Allowed

Smt. M. Sarojini Devi, v. Jugal Kishore Sanghi

Telangana HC28 Sept 2011CRP/3843/2010

Case brief

AI extract

What is this about?

In a civil revision petition challenging an eviction order, the court held that the Rent Controller erred in deciding title without a civil declaration. Noting a genuine dispute and the landlord's failure to prove ownership, the court set aside the lower appellate and single judge orders.

What did the court decide?

The civil revision petition was allowed and the impugned orders of the lower courts were set aside.

Smt. M. Sarojini Devi, Vs Jugal Kishore Sanghi — Landlord and Tenant | Telangana HC (2011)

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*** THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR**

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+ Civil Revision Petition No. 3843 of 2010

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% 28.09.2011

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# Smt. M. Sarojini Devi and others

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Petitioners/Appellants/Respondents

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Vs.

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$ Jugal Kishore Sanghi

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.. Respondent/Respondent/Petitioner

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<GIST:

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>HEAD NOTE:

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! Counsel for petitioners : Smt. D. Pramada

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^ Counsel for respondent : Sri R.A. Achuthanand

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? CASES REFERRED :

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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

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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Civil Revision Petition No.3843 of 2010

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Order:

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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.

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The parties hereinafter will be referred to as they are arrayed before the Rent Controller for the sake of convenience.

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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 10^th of every succeeding month.

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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

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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’).

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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

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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.

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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.

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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

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and tenant between the petitioner and himself and the said admission operates as estoppel against the respondents.

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The following points were formulated by the Rent Controller for consideration.

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1. Whether the denial of the title of the petitioner by the respondents is bona fide?

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2. Whether there is any jural relationship of landlord and tenant between petitioner and the respondents?

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3. Whether the respondents committed willful default in payment of rent?

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4. Whether the petitioner is entitled for eviction of the respondents from the schedule premises?

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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.

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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.

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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

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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

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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 Begu m^[1] , Yelamarti Veera Venkata Jagannadha Gupta v. Vejju Venkateswara Rao^[2] and Avulapalle Mallijarjuna v. N.T. Chengalarayappa^[3] .

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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

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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?

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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.

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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

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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.

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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-inlaw 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

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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.

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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

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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.

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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

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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.

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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 07^th 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 07^th 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,

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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.

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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.

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No. 377 of 1989 was filed for evicting the tenant from the mulgi 22-5224.

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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

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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.

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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

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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 21^st 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 of legal notice and Ex.A1 is plan showing the property.

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As seen from the documents filed by the respondents, there are number of old documents which show that the great grand father of respondents 2 and 3 namely Ramaiah had obtained licence under the Hyderabad Shops and Establishments Act and was paying taxes to the Municipal Corporation of Hyderabad as an occupier. It is also clear that the Superintendent of Sarfekhas issued original receipt in the name of Brahmaiah during 1341, 1351, 1357 and 1359 faslies under Exs.R1 to R10. It is also clear that Shankaraiah himself paid municipal taxes under Ex.R11 on 16.05.1986.

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From the above documentary evidence adduced by the petitioner himself, prima facie it appears that originally the premises

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belonged to Hari Bhawan Dharmasala, Kali Kaman, Hyderabad. I am making it clear that I am deciding the issue of title of the petitioner to the petition schedule premises and under the rent control proceedings we are not expected to decide the title. My endeavour is to verify whether there appears to be a genuine dispute with regard to the title of the petitioner to the petition schedule premises or not. It has to be seen that the rental deed dated 21.03.1956 said to have been executed by Brahmaiah was in favour of firm Zindamal Heeralal Saheb Sahu. But, admittedly, rents were collected on behalf of Hari Bhawan Dharmasala, Kali Kaman, Hyderabad. The trustees of Dharmasala used to collect rents from the tenants and the rents were collected till 17.02.1994 in the name of Hari Bhawan. Initial receipts show that it was referred as Hari Bhawan Dharmasala and subsequently it was referred as Hari Bhavan. So, when rents were collected by Hari Bhavan Dharmasala it is not clear how a rental deed was executed in favour of firm Zindamal Heeralal Saheb Sahu and what is the relationship between Hari Bhavan Dharmasala and firm Zindamal Heeralal Saheb Sahu and who is the real owner of the property. There is nothing on record to show that the firm Zindamal Heeralal Saheb Sahu became the owner of the property. It is also not clear what is the relationship between Nityanand Sanghi and Zindamal Heeralal Saheb Sahu and Hari Bhawan Dharmasala. The version of Shankaraiah in the earlier proceedings that, there is no Trust by name Hari Bhawan Dharmasala or that the suit mulgies and other mulgies are not the Trust properties, is quite contrary to the receipts in Exs.A43, 44 and 45. These receipts reveal that Shankaraiah has paid rents in favour of Hari Bhawan Dharmasala. Now Shankaraiah was made to speak that there is no such Dharmasala and that he never paid rents to the said Dharmasala. It

