Ms.Jessa , Jasantha v. R.Stalin

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION NO.5731 OF 2015 ORDER:

Respondent No.2 in R.C.No.122 of 2010 on the file of Principal Rent Controller, Secunderabad and R.A.No.205 of 2013 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad preferred this revision under Sections 22 of Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short "the Act") challenging the order of the appellate Court directing the petitioner and respondent No.2 to vacate and handover vacant possession of the petition schedule property to the respondent No.1 herein (appellant in the appeal) on various grounds.

Respondent No.1 herein - R.Stalin claiming to be the owner of the property filed petition under Section 10 (2) (i) (iii), (v) and 10 (2) (vi) of the Act, against the petitioner and respondent No.2 herein for eviction from the eastern portion of the house No.9-2-289 & 290, Francis Street, Regimental Bazar, Secunderabad and for delivery of vacant possession of the premises, which is more fully described in the schedule annexed to the petition before Rent Controller, (for convenience sake, hereinafter referred to as schedule property).

It is the contention of the respondent No.1 herein that the petitioner and the respondent No.2 are tenants of the petition schedule property. Originally father of the petitioner

and respondent No.2 herein has obtained the petition schedule property in the year 1981 on monthly rent of Rs.80/- from the parents of the respondent No.1. After the death of father of the petitioner and respondent No.2, being legal heirs, continuing as tenants of the petition schedule property. Originally, mother of the respondent No.1 was the owner of the schedule property, who purchased the same in the year 1963 and died intestate on 06.02.1985, whereas, father of the respondent No.1 predeceased to the mother of the respondent No.1. After the death of parents of respondent No.1; the respondent No.1 and his brother succeeded the property and became owners of the schedule property. A suit O.S.No.

473 of 2002 was filed for partition of property and at the stage of appeal, the matter was settled and partitioned the property under a partition deed dated 24.04.2010, in that partition, the northern portion of the house No.9-2-289 & 290 consisting of four rooms fell to the share of the respondent and thus, he became the owner of the schedule property. It is also contended that in O.S.No.473 of 2002, a Receiver was appointed, who used to manage the affairs of the property and also used to collect rent from the tenants of the schedule property. The Receiver had collected rent from the petitioner and respondent No.2 till June 2010 and after withdrawal of the suit, the Receiver was discharged. It is also contended that the petitioner and respondent No.

wilful default in payment of rent for the months of July and August, 2010, by the date of petition which is deliberate and wilful. Therefore, the petitioner and respondent No.2 are liable to be evicted from the schedule property on the ground of wilful default. It is also contended that the respondent No.1 along with his family residing in a house at Balaramnagar colony, Safilguda, Secunderabad and two rooms allotted to his share in the partition are vacant and two rooms are in occupation of the petitioner and respondent No.2. The daughters of the respondent No.1 are studying in Osmania University at Tarnaka, son of the respondent No.1 is working as Driver in HMDA and his office is also situated at Tarnaka. As the two rooms in occupation of the respondent No.1 is not sufficient, the respondent No.1 required the two rooms in occupation of the petitioner and respondent No.2 and his requirement is bonafide.

It is also contended that the petitioner and respondent No.2 secured alternative accommodation at house No.10-3339 at Tukaramgate, Secunderabad having purchased the same for their occupation as residence, as such the petitioner and respondent No.2 are liable to be evicted from the schedule property. Respondent No.1 also claimed eviction of the petitioner and respondent No.2 on the ground that they denied his title with a malafide intention. Thus, the respondent No.1 sought eviction of the petitioner and

respondent No.2 on various grounds referred to in the earlier paragraphs.

Respondent No.2 herein remained exparte, throughout the proceedings.

Petitioner herein, who is the respondent No.2 in R.C.No.122 of 2010, filed counter interalia contending that there was no subsisting jural relationship of landlord and tenant between the parties and denied the allegation that her father was the tenant and after his death, the petitioner and respondent No.2 continuing in occupation of the schedule property as tenants in occupation of the schedule property. The petitioner also denied the ownership of the respondent No.1 and contended that they are not the parties to the suit O.S.No.473 of 2002 and pleaded ignorance about the appointment of Receiver in O.S.No.473 of 2002 while denying collection of rent by the Receiver at any time.

