ORDER
C.Y. Somayajulu, J.
1. Since these two CRPs are inter-connected, they are being disposed of by a common order.
2. CRP No. 3562 of 2002 arises out of the order dated 19-4-2002 allowing EA No. 241 of 2002 in EP No. 76 of 2002 in OS No. 282 of 1990 on the file of the Court of Additional Senior Civil Judge, Rajahmundry, filed under Sections 47 and 151 of CPC and CRP No. 3189 of 2002 arises out of the order of dismissal of EP No. 76 of 2002 in pursuance of the order in EA No. 241 of 2002.3. The facts, which are not in dispute, are, Jala Rama Murthy-brother of the revision petitioner, purchased the E.P. schedule property under a registered sale deed dated 11-9-1978 from Venkatapathi Rao and others. At the time of the said purchase, respondent was in occupation of the E.P. schedule property as tenant on a monthly rent of Rs. 280/-. Subsequent to his purchasing the E.P. schedule property Jala Rama Murthy filed RCC No. 3 of 1979 seeking eviction of the respondent from the E.P. schedule property. Respondent filed a counter contending that the purchase of the E.P. schedule property by Jala Rama Murthy was a benami purchase for his benefit, and hence the proceedings for the eviction are not maintainable. Pending those RCC proceedings Jala Rama Murthy died on 5-2-1980. Alleging that she is the legate of the E.P. schedule property under the will dated 27-7-1978 executed by Jala Rama Murthy in a sound disposing state of mind, revision petitioner, came on record in the RCC as his legal representative and subsequently, filed OS No. 282 of 1990 on the file of the Court of Additional Subordinate Judge, Rajahmundry for declaration of her title to and recovery of the E.P. schedule property from the respondent. She also filed OS No. 166 of 1988 and OS No. 26 of 1994 for recovery of arrears of rent from the respondent. The Trial Court dismissed all the three suits. AS No. 157 of 1996 against the decree and judgment in OS No. 282 of 1990, AS No. 155 of 1996 against the decree and judgment in OS No. 26 of 1984 and AS No. 156 of 1996 against the decree and judgment in OS No. 166 of 1998 filed by the revision petitioner before the II Additional District Judge, East Godavari at Rajahmundry were allowed and all the three suits were decreed in favour of the revision petitioner. In the meanwhile, RCC No. 3 of 1979 was dismissed on 27-11-1996 by the Rent Controller. Appeal preferred by the Revision Petitioner against the said order of dismissal to the Appellate Authority was also dismissed.
4. The contention of the learned Counsel for the revision petitioner is that the dismissal of RCC and the appeal against its dismissal was on the ground that there is a bona fide dispute regarding title to the E.P. schedule property. That fact is disputed by the learned Counsel for the respondent. Since copy of the order in the RCC and the appeal against that order passed by the Appellate Authority are not available on record, the reasons for dismissal of those proceedings is not known.
5. Be that as it may, second appeals preferred by the respondent against the decrees in AS Nos. 157, 155 and 156 of 1996 aforesaid were dismissed at the stage of admission by a learned Single Judge of this Court. It is stated that the SCLPs preferred by the respondent against the order of dismissal of second appeals were dismissed by the Supreme Court. Thereafter Revision Petitioners filed EP No. 76 of 2002 for recovery of possession of the E.P. schedule property from the respondent in terms of the decree obtained by her in OS No. 282 of 1990.
6. Contending that inasmuch as the E.P. schedule property is governed by the provisions of A.P. Buildings (Rent, Lease and Eviction) Control Act, 1960 (the 'Act'), E.P. for recovery of possession, in pursuance of a decree passed by the Civil Court is not maintainable, respondent filed EA.No.241 of 2002 for dismissal of the E.P. Accepting the contention of the respondent the Court below allowed EA No. 241 of 2002 and dismissed E.P. Hence these revisions.
7. The contention of the learned Counsel for the revision petitioners is that since the question relating to the applicability of the provisions of the Act was already raised by the respondents before the learned Single Judge at the time of admission of the second appeals preferred by him, and since the learned Judge held that the respondent cannot be permitted to raise that plea, which was not raised in the pleadings or in the grounds of first appeal or during the course of hearing of the first appeal or in the grounds of second appeals, and obviously taking into consideration the proviso to Section 10(1) of the Act which enables a Civil Court passing a decree of eviction, when there is dispute relating to title had dismissed the second appeal, the executing Court was in error in permitting the respondent to raise the same plea in execution proceedings. He relied on Srinivasa Rajakamal (died) by LRs v. Neelamsetti Kataji Rao and Ors., : 2002(5)ALD740 , where it is held that Civil Court does have jurisdiction to pass a decree for eviction even in respect of the buildings governed by the Act, if the tenant disputes the title of the landlord, depending upon the facts and circumstances of the case and contended that since the respondent took a plea in RCC No. 3 of 1979 filed by Jala Rama Murthy, the predecessor in title of the revision petitioner, that he but not Jala Rama Murthy is the owner of the E.P. schedule property, the decree passed by the Civil Court in the suit for declaration of title and eviction against the respondent can be executed by the Civil Court, because it is not a case of inherent lack of jurisdiction of the Civil Court. The contention of the learned counsel for the respondent is, since the E.P. schedule property admittedly is governed by the provisions of the Act; it is the Rent Controller, but not a civil Court that can evict the respondent who is the tenant in respect of the E.P. schedule property. He placed strong reliance on R. Babu (died) per Legal heirs v. NKN Ayyangar, : 1999(4)ALD450 , Urban Improvement Trust, Jodhapur v. Gokul Narain and Anr., : AIR1996SC1819 , East India Corporation Limited v. Shree Meenakshi Mills Limited, : [1991]2SCR310 , Marwadi Punami Motiji v. Mohamad Siddique Musabhai Shaikh and Ors., : AIR1993Guj168 , Sarwan Kumar and Anr. v. Madan Lal Aggarwal, 2003 SAR (Civil) 226.
