Padmakar Joshi v. Ambica Bai

respondent. Respondent is the G.P.A. holder of Sri Ashok, who made an agreement of sale with the petitioner for the suit property for the sale consideration of Rs.70,000/- on 05-12-1987 in view of her legal necessity and for performing the marriage of her young daughter approached the respondent, who was already in possession of the petition-schedule premises and petitioner agreed to sell the said property to Ashok. He paid Rs.30,000/- to the petitioner on 05-12-1987 and an agreement of sale was executed by petitioner in favour of Sri Ashok and the balance amount of Rs.40,000/- was agreed to be paid at the time of registration of the sale deed. But due to family disputes of HUF property, which the petitioner could not settle, she asked the Ashok and his GPA holder and to send Rs.300/- to her address at Humanabad stating that she will adjust the same towards balance consideration amount. It is averred that the amount of Rs.300/- per month is being sent by the respondent to the petitioner as GPA holder of Sri Ashok by way of breakaway adjustment. It is also averred that for all these years petitioner had addressed trust over the respondent. But in view of her inability to get clear title or in view of escalation of price she developed a second thought and instead of completion of registration, she filed this case with false averments stating that respondent is her tenant. After the death of late Nagesh Ganesh Diwan there are number of rival claimants making claim over suit property like Sri Uday diwan and his sister, Smt.Aruna, who are children of late Nagesh Ganesh Diwan born though legally wedded wife, late Geetabai. It is averred that the present eviction petition is barred under section 9 of CPC for want of jurisdiction, as there is no jural relationship of landlord and tenant between the petitioner and respondent. It is further averred that the suit premises cannot be called as a premises as W.C. and bathroom are in possession of co-owners. It is averred that the respondent being GPA holder of Ashok is paying water, electricity and MCH property-tax and that the petitioner played fraud and failed to implead other co-owners of the property and also Ashok who is brother-in-law of the respondent. She ailed to produce any document to prove her title over the property and also to prove the existence of jural relationship of landlord and tenant between her and respondent. Only to avoid execution of sale deed and to extract more money, she filed this case with false and frivolous averments. The contention of the petitioner that she used stay in one room for two or three days whenever she visits Hyderabad and later on at the request of the respondent she let-out the said room to the respondent in addition to the existing portion are all false. It is further averred that the respondent was tenant of late Nagesh Ganesh Diwan, after his death, a family dispute started between two wives and their children and in the meanwhile, petitioner approached the respondent and desired to sell portion of her house and requested the respondent to arrange money to perform the marriage of her daughter. It is also averred that on humanitarian grounds, as the petitioner is his distant relative, obliged her requesting his brother-in-law Ashok to purchase the property. As she is a widow to help her, he rendered the said service. In spite of executing agreement of sale collecting huge amount and deliver vacant possession of the property, she is not completing the sale transaction and she could not settle the dispute with he co-owners. Ashok is ready and willing to complete sale registration. It is averred that the petitioner is avoiding the said transaction, her treating the monthly payment of Rs.300/- as rent is not correct. The same was paid towards payment of balance sale consideration by Ashok. The petition schedule property is not centrally located but it is a sub- road. There is no independent bathroom and W.C. to it and the respondent is using bathroom and W.C. of one Uday Diwan. The premises is located and used for residential purpose. There are other co-owners for the property and to dupe and cheat Ashok, this petition is filed. Her contention that she require the premises for occupation of her family including her son, who is an un- employee and who is intending to sell the news papers, weekly magazines etc., are all false. It is averred that respondent is causing damage to the suit property and is a careless to the looking after it are all false. It is further averred that after taking possession of the property under an agreement of sale, respondent and Ashok are effecting the repairs to the said building and that the petitioner has not approached the court with clean hands. Thus, the petition is bad for non-joinder of necessary and interested parties. Further Uday Diwan sent a legal notice through his counsel dated 21-1-2003 claiming rights over the suit property. He and his sister, Aruna and Sri Ashok are necessary parties to this proceeding. Their presence will help to effectively and completely settle the matter in controversy. Nagesh Ganesh Diwan’s on also got issued a public notice in Hindi Milap Daily dated 19-1-2003 with heading General Public Notice, Buyer’s Beware. Hence, the petitioner is not entitled for the relief sought for and petition is liable to be dismissed.

5. On the basis of above rival contentions, the III- Additional Rent Controller, Hyderabad, framed the following points for consideration: (i) Whether there is any jural relationship of landlady the petitioner and tenant between respondent ? (ii) Whether the denial of title of the petitioner by the respondent is bonafide or not ? (iii) Whether the petitioner requires the petition schedule premises for her bonafide personal occupation and for her son ? (iv) To what relief ?

6. To substantiate her case, the petitioner-respondent herself was examined as PW.1 and her son was examined as PW.2 and got marked Exs.P1 to P11 on her behalf. On behalf of respondent, RW.1 was examined and marked Exs.R1 to 17. That apart, RWs.2 to 4 examined on behalf of the respondent.

7. On appreciation of oral and documentary evidence placed on record, III-Additional Rent Controller after elaborately discussing the above points, answered in favour of the petitioner and allowed her petition filed under section 10 (3) (i) (a) of the AP Buildings (Lease, Rent & Eviction) Control Act, 1960 holding that the denial of title of the petitioner by the respondent is malafide and the requirement of the petition schedule property is bonafide and therefore directed respondent to vacate and handover possession of the petition schedule premises to the petitioner within a period of three months, failing which the petitioner is entitled to take recourse to law for obtaining possession of the petition schedule premises.

