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HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
CRP No.285 OF 2021
O R D E R:
1. This Revision is preferred under Section 22 of the Telangana State Buildings (Lease, Rent and Eviction) Control Act, 1960 challenging the order dt.03.12.2020 in RCA.No.108 of 2017 of the Additional Chief Judge, City Small Causes Court, Hyderabad ( for short 'the appellate Authority') , reversing the order dt.13.04.2017 in RC.No.292 of 2002 of the III Additional Rent Controller, City Small Causes Court, Hyderabad ( for short 'the Rent Controller').
Case of the respondents 1 to 4/landlords in the Court below :
2. Respondents 1 to 4 in this Revision filed the said RC No.292 of 2002 for the eviction of the petitioners and 5th respondent alleging that 1st petitioner, who was a tenant of the subject non-residential premises under a rental agreement dt.01.08.1987 on a monthly rent of Rs.260/- per month, had committed willful default in payment of rents from January, 1990 to July 2002.
3. Respondents 1 to 4 alleged that the 1st respondent had issued a legal notice Ex.P2 dt.08.06.1999 to the 1st 2 petitioner and that he gave a reply Ex.P6 dt.17.06.1999 denying their title. Therefore on this ground also eviction was sought.
Case of the petitioners/tenants in the Court below:
4. The 1st petitioner then filed a counter contending that RC schedule property is a wakf property and is registered in the Book of Wakf; that father of the 1st respondent was the Mutawalli and managing the properties as he was appointed by the A.P. Wakf Board; that after the death of 1st respondent's father, the 1st respondent was receiving the rents claiming himself as Mutawalli; that the 1st petitioner was paying monthly rent to the 1st respondent on his assurance that he would deposit the rent in A.P. Wakf Board and the monthly rent was Rs.260/-.
5. He alleged that in 1992, 1st petitioner came to know that the 1st respondent was neither a Mutawalli nor the manager of the A.P. Wakf Board, that the 1st respondent filed OS.No.1458 of 1992 before the VIII Assistant Judge, City Civil Court, Hyderabad against A.P. Wakf Board which was dismissed on 28.02.1985 holding that the 1st respondent was neither a Mutawalli of the Dargah Hazarath Dhammal Shah Shaib nor its properties. 3
6. It is further contended that the 1st petitioner filed OS.No.954 of 1999 before the IV Junior Civil Judge, City Civil Court, Hyderabad to declare him as the tenant of the A.P. Wakf Board, which was decreed on 02.03.2000 and the 1st petitioner was depositing monthly rent in the A.P. Wakf Board after said decree. He also contended that A.P. Wakf Board filed OS.No.40 of 2001 before the A.P. Wakf Tribunal impleading both the 1st petitioner and 1st respondent as parties therein.
Events during the pendency of the RC
7. Pending the RC, the 1st respondent died and respondents 2 to 4 are brought on record as his legal representatives. Likewise, 1st petitioner also died pending the RC and his legal representatives were brought on record as petitioners 2 and 3.
Additional counter filed in the RC by legal heirs of 1st petitioner
8. The legal representatives of the 1st petitioner i.e., petitioners 2 and 3 also filed an additional counter disputing the ownership of the respondents 2 to 4 and contended that the respondents 2 to 4 could not establish the title over the RC schedule property.
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9. They denied that they were willful defaulters from January, 1999 till July 2002. They contended that the Rent Controller has no jurisdiction to try the RC because the property is a wakf property.
10. They also contended that the 1st respondent had alienated the RC schedule property in favour of 5th respondent under a registered sale deed for a valuable consideration and so the eviction case had become infructuous.
Other events
11. Before the Rent Controller, respondents 1 to 4 examined PWs 1 to 4 and marked Exs.P1 to P18. The 3rd petitioner, who was legal representative of the 1st petitioner, examined himself as RW1 and marked Exs.R1 to R10. One Ahmed Basha, Auditor of A.P. Wakf Board was examined as CW1 and exhibits C1 to C3 were marked. The issues framed in the RC
12. The III Additional Rent Controller, City Small Causes Court, Hyderabad framed following issues:
"1. Whether this Tribunal has inherent jurisdiction?
2. Whether this eviction petition becomes infructuous?
3. Whether the respondents are liable for eviction? 5
4. To what relief?
The order dt.13.4.2017 of the Rent Controller :
13. The Rent Controller dismissed the RC by order dt.13.04.2017 agreeing with the contention of the petitioners that the RC schedule property was owned by the AP Wakf Board and that the said Wakf Board is the landlord.