It is specifically contended that the petitioner did commit no default, much less wilful default in payment of rent for the months of July and August 2010 and that there was no subsisting jural relationship of landlord and tenant between the parties to the eviction petition. Petitioner also pleaded ignorance about the prosecution of studies by daughters of the respondent No.1 at Osmania University and working of son in HMDA as driver and his office is also situated at Tarnaka. Petitioner contended that the requirement of the respondent No.1 is not bonafide and that the petitioner and respondent No.

secure any alternative accommodation, thereby they are not liable to be evicted from the schedule premises as there was no subsisting jural relationship of landlord and tenant between the parties.

Petitioner mainly contended that the schedule property was originally public property belonging to the Government and it was occupied by the father of the petitioner long ago and constructed a house therein, thereby continued in possession and enjoyment of the property in his own right during his life time and after his death, the petitioner and respondent No.2 succeeded the property from their father. It is also contended that their father is in continuous possession and enjoyment of the property setting up independent claim over the property for more than 12 years, thereby perfected her title to the property by adverse possession. Consequently, the respondent No.1 herein is disentitled to evict the petitioner from the schedule property on any of the grounds since the denial of title by the petitioner herein is bonafide.

After amendment of the petition, the petitioner filed additional counter denying the jural relationship of landlord and tenant and denial of title of respondent No.1 is bonafide and prayed for dismissal of the petition.

Based on the above pleadings, the trial court framed the following five points for enquiry:

(1) Whether there is any jural relationship of landlord and tenant in between the petitioner and the respondent?

(2) Whether the respondent has committed any wilful default in payment of rent in respect of the schedule property?

(3) Whether the petitioner is entitled to seek eviction of the respondents on the ground of bonafide requirement?

(4) Whether the respondents denied the title of the petitioner if so whether such denial is bonafide or not?

(5) To what relief?

During enquiry, on behalf of the respondent No.1 herein P.Ws.1 and 2 were examined and marked Exs.P.1 to P.66. On behalf of the petitioner herein, R.Ws.1 and 2 were examined and no documents were marked.

Upon hearing arguments of both the counsel, considering oral and documentary evidence, trial Court dismissed the petition without costs.

Aggrieved by the dismissal of R.C.No.122 of 2010 by order dated 19.08.2013, respondent No.1 herein preferred an appeal R.A.No.205 of 2013 before the Additional Chief Judge, City Small Causes Court, Hyderabad.

During pendency of the appeal, P.Ws.1 and 2 were recalled and adduced additional evidence and marked Exs.P.67 to P.71 and Exs.C.1 to C.4.

R.A.No.205 of 2013 preferred by the respondent No.1 herein was allowed holding that the petitioner and respondent

No.2 herein committed wilful default in payment of rent and denied the title of the respondent No.1 with malafide intention. The appellate Court further held that the requirement of the premises by the respondent No.1 is bonafide and genuine, allowed the appeal and directed the petitioner and respondent No.2 to vacate and handover the vacant possession of the petition schedule property to the respondent No.1 within two months from the date of order. Aggrieved by the order of eviction dated 26.10.2015 passed by the Additional Chief Judge, City Small Causes Court, Hyderabad in R.A.No.205 of 2013 the present revision under Section 22 of the Act is filed raising following few contentions.

a) The finding of the appellate Court that the petitioner and respondent No.2 committed wilful default in payment of rent is not based on any material on record and in the absence of any proof of subsisting jural relationship between the parties to the eviction petition, the finding of the appellate Court is an apparent error.

b) Ordering eviction of the petitioner and respondent No.2 from the premises on the ground of bonafide requirement is also an apparent error as there was no subsisting jural relationship of landlord and tenant between the parties.

c) The appellate Court failed to take into consideration Ex.P.10 certified copy of the affidavit filed by the father of the petitioner in O.S.No.710 of 1988 to the effect that he is tenant of the respondent No.1 in respect of one room and the appellate Court failed to consider the material in proper perspective more particularly Exs.C.1 to C.4 and Exs.P.67 to P.71 and committed grave error in accepting the contention of the respondent No.1 herein.

d) The appellate Court has erred in taking into consideration the aspect that in Ex.P.3 sale deed father of the petitioner is one of the attestors, but without appreciating the evidence on proper perspective committed error in ordering eviction of the petitioner and respondent No.2 from the schedule premises and prayed to set aside the eviction order passed by the appellate Court.