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has to be seen that Shankaraiah himself admitted that the receipts for mulgies were given in the name of Hari Bhawan. It is not clear on what basis and under what authority the petitioner started collecting rents from 05.05.1998. The possibility of petitioner collecting the rents as an agent or representative of Hari Bhawan Dharmasala, in the above circumstances, cannot be ruled out.

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At the cost of repetition, it must be mentioned that the petitioner who is examined as PW.1 has categorically admitted that he has not filed any title deeds in respect of the petition schedule property to show that he is the owner and landlord. The petitioner claims that his predecessors purchased the property in the name of Zindamal Heeralal Saheb Sahu and Nityanand was the kartha of the family. However, the documents reveal that Hari Bhawan Dharmasala was collecting rents. It is not clear what is the relationship between Zindamal Heeralal Saheb Sahu and Hari Bhawan Dharmasala and Nityanand. Anyhow, there is no evidence to show that the property originally belonged to Zindamal Heeralal Saheb Sahu or Nityanand. Admittedly, no documents executed by Nityanand have been filed transferring the title to the petitioner. It is also not clear how Nityanand has become absolute owner of the property, when the owners name is shown as Zindamal Heeralal. Admittedly, there are no documents executed by Nityanand alienating the property to the petitioner. It is also not clear what is the relationship between Zindamal Heeralal and Hari Bhawan Dharmasala. As seen from the deposition of M. Shankaraiah in earlier RC, he was paying rents to the representatives of Hari Bhawan Dharmasala. Therefore, it appears that the property originally belonged to Hari Bhawan Dharmasala and its employees or representatives or trustees were collecting rents. It is also not clear whether Nityanand was trustee or employee of Hari Bhawan

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Dharmasala. Absolutely, there is no iota of evidence to show that the petitioner has acquired title to the property. Therefore, in rent control proceedings it cannot be declared that the petitioner is the owner of the property or he is entitled to receive rents. Thus, it is clear that the denial of title of the petitioner by the respondents cannot be said to be baseless or not bona fide.

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Learned counsel for the petitioner/landlord argued that the definition of landlord includes any other person who is receiving the rent and, therefore, the petitioner who was admittedly receiving the rent has to be treated as landlord.

¶64

As per Section 2(vi) of the Act, the definition of the landlord is very wide, which is as follows.

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“Landlord’ means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.”

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Explanation:- A tenant who sub-lets a building shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant;

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It has to be seen that the petitioner is not claiming that he is an agent, trustee, executor, administrator, receiver or guardian of Hari Bhawan Dharmasala. It is not his case that he had sub-let the premises to the respondents. It is not his case that he has filed any documents which make him entitled to receive the rents. He has also not filed any documents to show that he is the owner of the building. Of course, he was receiving rents. Merely because he was receiving rents can he be allowed to say that he is the owner of the building,

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particularly when the rents were being collected on behalf of Hari Bhawan Dharmasala previously. As per the definition of “landlord” referred above, landlord means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building. The words ‘includes a person who is receiving’ has to be understood pragmatically. That means the person must be the owner of the building or must be authorized to receive rents by the owner of the building. He must be receiving rents in any one of the capacity as envisaged in the definition. That means either he must be the owner of the building or he must be the original tenant who has sub let the premises to the tenant or he must be an agent, trustee, executor, administrator, receiver or guardian of the landlord, or he must be authorized by the landlord to collect rents. Since there is no iota of evidence to show that the petitioner is the owner of the petition schedule premises, therefore, by no stretch of any imagination it can be said that the petitioner had been collecting rents as owner of the building. Admittedly, no documents have been filed to show that he was authorized to collect the rents. Therefore, merely because he was collecting rents that circumstance alone does not make him owner of the building and cannot make him entitled to claim that he is the landlord of the premises.