8. Aggrieved thereby, the respondent filed R.A.No. 108 of 2007 on the file of the Court of Chief Judge, City Small Causes Court, Hyderabad, contending that the petition is bad for non- joinder of necessary parties and that the petitioner and her son and daughter executed an agreement dated 05-12-1987 in favour of Ashok. He was inducted into the petition schedule premises by Nagesh Ganesh Diwan, who is no other than the husband of the petitioner. Substantial amount has been paid by Ashok under the given agreement of sale and balance amount to be paid at the time of registration within three years. Under the said agreement, possession was delivered to Ashok. It is his contention that the amount being paid @ R.300/- per month is towards balance sale consideration by the GPA holder but not towards rent. Further there is no jural relationship of landlady and tenant between the petitioner and respondent in view of agreement of such sale. Moreover, RWs.1 to 4 have spoken of this fact in one voice and the trial court has not given any finding and did not tried to compare the signatures available on Ex.R15, which resulted into giving erroneous finding. Though, this aspect is a precondition for giving finding on other issues. However, he never withhold the amount and he has been discharging his obligation. But the petitioner did not claim that any amount is due from him. The trial court has given much importance to Ex.P2 and wrong conclusion has been drawn regarding jural relationship of landlady and tenant. It is also contended that there is no pleading in the eviction petition regarding denial of title and in Ex.P3 also there is nothing about denial of title but issue No.2 has wrongly framed by the trial court. Further the respondent had not set up a title with any third person. It is also contended that under the bonafide belief and in view of the recital in Ex.R.15 agreement of sale, he stated that the petitioner is not the owner. Hence, the denial is malafide. It is also contended that the trial court ought to have rejected the ground of personal requirement, as there is no application seeking for requirement for residence. For such purpose, building must be composite one i.e., residence plus commercial. But the trial court misconstrued the provisions and has given finding in favour of the petitioner. In view of the above contentions, the impugned order is liable to be set aside.

9. Before the appellate court, both parties have filed a joint memo dated 30-6-2009 informing the court that two documents are marked as Ex.R-17 by the trial court and that the said discrepancy is to be rectified. Both parties proposed that the receipt dated 05-12-1987, which is marked as Ex.R-17 is to be marked as Ex.R-17 (a) to clear off this discrepancy, leaving the photograph together with corresponding negative, which was marked as Ex.R-17, as Ex.R-17, the said request has been applied with. The receipt dated 05-12-1987 was marked as Ex.R- 17 (a). It is noticed by the appellate court that the said document has not been mentioned in the appendix of judgment and the trial court has been directed to rectify the said defect.

10. On hearing both the parties, the appellate court framed the following points for determination: i) Whether there is jural relationship of landlady and tenant between the petitioner and the respondent ? ii) Whether the denial of title made by the respondent is bonafide ? iii) Whether the petition is bad for non-joinder of necessary parties ? iv) Whether the personal requirement pleaded by the petitioner is bonafide ? v) Whether the impugned order is liable to be set aside, if so on what grounds ?

11. On re-appreciation of both oral and documents and also after hearing the contentions of both the parties, the appellate court having elaborately dealt all the issues in extenso and dismissed R.A.No.108 of 2007 by judgment dated 31-8-2009 negativing all the points against the appellant-tenant (respondent) observing landlady requires the petition-schedule property for her personal occupation and also emphasized the established principle of law that a landlord/landlady can seek for eviction of the tenant when the household premises is required for the purpose of bonafide personal occupation of any one of the members of his/her family, as well and directed the appellant- tenant (respondent) to vacate the petition schedule premises and handed over vacant possession of the same to the respondent- petitioner within two months from the date of judgment.

12. Aggrieved thereby, the present Civil Revision Petition has been filed by the tenant.

13. Though at the hearing the learned counsel for the Revision Petitioner-tenant has raised several contentions but this court suggested the learned counsel for the revision petitioner that sufficient time will be granted to the revision petitioner-tenant to vacate the petition schedule premises. The learned counsel for the revision petitioner-tenant also fairly concedes and sought reasonable time to vacate the petition schedule premises.

14. Considering the submissions made by the learned counsel for the revision petitioner-tenant, on perusing the oral and documentary evidence placed on record, concurrent judgment of both the courts below and the undertaking furnished by the revision petitioner praying this court to grant one year time to vacate the petition schedule premises, this court is of the opinion to direct the revision petitioner to vacate the petition schedule premises on or before 30-06-2010 and he shall hand over the petition schedule premises to the respondent-landlady, failing which the respondent-landlady is at liberty to get vacate the revision petitioner-tenant from the petition schedule premises by due process of law and if necessary seek police aid. However, the revision petitioner is further directed that he shall not renew his request hereafter seeking further extension of time to vacate the petition schedule premises.

15. As a sequel to the dismissal of the main Civil Revision Petition, CRPMP.No. 6860 of 2009 which has been filed seeking to stay all further proceedings pursuant to the judgment dated 31- 8-2009 passed in RA.No. 108 of 2007 by the learned Chief Judge, City Small Causes Court, Hyderabad, confirming the order dated 20-3-2007 passed in RC.No. 492 of 2002 by the III-Additional Rent Controller, Hyderabad, is hereby dismissed as infructuous.

16. With the above direction, the Civil Revision Petition is dismissed at the stage of admission. No costs. ______________________ JUSTICE T. MEENA KUMARI 04-12-2009. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 5 0 0 0 OF 2009 Circulation Entry No. 8 5 Date: 04-12-2009 Computer No. 43 Court Master : I s L