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Saturday, February 13, 2016

Learned counsel for the respondents lastly argued that there was an encroachment made by the appellants on the suit premises and document (Ex-P- 6) was inadmissible in evidence, hence the eviction petition was liable to be dismissed on these two grounds also. These submissions, in our considered view, deserve to be rejected at their threshold because the same were not raised in the written statement filed by the respondents before the Rent Controller and nor were urged at any stage of the proceedings. We cannot, therefore, allow such factual submissions to be raised for the first time in this appeal.- It is also now a settled principle of law 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.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL No.167 OF 2007

M/s Boorugu Mahadev & Sons & Anr. ……Appellant(s)


                             VERSUS


Sirigiri Narasing Rao & Ors.      ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    This appeal is filed  against  the  final  judgment  and  order  dated
06.09.2005 of the High Court of Judicature, Andhra Pradesh at  Hyderabad  in
Civil Revision Petition No. 5228 of 2002 whereby the High Court allowed  the
revision petition  filed  by  the  respondents  herein  and  set  aside  the
judgment dated 17.09.2002 passed by the Additional Chief Judge,  City  Small
Causes Court, Hyderabad in R.A. No. 93 of 1998  and  restored  the  judgment
dated 31.12.1997 passed by the Principal  Rent  Controller  Secunderabad  in
R.C. No. 165 of 1993.
2)    In order to appreciate the issue involved in this appeal,  which  lies
in a narrow compass, it is necessary to set out the relevant facts in  brief
infra.
3)     The  premises  bearing  No.  9-3-692  to   694,   Regimental   Bazar,
Secunderabad (hereinafter referred  to  as  “suit  premises”  was  purchased
jointly by the predecessors of the  appellants  herein  under  a  registered
sale deed dated 28.07.1904 from Sirigiri Yellaiah, and  others,  which  they
sold in discharge of pre-existing mortgage debt to  avoid  court  attachment
in O.S. No. 178 of 1900 on the file of the District Court.  Since  the  date
of  sale,  the  respondents’  predecessors  continued  to  occupy  the  suit
premises and thus became the tenants  of  the  appellants’  predecessors-in-
title on a monthly rent of  Rs.10/-  in  addition  to  payment  of  property
taxes, conservancy and electricity charges etc.  under  an  agreement  dated
01.08.1904.  The said agreement was incorporated in  a  book  maintained  by
the appellants’ predecessors in the regular course of business and was  duly
signed by  the respondents’ predecessors by way of rent every month.   After
the death of Sirigiri  Vishwanadham,  i.e.,  respondents’  predecessor,  his
four sons became the tenants and continued to pay monthly rent at  the  rate
of Rs.75/- besides other charges.  The respondents are  the  grand  children
of late Sirigiri Vishwanadham, who continued to occupy the suit premises  as
the tenants of the appellants.   However,  the  respondents  stopped  paying
rent w.e.f. 01.06.1987 to the appellants.   Since the  rent  was  not  being
paid in spite of repeated requests and demands, a legal notice was  sent  by
the appellants to the respondents on 22.07.1992, to which interim reply  was
sent  on  03.08.1992  followed  by  a  detailed  reply  on  30.08.1992   and
thereafter  there  were  exchange  of   legal  notices  ensued  between  the
parties.
4)    Since despite service of the legal notice sent by  the  appellants  to
the respondents demanding arrears of rent, the respondents failed to  comply
with the demand, the appellants filed Eviction Petition being R.C.  No.  165
of 1993 before the  Principal  Rent  Controller,  Secunderabad  against  the
respondents under  Section  10  of  the  A.P.  Buildings  (Lease,  Rent  and
Eviction) Control Act, 1960 (hereinafter referred to  as  “the  Act”).   The
eviction was sought essentially  on the grounds, viz.,  default  in  payment
of monthly rent from 01.06.1987 till  the  time  of  eviction  petition  and
secondly denial of the appellants’ title to the suit premises.
5)     Denying  the  allegations  made  in  the   eviction   petition,   the
respondents stated that the sale  deed  dated  20.07.1904  under  which  the
ancestors of the appellants had purchased the suit premises was  a  mortgage
with  a  right  of  re-conveyance  whereas  the  respondents’   predecessors
continued to be the owners of the suit premises.   According  to  them,  the
suit premises was offered  only  as  a  security  for  borrowed  amount  and
subsequently their forefathers discharged the liability of borrowed  amount.
 However, due to  some  reasons,  the  respondents’  forefathers  could  not
obtain the  re-conveyance  of  the  suit  premises  in  their  name,  though
ownership of suit premises remained with the respondents’  forefathers.   It
was also averred that for the last fifty years,  there  was  no  payment  of
rent either by them or their forefathers in respect  of  the  suit  premises
whereas their forefathers paid the property tax etc. as the owners.  It  was
also averred that the appellants fabricated the records to file an  eviction
petition against the respondents.
6)    Vide  order  dated  31.12.1997,  the  Rent  Controller  dismissed  the
petition filed by the appellants.
7)    Challenging the said order, the appellants filed  first  appeal  being
R.A. No. 93 of 1998 before the Additional Chief  Judge,  City  Small  Causes
Court at Hyderabad.
8)    By order dated 17.09.2002, the Additional Chief  Judge,  Small  Causes