¶69

When the property of a Trust or any Dharmasala or endowed for any charitable purpose the agents, trustees, receiver, employee etc., of the Trust or Dharmasala may be collecting rents on behalf of Dharmasala. Merely because they were collecting the rents for some period that does not itself confer any absolute right in them to declare themselves as owners. Such persons cannot initiate rent control proceedings claiming to be landlords and seek eviction of the tenants without any authorization from the landlord merely on the ground that

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previously they were collecting rents. When there is sufficient material to say that he is not the owner of the building or that he was collecting rents as an agent or trustee etc., of the building, he cannot be allowed to set up title and say that he is the owner of the building or that he can seek eviction of a tenant. It is clear that any person who is an agent, trustee, administrator of landlord can maintain the eviction petition against a tenant. But, when such person falsely asserts his title without any basis, probably to grab the property of original owner, he cannot be allowed to say that he has become the landlord of the premises.

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When the record reveals that the owner is someone else and particularly not an individual but an institution such as Trust or Dharmasala, the Courts have to be careful in protecting the public interest. There may be many reasons for non-functioning of that Dharmasala or Trust. There may be several circumstances under which the institution might have become a defunct, but that does not mean that the employees of that institution or any person who was previously dealing with the property of the institution can claim ownership right over the property of the Trust or Dharmasala. When such a situation arises, it may be appropriate for a Rent Controller to simply direct such person who is claiming as a landlord to seek a declaration from the competent civil Court. In such circumstances, when there is a cloud in respect of title of the so called landlord the tenants denial of title cannot be said to be not bona fide.

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The another circumstance in this case is that, admittedly, the respondents alienated the property in favour of the third party and executed a sale deed on 27.02.2008 and got it registered. It is also not in dispute that the petitioner herein filed a civil suit in O.S.No. 604 of 2009 on the file of the I Senior Civil Judge, City Civil Court, at

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Hyderabad, seeking a declaration that the said sale deed is void and to cancel the same. Thus, admittedly, the matter is ceased by the Civil Court.

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It is settled law that the Rent Controller need not make a roaring enquiry with regard to title of the landlord. However, where the title of the landlord is in dispute, the Rent Controller must verify whether such denial of title of the landlord by the tenant is bona fide or not. That means the Rent Controller has to verify whether the landlord has prima facie title to the property. If it appears that the denial of title by the tenant is not bona fide, the Rent Controller can proceed with the matter, but where in a case there is a serious dispute with regard to title and there are circumstances to entertain a bona fide doubt about the title of the landlord, it is always better to direct the parties to seek declaration from the competent civil Court.

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In the case between Avulapalle Mallikarjuna v. N.T. Chengalarayappa (3 supra), relied on by the learned counsel for the respondents/tenants, this Court held that where in a case serious dispute with regard to title exists, it is a fit case for return or rejection of RCC leaving it open to the parties to litigate about the title. In Yelamarti Veera Venkata Jagannadha Gupta v. Vejju Venkateswara Rao (2 supra), also similar view was taken and it was observed that where the jural relationship is in question, the Rent Controller cannot decide the same.

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Reliance is also placed in Ameena Bee v. Noorjahan Begum (1 supra), wherein this Court held that where there is denial of title of landlord by the tenant and when the tenant claimed title in himself under an oral gift and where the jural relationship of landlord and tenant is denied, truth or otherwise of such plea has got to be decided,

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not in a summary way, but by holding a regular enquiry.