Sri Prabhakar Peri, learned counsel for the revision petitioner, would contend that in the absence of any material to establish jural relationship of landlord and tenant between the parties to the eviction petition, ordering eviction of the petitioner from the schedule property is an apparent error and the findings of the appellate Court are perverse since those findings are not based on any material. He further contended that when the denial of title of the respondent No.1

by the petitioner herein is bonafide, the petitioner is not liable to be evicted from the schedule property and placed reliance on "M/s.Boorugu Mahadev and Sons v. Sirigiri Narasing Rao1" "Tmt.Kasthuri Radhakrishan v. M.Chinniyan2" and "S.P.Chengalvaraya Naidu v. Jagannath3"

Relying on the principles laid down in the above decisions learned counsel for the petitioner contended that the order of eviction passed by the appellate Court is contrary to law and therefore, the respondent No.1 is not entitled to claim eviction of the petitioner and respondent No.2 herein on any of the grounds urged in the eviction petition and at best the course open to the respondent No.1 herein is to approach the Civil Court. Therefore, the order of the appellate Court in R.A.No.205 of 2013 is liable to be set aside and prayed to allow the revision setting aside the order passed by the Additional Chief Judge, City Small Causes Court, Hyderabad in R.A.No.205 of 2013 and restore the order passed in R.C.No.122 of 2010 by the Principal Rent Controller, Secunderabad.

Per contra, Sri Gavini Srinivasa Rao, learned counsel for the respondent No.1 supported the order of eviction passed by the appellate Court in all respects while placing reliance on various documents more particularly evidence of P.W.2 and documents evidencing collection of rent by the receiver viz., 1 AIR 2016 SC 433 2 AIR 2016 SC 609 3 AIR 1994 SC 853

Ex.P.5 - certified copy of order of appointment of receiver and Ex.P.6 - certified copy of warrant of receiver and Exs.P.34 to P.66 receipts issued by the receiver in favour of petitioner - Smt.Jessa. On the strength of these documents, he contended that denial of title of the respondent No.1 by the petitioner and respondent No.2 is malafide. Even otherwise, original of Ex.P.10 is third party (by name Xavier) affidavit in O.S.No.710 of 1988 is of little assistance to the petitioner, but basing on Ex.P.10 the Court cannot come to the conclusion that there was no subsisting jural relationship of landlord and tenant between the parties. Even the petitioner and respondent No.2 did not produce any iota of evidence to show that they became owners of the schedule property and in the absence of any independent right over the schedule property, they are not entitled to deny the title of the respondent No.1 and prayed to dismiss the revision and confirm the order passed in R.A.No.205 of 2013 by the Additional Chief Judge, City Small Causes Court, Hyderabad.

Considering rival contentions and perusing the material available on record, the points that arise for consideration are as follows:

(1) Whether the finding of the appellate Court that denial of title of the respondent No.1 by the petitioner is not bonafide and not based on any evidence, is erroneous, if so, the same is liable to be set aside?

(2) Whether the findings recorded by the trial Court are manifestly perverse or apparently erroneous and if so, liable to be set aside by exercising the power under Section 22 of the Act?

Before deciding the points formulated by this Court, it is appropriate to advert to the powers of this Court under Section 22 of the Act.

The scope of jurisdiction under Section 22 of the Rent Control Act is limited and this Court normally would not disturb the concurrent fact findings, except when this Court finds that the findings recorded by the Court below are manifestly perverse or apparently erroneous or without any evidence. The scope of power of Revision under Rent Control Law came up for consideration before the Apex Court in "Hindustan Petroleum Corporation Limited v. Dilbahar Singh4", wherein, the Apex Court, after considering the Rent law of Kerala and Tamil Nadu which is in pari materia with A.P. Rent Control Act, held that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on re-appreciation of the evidence, its view is different from the Court/authority below. The consideration or examination of the evidence by the High Court in Revisional jurisdiction under these Acts is confined 4 (2014) 9 SCC 78

to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court, in exercise of its Revisional jurisdiction under the above Rent Control Acts, shall be entitled to set aside the impugned order as being not legal or proper.

The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it, as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.