Court allowed the appeal and while setting  aside  the  order  of  the  Rent
Controller directed the  respondents  to  vacate  and  handover  the  vacant
possession of the suit premises to the appellants  within  two  months  from
the date of the judgment. It was  held  by  the  appellate  Court  that  the
appellants’ predecessors were  the  owners  of  the  suit  premises  on  the
strength of sale deed-Ex.P.7.  It was also held that the  sale  in  question
in relation to the suit premises between the parties was not  a  transaction
of mortgage as alleged by the respondents but it was  an  outright  sale  in
favour of the appellants’ predecessors-in-title.  It was also held that  the
respondents failed to adduce any evidence to prove that the  transaction  of
sale of suit premises was a mortgage and the  borrowed  amount  having  been
paid, the mortgage was redeemed.  It was also  held  that  the  respondents’
predecessors were, therefore, in possession of the suit premises as  tenants
and later became the appellants’ tenants by operation of law.  It  was  also
held that the respondents failed to pay the arrears of rent from  01.06.1987
and hence they committed  willful  default  in  payment  of  rent  rendering
themselves liable to be evicted from the suit premises under the  provisions
of the Act.
9)    Against the said  judgment,  the  respondents  herein  filed  revision
petition being C.R.P. No. 5228 of 2002 before the High Court.
10)   Learned Single Judge of the High Court,  by  impugned  judgment  dated
06.09.2005, allowed the revision petition filed by  the  respondents  herein
and set aside the judgment of  the  Additional  Chief  Judge,  Small  Causes
Court and restored the order of the Rent Controller.
11)   Aggrieved by the said judgment, the  appellants  have  preferred  this
appeal by way of special leave.
12)     Heard  Mr.  B.  Adinarayan  Rao,  learned  senior  counsel  for  the
appellants and Mr. A.T.M. Ranga Ramanujam, learned senior  counsel  for  the
respondents.
13)   Mr. B. Adinarayana Rao,  learned  senior  counsel  appearing  for  the
appellants, while assailing the legality and  correctness  of  the  impugned
order urged two submissions. In the first place, he submitted that the  High
Court erred in allowing  the  respondents’  revision  petition  and  thereby
erred in interfering in its revisionary jurisdiction  by  upsetting  a  well
reasoned findings of facts recorded by the first appellate Court  in  favour
of the appellants.  He further submitted  that  the  first  appellate  Court
while hearing the appellants’ appeal was within its  jurisdiction  to  probe
into all issues of facts and the evidence and record  its  finding  de  hors
the findings of the Rent  Controller  and  once  any  finding  of  fact  was
recorded by the first appellate Court then such finding is  binding  on  the
High Court while hearing the revision against such  judgment  of  the  first
appellate Court. Learned counsel pointed  out  from  the  impugned  judgment
that the High Court in this case decided the revision like the first  appeal
without keeping in mind the subtle distinction between the  revisionary  and
the first appellate jurisdiction thereby committed  a  jurisdictional  error
in rendering the impugned judgment.
14)   In the second  place,   learned  senior  counsel  for  the  appellants
submitted that even otherwise, there was no justification  on  the  part  of
the High Court on facts to have reversed the well reasoned findings of  fact
recorded by the first appellate Court  because,  according  to  the  learned
counsel, the appellants were able to prove with  adequate  evidence  adduced
by them that firstly,  they  were  the  owners  of  the  suit  premises  and
secondly, there was a  relationship  of  landlord  and  tenant  between  the
predecessor-in-title of the appellants and the respondents’  predecessor-in-
title in relation to the suit premises.  It  was  also  urged  that  in  the
eviction petition filed  before the  Rent  Controller  under  the  Act,  the
issue of title to the suit premises could not be gone into  like  a  regular
title suit yet the appellants  adduced  adequate  evidence  to  prove  their
title over the suit premises and the relationship  of  landlord  and  tenant
between the parties whereas the respondents failed to prove  that  the  sale
of suit premises in favour of the appellants’ predecessors was  not  a  sale
but was a  transaction  of  mortgage  and  that  their  predecessor-in-title
redeemed the alleged mortgage by repaying the debt.
15)   In support  of  his  submissions,  learned  counsel  relied  upon  the
decision of the Constitution Bench of  this  Court  in  Hindustan  Petroleum
Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78.
16)   In contra, Mr. A.T.M. Ranga Ramanujam, learned senior counsel for  the
respondents, supported the impugned judgment and prayed  for  its  upholding
calling no interference therein.
17)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we find force in the submissions of the learned  counsel
for the appellants.
18)   The Constitution Bench of this  Court  settled  the  law  relating  to
exercise of jurisdiction of the High Court while deciding revision  in  rent
matters under the Rent Control  Act  in  the  case  of  Hindustan  Petroleum
Corporation Limited (supra).  Justice R.M. Lodha the learned  Chief  Justice
speaking for the Bench held in para 43 thus:
“43. We hold, as we must, 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 reappreciation  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  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 reappreciate 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.”