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Sri R.A. Achuthanand, learned counsel for the petitioner/landlord, has relied on a decision reported in Mohd. Shafi v. Hafeez Mohammed (died) by LRs (4 supra). As seen from the facts of that case, the dispute was earlier decided by the Civil Court and in the earlier suit for partition it was categorically held that the suit property is not Wakf property and in the subsequent proceedings when the tenant raised a dispute with regard to title it was held that he cannot claim that the property is a Wakf property. It is clear that the facts of that case are entirely different and do not apply to the facts of this case. More over, in that case, only during the pendency of the trial the tenant has taken such a plea and denied the title of the landlord, when in the earlier occasion he was paying the rents to the same landlord. There is no such finding by any civil Court in this case on hand. Therefore, on facts, that case is distinguishable.

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Reliance is also placed on a decision reported in N. Ananda Rao v. P. Naga Anjeswara Rao (5 supra), wherein it was held that concurrent findings of fact by both the Courts below cannot be disturbed in revision. There is no dispute with regard to the principle laid down in the said decision. However, the settled position is that where the findings are perverse i.e., not based on evidence or based on misreading of evidence or non-consideration of material evidence which resulted in gross injustice, such findings have to be set aside in the revision in the interest of justice. Substantial justice has to be done to the parties. Revisional Court should not allow injustice to perpetuate on the ground that there are concurrent findings by the Courts below.

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Reliance is also placed on Ratanlal Soni v. Nityanand Sanghi (died per LRs) and others (6 supra). In that case, the tenant himself,

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in the earlier proceedings, admitted the title of the landlord and moreover it was observed that the landlord being the owner of the property including Dharmasala was entitled to collect rents. It is not the case of the petitioner herein that he is the owner of Dharmasala. It is not clear whether there was any material to show that the rents were previously collected by the Hari Bhawan Dharmasala in that case and how the petitioner therein became entitled to receive the rents. Though it appears that the facts of that case appears to be similar, but it is clear that there was no detailed discussion as to how and on what basis the landlord in that case become the owner of Dharmasala and the petition schedule mulgi. As far as the case on hand is concerned, I am of the considered view that the matter requires a detailed consideration by competent Civil Court.

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No doubt, reliance is also placed in Kopparan Venkatappa Chetty v. Udaysankar Royal Varu (7 supra), in support of his contention that the statement of deceased recorded by competent authority can be proved in subsequent proceedings by producing certified copy of the same. But the settled legal position is that unless the admission said to have been made by a deceased person is against to his own interest, such admissions cannot be treated as conclusive proof. It is settled law that statement of a dead person is very weak type of evidence and it is always open to the other side to show that the facts alleged to have admitted are not correct or that the same were made as a result of mistake or ignorance. I have discussed the statement said to have been made by Shankaraiah in detail in the above paras and the valuable rights of the parties cannot be decided in summary proceedings that too basing on a statement of dead person.

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The Courts below have mainly relied on the deposition of

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Shankaraiah in RCC No.377 of 1989 and accepted the version of the petitioner that Zindamal Heerasal Saheb Sahu which is Hindu undivided firm represented by Nityanand is the owner of the schedule premises without any basis. The Courts below have failed to examine Exs.A43, A44 and A45 which clearly go to show that rents were collected on behalf of Hari Bhawan Dharmasala and the property does not belong to Zindamal Heeralal Saheb Sahu or to Nityanand, but the same appears to be the property of Hari Bhawan Dharmasala. They have also not considered the admission of PW.1 (petitioner) that there are no documents to establish his title to the petition schedule premises. Moreover, in view of Ex.X3, it appears that the claim set up by the respondents require serious consideration by a competent Civil Court. It has to be seen that admissions made by PW.2 who is examined on behalf of the petitioner were taken as admissions of the respondents. Thus, it is clear that the Courts below have not even looked into the receipts Exs.A43, A44 and A45 before passing the orders and their findings are perverse and not based on record. In the above circumstances, the impugned orders are liable to be set aside.

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Accordingly, the CRP is allowed and the impugned orders are set aside. However, in the circumstances, no costs.

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___________________ B. CHANDRA KUMAR, J.

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Date: 28^th September 2011 Nsr

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