This legal preposition is reiterated in the later judgment of the Apex Court in "M/s. Boorugu Mahadev and Sons v. Sirigiri Narasing Rao"(referred supra) and "Tmt.Kasthuri Radhakrishan v. M.Chinniyan"(referred supra). In view of the law declared by the Apex Court in all the three judgments including the judgment of larger bench, the jurisdiction of this Court under Section 22 of the Act is limited and the Court can interfere only when the findings of the appellate Court are perverse, apparently erroneous and recorded such findings without considering the material on record. Keeping in mind, the scope of revision I would like to decide the points formulated by this Court referred supra. P O I N T Nos.1 and 2:

Since, both the points are interconnected, I find it expedient to decide both the points by common discussion. The main contention of the petitioner before the trial Court and the appellate Court is that the respondent No.1 is not the owner of the schedule property and there was no subsisting jural relationship of landlord and tenant between the respondent No.1 and the petitioner or between the parents of respondent No.1 and the parents of the petitioner, thereby the respondent No.1 is disentitled to evict the petitioner under the provisions of the Act. The Rent Controller based on evidence disbelieved the contention of the respondent No.1 while upholding the contention of the petitioner dismissed the R.C.No.122 of 2010, whereas the

appeal filed by the respondent No.1 before the Additional Chief Judge, City Small Causes Court, Hyderabad, was allowed specifically recording reasons holding that the denial of title of the respondent No.1 by the petitioner is not bonafide and also recorded finding about the bonafide requirement of respondent and wilful default committed by the petitioner and ordered eviction of the petitioner from the schedule premises, whereas respondent No.2, who is staying away to the State remained exparte.

The appellate Court observed that when the petitioner is claiming ownership through her father on the ground that the schedule property was occupied by her father and raised constructions, she ought not to have raised a plea that she perfected title by adverse possession, which is inconsistent with one another. Apart from that there is voluminous evidence on record to show that the petitioner was paying rent to the respondent No.1 and also to the Receiver appointed by the Court, based on such oral and documentary evidence, the appellate Court concluded that there was subsisting jural relationship of landlord and tenant between the respondent No.1 and the petitioner, thereby denial of title of the respondent No.1 by the petitioner is not bonafide. According to Section 10 (2) (vi) of the Act when the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bonafide, the Controller shall make an order directing the

tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application.

In "M/s. Boorugu Mahadev and Sons v. Sirigiri Narasing Rao"(referred supra) the Apex Court had an occasion to deal with similar question with regard to denial of title and concluded that concept of ownership in a landlordtenant litigation governed by Rent Control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from, for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit.

The said principle was also reiterated by the Apex Court in "Tmt.Kasthuri Radhakrishan v. M.Chinniyan"(referred supra).

In view of the law declared by the Apex Court in two recent perspective pronouncements, the person who is claiming eviction of the tenant need not prove title as in title suit. Proof of his entitlement to recover rent from tenant is sufficient to order eviction of the tenant from the premises in

occupation. Therefore, respondent No.1 is not required to prove his title to the property beyond reasonable doubt if he is able to prove that he is the landlord within the definition of word 'landlord' under the Act.

The term 'landlord' is defined under Section 2 (vi) of the Act, which is as follows:

"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 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.

The definition of 'landlord' under the Act is very wide and comprehensive. According to the definition, even a person who is entitled to receive rent on his behalf or others or as an agent, trustee, executor administrator, receiver appointed by the Court would also fall within the definition of landlord. Similarly the word "tenant" is defined under clause (ix) of Section 2 of the Act, which means any person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public, market,

cart-stand or slaughter-house or of rents for shops has been framed out or leased by a local authority.

In view of the definition of the word 'landlord' and 'tenant', a person who is entitled to receive the rent for a building whether on his own account or on behalf of himself or on behalf of 3rd party is a 'landlord' and any person by whom or on whose account rent is payable for a building is 'tenant'. Therefore, the Court has to decide whether there is subsisting jural relationship of landlord and tenant between the parties initially.

After arriving at a conclusion regarding subsisting jural relationship of landlord and tenant between the parties, the Court has to record its own finding as to denial of title is bonafide or not to order eviction under Section 10 (2) (vi) of the Act. Therefore, it is necessary to advert to the evidence on record including pleadings to find out whether there was any subsisting relationship of landlord and tenant between the parties.