19)   It is also now  a  settled  principle  of  law  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.  (vide
Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375).
20)   Coming now to the facts of this case, keeping in  view  the  principle
of law laid down in the aforementioned two  cases  and  on  perusal  of  the
order of the first appellate Court, we find that the first  appellate  Court
properly appreciated the facts and evidence adduced by the  parties  and  on
that basis recorded all necessary findings (detailed  above)  in  favour  of
the appellants.  This the appellate Court could  do  and,  in  our  opinion,
rightly did in the facts of this case.
21)   Likewise, when we peruse the  impugned  order,  we  find,  as  rightly
urged by the learned counsel for the appellants, that  the  High  Court  did
not  keep  in  mind  the  aforesaid  principle  of  law  laid  down  by  the
Constitution Bench in the  case  of  Hindustan  Petroleum  Corporation  Ltd.
(supra) while deciding the revision petition and  proceeded  to  decide  the
revision petition like the first appellate  Court.  The  High  Court  as  is
clear from the judgment probed in all  the  factual  aspects  of  the  case,
undertook the appreciation of whole  evidence  and  then  reversed  all  the
factual findings of the appellate Court and restored the order of  the  Rent
Controller. This, in our view, was a jurisdictional error,  which  the  High
Court committed while deciding the revision petition and hence  it  deserves
to be corrected in this appeal.  In other words, the High Court should  have
confined its inquiry to examine as to whether any jurisdictional  error  was
committed by the first appellate Court while deciding the first appeal.   It
was, however, not done and hence interference in this appeal is called  for.

22)    That apart, we find that the appellants  were  able  to  prove  their
ownership through their predecessor-in-title on the strength  of  sale  deed
(Ex-P.6/7) of the suit premises whereas  the  respondents  failed  to  prove
their defence. Indeed, the burden being on them, it was  necessary  for  the
respondents to prove that the sale in favour of the appellants’ predecessor-
in-title of suit premises was a transaction of mortgage and not an  outright
sale.  Since  the  respondents  did  not  adduce  any  documentary  or  oral
evidence to prove their defence, the first appellate Court was justified  in
allowing the eviction petition.  In our view, the evidence  adduced  by  the
appellants to prove their title over the suit  premises  was  sufficient  to
maintain eviction petition against the respondents and  it  was,  therefore,
rightly accepted by the first appellate Court.
23)    As  observed  supra,  the  first  appellate  Court  having   recorded
categorical findings that the relationship  of  landlord-tenant  was  proved
and secondly, the respondents had committed a willful default in payment  of
monthly rent and its arrears from 01.06.1987, these  findings  were  binding
on the High Court while deciding the revision petition. It was more so  when
these findings did not suffer with  any  jurisdictional  error  which  alone
would have entitled the High Court to interfere.
24)   Learned counsel for the respondents lastly argued that  there  was  an
encroachment made by the appellants on the suit premises and document (Ex-P-
6) was inadmissible in evidence, hence the eviction petition was  liable  to
be  dismissed  on  these  two  grounds  also.  These  submissions,  in   our
considered view, deserve to be rejected at their threshold because the  same
were not raised in the written statement filed  by  the  respondents  before
the Rent Controller and nor were urged at any stage of the  proceedings.  We
cannot, therefore, allow such factual  submissions  to  be  raised  for  the
first time in this appeal.
25)   In the light of foregoing  discussion,  the  appeal  succeeds  and  is
hereby allowed. The impugned judgment is set aside and that of the  judgment
of the first appellate Court dated 17.09.2002 in R.A.  No.  93  of  1998  is
restored. As a consequence thereof,  the  eviction  petition  filed  by  the
appellants against the respondents in  relation  to  the  suit  premises  is
allowed. The respondents are, however, granted three months’ time to  vacate
the suit premises from the date of this order subject to furnishing  of  the
usual undertaking in this Court to vacate the suit premises within 3  months
and further the respondents would deposit all arrears of rent till  date  at
the same rate at which they had been paying monthly rent to  the  appellants
(if there are arrears) and would also deposit three months’ rent in  advance
by way of damages for use and occupation as permitted by  this  Court.   Let
the undertaking, arrears of rent, damages for three months and cost  awarded
by this Court be deposited within 15 days from the date of this order.
26)   The  appeal  is  accordingly  allowed  with  cost  which  quantify  at
Rs.5000/- to be paid by the respondents to the appellants.


.……...................................J.
                                     [J. CHELAMESWAR]


                     ………..................................J.
                                      [ABHAY MANOHAR SAPRE]
      New Delhi,
      January 18, 2016.

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