14. He observed that Ex.P1 rental agreement is doubtful because while describing the 1st respondent, the place meant for mentioning occupation of the 1st respondent was left blank and after the blank, Dargah Dhammal Shah Saheb was written. It observed that the relationship, which the 1st respondent had with the said Dargah, had been wiped out and for that reason only the gap appeared and so it is not safe to rely on Ex.P1.
15. He then held that Ex.P10 certified copy of the Gazette Notification did not give any right to the respondents 1 to 4 over the RC schedule property and the decree dt.08.09.1997 in OS.No.1859 of 1992 of the IX Assistant Judge, City Civil Court, Hyderabad, marked as Ex.P12 establishes that the petitioners are only tenants. 6
16. He also placed reliance on Ex.R10 certified copy of the judgment dt.08.08.2011 in RA.No.314 of 2003 of the Chief Judge, City Small Causes Court, Hyderabad, in relation to a third party wherein a finding was recorded that the 1st respondent had entered into rental agreement as Mutawalli of the Dargah only with the said third party.
17. He therefore concluded that even Ex.P1 rental agreement was entered into by the 1st respondent with the 1st petitioner, in his capacity as Mutawalli.
18. Challenging the same, respondents 2 to 4 filed RCA.No.108 of 2017 before the Additional Chief Judge, City Small Causes Court, Hyderabad.
The order dt.3.12.2020 of the Appellate Authority in RCA :
19. The said appeal was allowed on 03.12.2020 by the Appellate Authority and the order dt.13.04.2017 passed by the Rent Controller in RC.No.292 of 2002 was set aside and the said RC was allowed. Time of two months was granted to the petitioners to vacate the RC schedule property.
20. In RCA, Exs.P19 to P21 were marked on behalf of respondents 2 to 4 and Exs.R11 to R13 were marked on behalf of the petitioners.
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21. The Appellate Authority held that the 1st petitioner in his counter, having alleged that Ex.P1 was a forged document, stated in his written statement that he obtained possession of the RC schedule property from the father of the deceased-1st respondent by name Hazi Mohammed Hussain as Mutawalli of the Durgah Dhamal Shah and that after his death, the 1st respondent represented himself as Mutawalli stating that after the death of his father he became the Mutawali of the Dargah and obtained signature on basis of Ex.P1 lease deed.
22. It therefore held that the petitioners had admitted Ex.P1 rental deed and that as per the said admission, the 1st petitioner was inducted into possession of the property through Ex.P1 as tenant.
23. It also held that Ex.R6 judgment in OS.No.1458 of 1992 filed by the deceased-1st respondent against Wakf Board for perpetual injunction to restrain the Wakf Board from interfering and collecting rents from the tenants, had been dismissed, but no finding was given therein that the Wakf Board was the owner of the RC schedule property.
24. It held that the relationship of the landlord and tenant had been admitted by the 1st petitioner and even in Ex.P9, judgment in OS.No.81 of 1999, and also in Ex.P13, 8 the judgment in OS.No.1859 of 1992, the 1st petitioner admitted that he obtained the suit schedule property from the 1st respondent on lease and he also paid Rs.25,000/- to his landlord as an advance.
25. It held that since the 1st petitioner admitted in the previous litigation that he is tenant of the 1st respondent, and was inducted into possession by the 1st respondent, and he paid rents to the 1st respondent till 1999, and there was no reference to the Wakf Board when the rental deed was made, there is subsisting relationship of landlord and tenant between the 1st respondent and 1st petitioner as per Ex.P1.
26. It then referred to the finding in the suit OS.No.1458 of 1992 by the 1st petitioner before the Wakf Tribunal to declare him as a tenant of the Wakf Tribunal and the said suit being dismissed and held that the 1st petitioner had not been declared as a tenant of the Wakf Board and so he cannot deny the title of the 1st respondent. It also observed that the Gazette Notification dt.09.05.1985 (Ex.P10) did not disclose that the suit mulgi belongs to the AP Wakf Board because the number of the RC schedule property was not even mentioned therein. 9
27. It also noted that in OS.No.1859 of 1992 filed by the 1st petitioner, he stated that the Wakf Board, without any rights, gave a notice to him which proves that he admitted the ownership of the 1st respondent.