Turning to the pleadings on record, the respondent No.1 mainly contended that the property was purchased by his mother under a registered sale deed from the sons of Narsimloo and the same is marked as Ex.P.3 dated 30.09.1963, father of petitioner and second respondent was also one of the attestor of document, thereafter the property was partitioned during pendency of the appeal filed against the judgment in O.S.No.473 of 2002, marked as Ex.P.1 dated

24.04.2010. Ex.P.4 is the release deed. Based on these three documents, the appellate Court concluded that mother of the respondent No.1 purchased the property, but there is little inconsistency in the boundaries mentioned in the documents. However, this would not come in the way of trial Court or the appellate Court to disbelieve the relationship of landlord and tenant in view of Ex.P.10, affidavit filed by father of the petitioner by name Xavier in O.S.No.710 of 1988. In the said affidavit, father of the petitioner clearly asserted that he is continuing as tenant in one room of the schedule premises. If really he was the owner of the premises, he ought not to have filed an affidavit before the Court admitting the jural relationship of landlord and tenant between the parties in O.S.No.710 of 1988.

Before the trial Court and the appellate Court, it was contended by the petitioner that the affidavit filed in the Court by 3rd party is not binding on her (alleged tenant) and if Ex.P.10 is ignored, there is absolutely no evidence to conclude that there was subsisting jural relationship between the landlord and tenant between the father of the petitioner and respondent No.1. No doubt, the affidavit filed by 3rd party in a different suit may not bind the petitioner herein if she is not claiming right through her father. But here she is claiming right in the property only through her father, who allegedly occupied the land belonging to the Government and allegedly raised construction therein.

father of the petitioner has direct bearing on the issue to establish the jural relationship of landlord and tenant between the respondent No.1 and petitioner. As such the contention of the petitioner that the affidavit filed before the Court in another suit, marked as Ex.P.10 is not binding on the petitioner is without any merit. The appellate Court rightly rejected this contention and the same cannot be interfered with by this Court.

Respondent No.1 herein from the beginning contended that there was dispute with regard to partition of the property among the legal heirs of purchaser under Ex.P.3 and filed O.S.No.473 of 2002 for partition. During pendency of the suit, at the instance of brother of the respondent No.1, advocatereceiver was appointed to manage the property including collection of rent vide orders in I.A.No.573 of 2004 in O.S.No.473 of 2002, who was examined as P.W.2 - Manu. Ex.P.6 is the certified copy of warrant of receiver, Exs.P.7 and P.8 are the statement of accounts filed into Court by the Receiver. Those statements would disclose that the petitioner paid rent to receive for the schedule premises. Exs.P.34 to P.66 are the receipts issued in favour of Ms.Jessa, the petitioner herein acknowledging receipt of rent from her for the schedule property in occupation, which is subject matter of O.S.No.473 of 2002. Though the petitioner denied her signature on Exs.P.34 to P.66, the vakalat filed by her in the

proceedings before the Rent Controller and the appellate Court she was signing as "Anthammal X.Jassa". Vakalat filed by her in R.C.No.122 of 2010 is marked as Ex.P.68. It is evident from Ex.P.68 that the petitioner was signing as "Anthammal X.Jassa". The rent receipts marked as Exs.P.34 to P.66 bears signature as "X.Jassa". Apart from that before discharging the receiver, P.W.2 from management of the property, the 2nd respondent submitted a letter to the receiver, P.W.2 seeking permission to construct a toilet marked as Ex.C.2 dated 31.05.2006. Exs.C.1 to C.4 marked through the receiver. Ex.C.2 and C.4 were addressed by the respondent No.2, who remained exparte. Therefore, Exs.C.2 and C.4 allegedly addressed by respondent No.2 will have no direct bearing on the issue to prove the signatures on Exs. P34 to P-67. Ex.C.3 would show that permission was issued to respondent No.2 as prayed for.

In any view of the matter, documentary evidence would show that the petitioner - Ms.Jessa paid rent to the receiver vide Exs.P.34 to P.66.

The petitioner though signed as "Anthammal X.Jassa" on the vakalat, Ex.P.68, she was arrayed as "Ms.Jessa @ Jasantha, D/o late D.Xavier" in the eviction petition and also in the appeal. Petitioner did not raise any specific plea denying her particular as first respondent before both Courts she received notices from the trial Court and in the appeal in the name of "Ms.Jessa @ Jasantha". Even after receiving

notice, petitioner did not raise any plea that her name was wrongly mentioned as "Ms.Jessa - respondent No.2 in R.C.No.122 of 2010 and R.A.No.205 of 2013, but she filed her counter before the trial Court and prosecuted proceedings in the name of "Ms.Jessa @ Jasantha". It appears that conveniently petitioner filed vakalat as "Anthammal X.Jassa" to raise ground that Exs.P.34 to 66 did not bear her signature, but failed in her attempt to substantiate her claim as she herself filed Civil Revision Petition before this Court as "Ms.Jessa @ Jasantha". Therefore, the cumulative effect of filing revision as "Ms.Jessa @ Jasantha" and singing on Exs.P.34 to 66 as "Ms.Jessa" is suffice to conclude that she was known as "Ms.Jessa" and also signing as "Anthammal X.Jassa". Therefore, based on Exs.P.34 to P.

