1993 and the total due of rent amount comes to Rs.12,600/- by the end of March, 1998. A notice was issued to the respondent on 21.12.1995 calling upon him to pay the arrears of rent. The respondent in spite of receiving the notice neither paid the due amount nor gave any reply and therefore the respondent committed wilful default and that the petitioner required the premises for his bona fide requirement of carrying on Kirana and General Stores with his son. It is also the case of the petitioner that the respondent herein filed O.S.No.595 of 1993 on the file of the Principal Junior Civil Judge, Warangal for permanent injunction

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against the petitioner and the said suit was decreed, subject to the result of the suit filed by the petitioner in O.S.No.206 of 1996. It is also the case of the petitioner that he filed O.S.No.206 of 1996 on the file of the II Additional Junior Civil Judge, Warangal for eviction and recovery of arrears of rent. The said suit was returned for want of jurisdiction and in view of the passing of the Rent Control Act and the petitioner filed the present petition for eviction of the respondent from the petition schedule premises.

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5. The respondent contested the matter and as seen from the counter filed by him, his case is that the property stands in the name of one Mallaiah who has got wife, son and three daughters and that the petitioner has to establish his relationship to the said Mallaiah and till then he cannot be treated as a landlord of the schedule premises. It is also stated that the lease commenced about three decades back on a monthly rent of Rs.25/- and it was enhanced from time to time and that the original premises was demolished by Warangal Municipality during road widening programme and therefore, only vacant land located on the rear side remained and in that open land the respondent had again erected a tin shed and eking out his livelihood by conducting shoe repairing shop in the name and style of Krishna Shoe Repairing Centre. It is also his case that he had obtained service connection No.E-2916 from Electricity Department. It is also the case of the respondent that the mother of the petitioner by name Lachamma used to collect the rents and that the respondent never paid any rent to the petitioner and that the petitioner never claimed any rent from the respondent. With regard to the bona fide requirement, the respondents case is that the petitioner got three non-residential buildings bearing Nos.13-1-163, 15-4-340 and 341 and that the claim of the petitioner is not bona fide.

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6. The trial Court framed the following points for consideration:

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“1. Whether there is landlord and tenant relationship between the petitioner and respondent?

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2. Whether the present petition is not maintainable because the building let out to the respondent was already demolished by the Municipal Corporation?

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3. Whether the respondent committed default in payment of rents?

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4. Whether the petitioner requires the premises for his bona fide requirements?

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5. Whether the denial of title of the petitioner by the respondent is true?”

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7. On behalf of the petitioner, the petitioner himself was examined as PW.1 and one S.Sudhakar Rao was examined as PW.2 and Exs.A.1 to A.11 were marked. On behalf of the respondent, respondent himself was examined as R.W.1 and no documents have been marked.

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8. The learned Rent Controller came to the conclusion that the property belongs to the husband of Lachamma by name Dasaiah and that the petitioner is no other than the son of Lachamma and, therefore, the petitioner is the owner and landlord of the petition schedule premises. It is also found that the respondent is running a shop in the name and style of Krishna Shoe Repairing Centre and the contention of the respondent that there is no building is not correct. On point No.3, the learned Rent Controller came to the conclusion that the respondent committed default in payment of rents. On Point No.4, the learned Rent Controller came to the conclusion that the petitioner failed to prove that the petition schedule premises is required for his business. Thus, the point was answered against the petitioner. Coming to the 5^th point, the

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learned Rent Controller held that in the complaint given to the police, the respondent alleged that Lachamma and his son both tried to evict him and the copy of the said complaint in Ex.A.11 proves the same and, therefore, the denial of title is not bona fide. The appellate Authority, however, confirmed the orders of the learned Rent Controller. The appellate Court observed that the very filing of suit O.S.No.595 of 1993 on the file of the Principal Junior Civil Judge, Warangal, reveals that the respondent has accepted that the petitioner N.Padmanabham is the owner of the property and that the denial of title of N.Padmanabham for the respondent is not bona fide.

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9. Heard the arguments.

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10. The learned counsel for the petitioner herein i.e., for the tenant submits that the appellate Court failed to appreciate the evidence in proper perspective and failed to consider the admissions made by P.W.1 himself, which itself proves that he has no title to the plaint schedule property.

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11. The learned counsel for the respondent/landlord submits that the petitioner/tenant himself filed I.A.No.2030 of 1993 in O.S.No.595 of 1993 wherein he referred the respondent herein and his mother as the owners of the suit schedule property and thus his main submission is that an admission made by the tenant in the earlier proceedings have to be taken into consideration and when he himself admitted that the respondent is the landlord of the suit schedule property, there is no need to enquire into that aspect. In the above circumstances, it appears that both the Courts below have not considered the admissions made by the petitioner and the respondent and its affect, which resulted in miscarriage of justice. 12. The only point that arises for consideration is whether the

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courts below have taken into consideration the entire evidence in deciding the question whether the denial of title by the tenant is bonafide.