28. It therefore concluded that there is evidence to show jural relationship between the parties in previous proceedings, and that a suit for declaration of title is pending before the Wakf Tribunal, that the 1st petitioner cannot deny the title of the 1st respondent and till the disposal of the said suit, he cannot say that the 1st respondent has misrepresented as owner of the RC schedule property.
29. It also considered the evidence of CW1, the official of the A.P. State Wakf Board, and held that not only does the A.P. State Wakf Board not show that the RC schedule property is wakf property, even the certified copy of the Survey Commissioner Report shows Mulgi No.15-8-17/3, which is not the RC schedule property, and the evidence of CW1 does not prove that RC schedule property belongs to Wakf Board.
30. It observed that long after the tenancy commenced, the 1st respondent received the notice from the Wakf Board regarding payment of rents.
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31. It held that a tenant cannot deny the landlord's title and even if the title of the landlord is defective, still the tenant cannot deny the title of the landlord and so the denial of the title of the 1st respondent was not bonafide.
32. It also rejected the plea of the petitioners that forums under the Act have no inherent jurisdiction to entertain the eviction petition.
33. It then referred to the admission of the 1st petitioner that he did not pay rent to the 1st respondent from January, 1999 to July, 2002, that he was paying rents to the Wakf Board since it had issued notice for payment of rents, and held that even though the 1st petitioner filed OS.No.81 of 1999 to declare the Wakf Board as his landlord, the said suit was dismissed and thereafter the 1st petitioner not paid the rents to the 1st respondent.
34. It also noted that it was open to the 1st petitioner to file an application under Section 9(1) of the Act for depositing rents, if there was a dispute as regards the ownership of the property, but no such petition was filed by the 1st petitioner and therefore he has to be held to have committed willful default in payment of rents from January, 1999 till July, 2002.
11The present Revision
35. Challenging the same this Revision is filed.
36. Counsel for the petitioner contended that the Appellate Authority under the Act erred in directing eviction of the petitioners from the RC schedule property by giving a finding that the denial of title by the petitioner of the 1st respondent is not bonafide and that the petitioners had committed willful default in payment of rents and so the judgment of the appellate authority should be set aside. Consideration by this Court:
37. From the facts narrated above, it is clear that the 1st respondent claimed to be the landlord of the 1st petitioner and had alleged that 1st petitioner had committed willful default in payment of the rents from January, 1999 to July, 2002 @ Rs.260/- per month. He had issued a notice under Ex.P6 dt.08.06.1999 and the 1st petitioner then denied his title, and so, both on the grounds of willful default and malafide denial of title, the 1st petitioner should be evicted from the RC schedule premises.
38. The defence of the petitioners is that RC schedule property is wakf property, that the lease was entered into by the 1st petitioner with the father of the 1st respondent in 12 his capacity as Mutawalli of Dargah Hazarath Dhammal Shah Shaib and not in his individual capacity.
39. The appellate authority had considered the Gazette Notification Ex.P1 dt.09.05.1985 and it held that the said notification does not mention the RC schedule property, that the certified copy of the Survey Commissioner Report also does not mention the RC schedule property and the evidence of CW1 did not prove that the property belongs to the Wakf Board. Nothing is produced before me to disagree with the said finding.
40. The 1st petitioner admitted filing of OS.No.1859 of 1992 before the IX Assistant Judge, City Civil Court, Hyderabad against the 1st respondent and the AP State Wakf Board for a perpetual injunction restraining them from interfering with his possession and enjoyment over the suit schedule property. In that suit a finding was given that a comprehensive suit OS.No.42 of 1996 is pending before the III Additional Chief Judge, City Civil Court, Hyderabad for declaration of title and that ownership cannot be decided in the suit OS.No.1859 of 1992. However, a finding was recorded in OS.No.1859 of 1992 by the Civil Court that the 1st petitioner was a tenant and he was paying rents to the 1st respondent. In the plaint filed 13 in OS.No.1859 of 1992, the 1st petitioner specifically contended that the he obtained the suit schedule property from the 1st respondent on lease and had paid Rs.25,000/- as pagdi. Ex.P13 is the certified copy of the judgment in OS.No.1859 of 1992.
41. The 1st petitioner had also filed OS.No.81 of 1999 before the A.P. Wakf Tribunal, Hyderabad to declare him as tenant of the A.P. State Wakf Board and that he was in lawful possession of the suit schedule property, but the said OS.No.81 of 1999 was dismissed on 29.01.2003 (Ex.P9 is the judgment in OS.No.81 of 1999).