66, the appellate Court rightly concluded that the petitioner paid rent to P.W.2 - Receiver appointed by the Court in O.S.No.473 of 2002, but conveniently she denied her signatures and set up a plea that there was no subsisting jural relationship of landlord and tenant between respondent No.1 and the petitioner and set up independent title through her father, who filed an affidavit in O.S.No.710 of 1988, marked as Ex.P.10, admitting jural relationship of landlord and tenant between the father of the petitioner and the respondent No.1. All these documents are suffice to conclude that there was subsisting jural relationship of landlord and tenant between the respondent No.

defined under clause (ix) of Section 2 of the Act. Therefore, the contention of the petitioner that there was no subsisting jural relationship of landlord and tenant between the respondent No.1 and herself is without any merit and the same is rejected by the appellate Court. Hence, this finding cannot be interfered with by this Court while exercising limited jurisdiction under Section 22 of the Act in view of the law declared by the Apex Court referred supra. Though the petitioner denied the title of the respondent No.1 to the property, there is clinching evidence on record to establish that the mother of the respondent No.1 acquired the property under Ex.P.3 sale deed dated 30.09.1963 having purchased the same from the sons of Narsimloo. Ex.P.1 is the certified copy of the partition deed subsequent to purchase of property under Ex.P.

3 and the father of the respondent No.1 predeceased to his mother, therefore, in view of Exs.P.1 and P.2, respondent No.1 became prima-facie owner of the schedule property though there is discrepancy with regard to identity of the property with reference to boundaries. According to Order VII Rule 3 of C.P.C. pleadings shall contain details of the property such as Door Number etc. In the present case, Door No.9-2-289 and 290, Francis Street, Regimental Bazar, Secunderabad is not in dispute as it is and the property can be identified with reference to door number, despite of furnishing details of property, the petitioner in the Court did not dispute the identity of property.

view of strict adherence to Order VII Rule 3 of C.P.C. the petitioner herein cannot deny the title of the respondent No.1 based on the minor discrepancies with regard to the boundaries mentioned in various documents.

Though the petitioner contended that her father occupied government property and constructed a house therein long ago, during his life time, but she did not produce even a piece of paper to establish that her father occupied Government property and raised construction therein, if really father of the petitioner raised construction in the schedule property and after his death, the petitioner or any of his legal heirs would have paid property tax to the Municipality or Electricity consumption charges and water charges to the concerned department. But no piece of evidence is brought on record to substantiate the contention of the petitioner that her father raised a construction and continued in possession in his individual right. Therefore, in the absence of any material, it is difficult to uphold the contention of the petitioner that her father occupied vacant land and raised construction therein and continued in possession of the property in his own right.

Yet, the strange plea raised by the petitioner is that she perfected her title by adverse possession to the property. When the petitioner is claiming title to the property through her father and continuing in possession of the property on her own right, she cannot claim perfection of her title to the

property by adverse possession. If the petitioner admits that the respondent No.1 is the owner of the property, then she is entitled to raise such plea of adverse possession. Therefore, these two pleas are inconsistent to one another and she did not raise the plea of adverse possession as an alternative plea, but the plea is independent. If the plea of adverse possession is alternative, then the petitioner is entitled to raise such plea, but she cannot claim both title to the property through her father and perfection of title by adverse possession while admitting her possession in the property. To claim adverse possession, the petitioner is required to prove the following ingredients as laid down in "Mandal Revenue Officer v. Goundal Venkaiah and another5" and "Anakili v. A.

Vedanayagam6", the Apex Court reiterated the requirements to constitute an adverse possession and according to it, claim by adverse possession has two elements; (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain possession for a period of 12 years thereafter. Animus Possidendi as is well known is a requisite ingredient of adverse possession and it is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose.

the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.