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13. Normally in the High Court will not interfere with regard to the findings of Courts below on an issue of fact. But, however, when it is clear that the Courts below have failed to read the evidence and gave their findings based on no evidence or when it is clear that there is misreading of evidence, such findings have to be treated as perverse and such findings have to be set aside. The learned counsel for the petitioner has furnished a copy of the deposition of PW.1-N.Padmanabham, wherein N.Padmanabham had categorically stated as follows:

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“The petition schedule property stood in the name of Mallaiah in the Municipal records. I never tried to mutate my name or my parents name in respect of the schedule property in the municipal records. (In the deposition, he has given his father’s name as Dasaiah). There is a dispute with regard to the ownership of this property. Witness volunteers that one Gunda Vishwanatham having purchased this property did not obtain mutation in his favour in the municipal records. There is no document to show that I am absolute owner of the schedule property. There are no documents to show that the property is my ancestral property. It is true the Municipal Corporation issued a demand notice to the respondents to pay the property tax, they filed the demand notice along with the petition before the Court. I agreed to pay the property tax. It is true that I did not pay the property tax so far. I did not sell the property to Vishwanatham. It was sold by my partner. There are no documents showing my share and share of my partner in the schedule property. The said Vishwanatham

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was not paying any property tax. I am not paying property tax for this property since 1985. Prior to that myself, Somasekharam and Vaikuntam used to pay the property tax. We used to pay the property tax in the name of Mallaiah. The said Mallaiah has got two brothers. Both Mallaiah and his wife died prior to my birth. It is true that I have no occasion to know who are the legal heirs of Mallaiah and his wife as they died prior to my birth. Vaikuntam and Dasaiah are the brothers of Mallaiah. The said Dasaiah is my father. Vaikuntam has got only one daughter. Vaikuntam and his wife are no more. Their daughter Vanamala is alive. I have got two sisters. There was no partition between myself and my sisters”.

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14. In the chief-examination he had deposed as follows:

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“ The respondent is my tenant and occupied the schedule premises on lease on a monthly rent of Rs.200/-. I am the absolute owner of the schedule property. It is my ancestral property. It is in the name of my senior paternal uncle ie., Nerella Mallaiah in the municipal records. My uncle is no more now. His wife is also died. They have no issues”.

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15. The above admissions create a doubt as to whether the petitioner is the absolute owner of the property and whether the denial of title of the petitioner by the respondent is bona fide. It appears that the Courts below have failed to read the evidence in proper perspective and committed mistake in drawing the conclusions.

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16. Even if the tenant on earlier occasion in some other proceedings knowingly or unknowingly or with his limited knowledge had admitted the title of the landlord, whether that itself

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confers any right on the landlord and whether the landlord can simply rely on the admission made by the tenant in the earlier proceedings and proceed with the matter without establishing his title we are of the view that the Rent Controller is required to examine the entire evidence on record in proper perspective and come to a just conclusion by taking into consideration the admissions made by the tenant and as well as the admissions made by the landlord and thus consider even subsequent changes while coming to a just conclusion.

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17. Where in a case the denial of title by the tenant is not bonafide and if the learned Rent Controller, on consideration of the material before him, comes to a conclusion that the denial of the title of the landlord by the tenant is not bonafide, then he can proceed with the rent control matter, but where in a case the denial of the title by the tenant appears to be bonafide, then the learned Rent Controller looses his jurisdiction and he cannot try the rent control case. In such circumstances, the parties have to approach the civil Court for appropriate relief. The Courts below have not considered this aspect and particularly, the evidence of respondent himself, which creates a doubt that there is a title dispute with regard to the suit schedule property.

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18. In the circumstances, it appears that the matter requires reconsideration and the courts below have to give a specific finding whether the denial of the title of the respondent/landlord is a bonafide or not. On appreciation of the evidence, if they come to conclusion that the denial of the title by the tenant is bonafide. Then the landlord has to establish his right and title over the petition schedule property in a civil Court. In the above circumstances, I consider just and reasonable to set aside the impugned order and remand the matter to the Rent Controller for fresh disposal in accordance with law.

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19. In the above circumstances, the orders passed by the rent appellate Court is set aside and consequently, the orders passed by the learned Rent Controller also stand set aside. The Rent Controller may dispose of the matter as expeditiously as possible. 20. The Civil Revision Petition is accordingly allowed. There shall be no order as to costs.

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_______________________ Justice B.Chandra Kumar

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Date.7.10.2010 mrb

D.Narsaiah, (Died) per LRs v. N.padmanabham

Case brief

What is this about?

What did the court decide?

D.Narsaiah, (Died) per LRs v. N.padmanabham

Case brief

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