8. R. Babu (died) per Legal heirs v. N.K.N. Ayyangar case (supra), relied on by the learned Counsel for the respondent, has no application to the facts of this case because in that case the landlord of a building, which is governed by the provisions of the Act, filed a suit for recovery of rent and eviction of his tenant in a Civil Court. It was held that the Civil Court can pass decree for arrears of rent but has no jurisdiction to order eviction of the tenant. In that decision whether the decree passed by a Civil Court for eviction of the tenant, after he (the tenant) set up a title in himself in the petition for his eviction filed by the landlord against him, can be executed by the Civil Court or not was not considered. Therefore the said decision is of no help to decide these proceedings.
9. The ratio in the other decisions relied on by the learned Counsel for the respondent is that a decree passed by a Court lacking jurisdiction to pass such decree is a nullity, and so the question of the validity of such a decree can be raised even at the time of execution proceedings. In my considered opinion those decions have no application to the facts of this case. It should be noted that the Act does not completely oust the jurisdiction of a Civil Court to order eviction of a tenant in respect of the buildings governed by the provisions of the Act. In East India Corporation Limited v. Shree Meenakshi Mills Limited case (supra) the Supreme Court held that the condition precedent for the Civil Court exercising jurisdiction to order eviction of a tenant is the Rent Controller recording a finding that the denial of the title of the landlord by the tenant to the demised premises or his setting up a permanent tenancy, is bonafide, in view of the second proviso to Section 10 of T.N. Buildings (Lease and Rent Control) Act, which is in pari materia with the proviso to Section 10 of the Act. In this case when Jala Rama Murthy, the predecessor in title of the revision petitioner, filed RCC. No. 3 of 1979 respondent took a plea that he, but not Jala Rama Murthy is the owner of the E.P. schedule property, which means that it is the specific case of the respondent that he is not a tenant but is the owner of the E.P. schedule property. In view of the plea taken by the respondent in the RCC, revision petitioner is obliged to file a suit for declaration of title and the consequential relief of eviction of the respondent from the E.P. schedule property.
10. Tenancy and ownership do not go together, When the tenant claims himself to be the owner of the demised premises, it means that he is disputing the status of his being the tenant of the demised premises. Provisions of the Act can be invoked for eviction of Tenants only, but not the persons who claim themselves to be the owners of the demised property. So if a tenant, in a petition for eviction filed by the landlord under the Act, sets up a title in himself, the landlord can file a suit for declaration of his title, because the Rent Controller cannot decide the question of title. In the suit filed by the landlord for declaration of his title and consequential relief of possession, the tenant who set a title in himself in the RCC cannot turn around and contend that he is a tenant of the suit property and so it is the Rent Controller, but not the Civil Court that has jurisdiction to order his eviction. He is estopped from doing so. Moreover a person cannot blow hot and cold at the same time and take contradictory pleas to suit his convenience. Here I feel it relevant to extract a portion of the judgment of the learned Judge, who heard the second appeal, on the submission made by the learned Senior Counsel for the respondent in the appeal. It reads:
'Sri M.K.S. Sastry, learned Senior Counsel appealing on behalf of the appellant, however, would contend that the civil Court has no jurisdiction to try the suit even on the admitted facts stated in the plaint. The learned Senior Counsel would rely upon the averments made in the plaint that the appellant herein was tenant in the suit schedule property on payment of specified amount of Rs. 280/- per month towards rent. The respondent-plaintiff if at all could have initiated the eviction proceedings only before the Rent Controller is the submission.
It is required to notice that late Jala Rama Murthy filed a Rent Control case before the Rent Controller seeking eviction of the appellant herein on the ground of willful default and other grounds. The appellant herein raised a serious dispute about the title of the said Jala Rama Murthy with regard to the schedule property. The learned Rent Controller having regard to the nature of the controversy and dispute raised by the appellant herein disposed of the Rent Control Case without ordering the eviction of the appellant herein and direction the respondent-plaintiff to approach the competent Court of civil jurisdiction to get the title established. The learned Rent Controller, obviously, relied upon the proviso to Section 10(1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, which provides that where the tenant, denied the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bonafide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. It is under those circumstances, the respondent-plaintiff invoked the jurisdiction of the Civil Court and accordingly prayed for declaration of title and eviction of the appellant herein from the suit schedule property.'
11. It is thus clear from the above judgment, that the Rent Controller directed the revision petitioner to approach the Civil Court to get her title established and seek eviction of the respondent. In the circumstances it is easy to see that the respondent, only with a view to continue in the E.P. schedule property for as long as possible, is trying to drive the revision petitioner from pillar to post, by trying to wriggle out of the jurisdiction of the Courts whenever proceedings for his eviction are instituted.
12. In view of the above, the finding of the Court below that the decree obtained by the revision petitioner is in executable, and it is the Rent Controller only that has jurisdiction to order eviction of the respondent is unsustainable, and is in fact against the spirit of the judgment in the second appeals filed by the respondent.
13. For the above reasons, both the revision petitions are allowed and consequently E.A. No. 241 of 2002 in E.P. No. 76 of 2002 is dismissed with costs and E.P. is restored to file. The executing Court is directed to order further steps in the E.P. revision petitioner is entitled to costs in both the Revisions.