Even in that suit, there is a finding recorded that the 1st petitioner took the RC schedule property on lease from the 1st respondent; and it was noted that the AP Wakf Board itself has filed OS.No.40 of 2001 before the Wakf Tribunal for declaration of its right over the RC schedule property and other Mulgies and for a perpetual injunction apart from eviction of the tenants and for mesne profits and since these questions would be gone into in the OS.No.40 of 2001, it is not permissible to make an observation in that regard.
42. Thus, even in this suit, the 1st petitioner had admitted that he had taken the RC schedule premises on lease from 14 the 1st respondent and the prayer sought by him that he is a tenant of the AP Wakf Board had not been granted.
43. Though OS.No.1458 of 1992 filed by the 1st respondent against the AP State Wakf Board had been dismissed on 20.12.1995, the relief sought in the said suit was for a perpetual injunction to restrain the said Wakf Board from interfering with the alleged peaceful possession and enjoyment of the RC schedule property or demanding and collecting rents from the tenant.
In that suit, it was held that the 1st respondent was not the Mutawalli of Dargah Hazarath Dhammal Shah Shaib, that the filing of the said suit is not barred under Section 11 of CPC since OS.No.1107 of 1971 had been dismissed for default and the AP State Wakf Board was not shown to have taken over the affairs of the Dargah completely. Ex.R6 is the copy of the judgment therein.
44. The reason for the dismissal of the said suit appears to be that the 1st respondent should have sought for relief of declaration and not only a perpetual injunction.
45. Therefore, the decision rendered in Ex.R6 does not in any way help the petitioners as rightly held by the Court below in view of the admissions made by the 1st petitioner 15 in the plaint in OS.No.1859 of 1992 about the obtaining of the RC schedule property of lease from the 1st respondent, the finding in the said suit in that regard, apart from finding in OS.No.81 of 1999 that the 1st petitioner admitted that he took the RC schedule property on lease from the 1st respondent. So it cannot be said that the denial of the title of the 1st respondent by the 1st petitioner is bonafide.
46. Ex.P1 lease deed also states that the property was leased to the 1st petitioner by the 1st respondent's father.
47. Though counsel for the petitioners sought to contend that a portion of Ex.P1 was blanked out by the 1st respondent, the contents therein are corroborated by the very pleading of the 1st petitioner in OS.No.1859 of 1992, and in OS.No.81 of 1999 and admittedly a comprehensive suit filed by the AP.Wakf Board in OS.No.40 of 2001 has not yet been disposed of, and in that suit it had sought relief of declaration of its right over the RC schedule property. Till that case is decided, it cannot be said that the 1st petitioner can deny the title of the 1st respondent.
48. Thus the jural relationship between the parties has been established.
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49. Therefore, the Appellate Authority, in my opinion, rightly held that 1st petitioner's denial of title is not bonafide.
50. Once this is so, default in payment of rents by the 1st petitioner from January, 1999 to July, 2002 being admitted, it has to be held to be willful default warranting eviction of the 1st petitioner/legal representatives- petitioners 2 and 3 from the RC schedule property.
51. Accordingly, this Civil Revision Petition is dismissed; the order and decree dt.03.12.2020 in RCA.No.108 of 2017 of the Chief Judge, City Small Causes Court, Hyderabad, reversing the order and decree dt.13.04.2017 in RC.No.292 of 2002 of the III Additional Rent Controller, City Small Causes Court, Hyderabad, is confirmed and the RC.No.292 of 2002 is allowed.
52. Petitioners are however granted time up to 31.07.2021 to vacate the RC schedule premises and deliver possession of the same to respondents 2 to 4 subject to the petitioners 2 and 3 paying all the arrears of rent to respondents 2 to 4 commencing from January, 1999 till 31.03.2021 @ Rs.260/- per month, within a period of four (04) weeks from the date of receipt of a copy of this order. They shall continue to pay the rents thereafter for the 17 month of April, 2021 by 30.04.2021, and for the month of May, June and July, 2021 on or before 10th of each of said month; and they shall also file an undertaking within two (02) weeks from the date of receipt of a copy of this order that they will vacate the RC schedule premises by 31.07.2021 and pay arrears of rent and future rents as mentioned above.
53. If the petitioners commit default in complying with any of these conditions they shall be liable to evicted from the RC schedule property forthwith. No order as to costs.
54. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
______________________________ M.S.RAMACHANDRA RAO, J Date: 23-04-2021 gra