Similar view was expressed in "P.T. Munichikkana Reddy v. Revamma7" and "T. Anjappa and others v. Somalingappa and another8", and "L.N.Aswathamma and another v. P. Rakash9", by the Apex Court reiterating the requirements for establishing the adverse possession or prescription of title by adverse possession and burden of proof and in all the judgments, the Apex Court highlighted intention of the possessor i.e., animus possessindi and continued in possession of the property more than 12 years prescribed by Limitation Act from the date of setting up of hostile title and mere continuation in possession would not constitute adverse possession. Therefore, it is the duty of the tenant to plead and prove the requirements to constitute adverse possession by adducing cogent and satisfactory evidence.

In view of the law declared by the Apex Court, the petitioner has to prove that she is in continuous possession 7 2007(6) SCC 59 8 2006 (7) SCC 570 9 2009 (13) SCC 229

and enjoyment of the property setting up adverse title to the knowledge of respondent No.1 and continued thereafter for a period of 12 years to disable the respondent No.1 to recover possession of the property in view of Section 27 and Article 65 of Limitation Act. But here, to satisfy the requirements to claim adverse possession, no evidence was adduced by the petitioner in support of such plea to establish that she perfected her title to the property. Petitioner failed to establish either of the pleas raised though inconsistent to one another, but not alternative relief. When the petitioner claimed adverse possession over the property, she must admit the title of the respondent No.1 and claiming such adverse possession directly amounts to admission of title of respondent No.1.

Therefore, in view of the law declared by the Apex Court in "M/s. Boorugu Mahadev and Sons v. Sirigiri Narasing Rao"(referred supra) and "Tmt.Kasthuri Radhakrishan v. M.Chinniyan"(referred supra) the respondent No.1 prima facie proved his title to the property and established the subsisting jural relationship of landlord and tenant. When the petitioner paid rent under Exs.P.34 to P.66 to the receiver and singed on receipts, cannot deny the title of the respondent No.1 and denial of title of the respondent No.1 by the petitioner is not bonafide, the meaning of the word 'bonafide' is explained in "Shiv Sarup Gupta v. Dr.

discussed as to what amounts to bona fide requirement and held that Chambers 20th Century Dictionary defines bona fide to mean 'in good faith : genuine'. The word 'genuine' means 'natural; not spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith, without fraud or deceit'. Thus the term bona fide or genuine refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide ' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. The Apex Court further held that the bona fide requirement must be an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant, on the part of the landlady claiming to occupy the premises for herself or for any member of the family would entitle her to seek ejectment of the tenant.

Thus, from the meaning of word "bonafide" it must be genuine and honest.

Here, denial of title is not bonafide and it is totally malafide for the simple reason that the petitioner paid rent to the Receiver vide Exs.P.34 to 66, hence denial of title in the eviction petition is totally with dishonest intention and not genuine. Therefore, the petitioner is liable to be evicted from the schedule premises.

In "Tmt.Kasthuri Radhakrishan v. M.Chinniyan" (referred supra) the Apex Court discussed about the nature of enquiry as to title under the Act and held as follows: "Similarly, so far as the scope and nature of inquiry, which is required to be undertaken to examine the title of the landlord in eviction matter is concerned, it also remains no more res integra and stands settled in the case of Sheela and Ors. v. Firm Prahlad Rai Prem Prakash (2002) 3 SCC 375: (AIR 2002 SC 1264). Justice R.C. Lahoti (as His Lordship then was) speaking for the Bench held that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used.

In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit."

Similar view was expressed in "M/s. Boorugu Mahadev and Sons v. Sirigiri Narasing Rao"(referred supra) that Rent Controller is not required to enquire into the title like in a Civil Suit and recording finding that the landlord proved his title prima facie to the premises in dispute is sufficient. The Apex Court in "Majati Subbarao v. P.V.K.Krishna Rao (deceased) by Lrs.11" had an occasion to deal with similar question with reference to Transfer of Property Act and Evidence Act and held that denial of title in the course of eviction of petition constitutes a ground for eviction provided the denial is not bona fide and it is not necessary that in order to constitute a ground for eviction the denial of title 11 AIR 1989 SC 2187

must be anterior to the filing of the eviction petition. To insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entitled by the tenant's denial of his character as a tenant in the written statement. Even according to this principle, the landlord need not file subsequent suit based on denial of title in the written statement and such denial can be decided in the same proceedings.

The Apex Court is also of the view that failure to amend the plaint for including disclaimer as a ground for eviction, is not a ground when both parties proceeded on that basis with full knowledge and the objection raised by the tenant with regard to title cannot be entertained. But here the respondent No.1 suitably amended the eviction petition and contended that the denial of title is malafide. In "Vashu Deo v.

landlord of such tenant had at the beginning of the tenancy, a title to such immovable property.

Similar view was expressed by this Court in "Ratanlal Soni v. Nityanand Sanghi (died per LRs) and others13" In "Mohd.Khasim (dead) by L.Rs. and others v. G.Meera Bai14" while deciding a revision under Section 22 of the Act, this Court had an occasion to deal with an identical issue and held that when the property fell to the share of landlord long ago and thereafter tenant paid rent to any member of the family or an authorized representative or an agent on behalf of landlord, the tenant is not entitled to deny the relationship of landlord and tenant.

Thus, in view of the law declared by the Apex Court and this Court when the denial of title is malafide, it is a ground to order eviction of the tenant. Thus, the appellate Court after elaborate consideration of entire evidence available on record held that denial of title of the respondent No.1 by the petitioner, who is a tenant in occupation of the premises and paid rent under Exs.P.34 to P.66 is established and it is suffice to order eviction of the tenant from the premises. It is the case of the respondent No.1 that two rooms are lying vacant, whereas the petitioner occupied two other rooms. If really, the schedule premises was constructed by the father of the petitioner, the question of occupying two 13 2006 (3) ALD 342 14 2007 (1) ALD 784

rooms by the respondent No.1 and continuing in possession after evicting the tenant, R.W.2 does not arise. This is also another strong ground to conclude that the respondent No.1 is owner of the schedule property prima facie. Therefore, the finding of the appellate Court in this regard is not perverse and the same is based on substantial material on record. Accordingly, the finding of the appellate Court is confirmed holding the same in favour of the respondent No.1 and against the petitioner.

Respondent No.1 claimed eviction of the tenant on the ground of wilful default and bonafide requirement since the petitioner failed to pay rent for the months of July and August 2010 after discharge of the Receiver as on the date of filing of the petition. Petitioner never claimed that she paid rent to the respondent No.1 for the months of July and August 2010 by the date of filing of petition. On the other hand, the petitioner claimed ownership over the property through her father. Therefore, no further evidence is required to establish that the petitioner committed wilful default in payment of rent for the months of July and August 2010 and such default is deliberate since the petitioner paid rent for the premises to P.W.2, Receiver under Exs.P.34 to P.66 and failed to pay the rent for the same premises subsequent to discharge of the Receiver. Therefore, ordering eviction of the tenant on the ground of wilful default is free from any illegality or irregularity warranting interference of this Court.

The other ground raised before this Court is that the respondent No.1 required the schedule premises for his personal occupation. The evidence on record established that the respondent No.1 is residing at Balaramnagar colony, Safilguda, Secunderabad, but his son is working as driver in HMDA and his office is situated near Tarnaka and the daughters of the respondent No.1 are studying at Osmania University at Tarnaka and required the premises for his bonafide occupation. According to the respondent No.1, his children prosecuting studies by the date of filing of the petition, but now the bonafide requirement of the respondent No.1 ceased to exist as they would have completed their education in Osmania University as on today. Similarly, son of the respondent No.1 is a major, who is residing with the respondent No.

1 by the date of filing of the petition, but it is not known whether he is married or not and continuously residing with the respondent No.1 or not. Merely because his office is situated near to the schedule premises, it is difficult to hold that the requirement of the respondent No.1 is genuine and honest to claim eviction of the petitioner on the ground of bonafide requirement. Therefore, I am unable to accept the finding recorded by the appellate Court regarding eviction of the tenant on the ground of banafide requirement. Hence, I find that the finding of the appellate Court on this aspect is not correct while upholding eviction of the tenant on two grounds i.e.

months of July and August 2010 and also on the ground of malafide denial of title of the respondent No.1 by the petitioner.

In view of my foregoing discussion, I find no merits in this revision and the same is liable to be dismissed. In the result, the civil revision petition is dismissed. However, it is left open to the petitioner to establish her independent title through her father or by adverse possession as claimed in the counter filed in R.C.No.122 of 2010 by independent proceedings in appropriate Court and the findings recorded hereinabove are limited for deciding the present proceedings (rent control case), which are summary in nature. No costs.

The miscellaneous petitions pending, if any, shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY .10.2017 Ksp