Smt. Chunnu Bai Vs. K. Ramulu and ors. - Court Judgment

Excerpt:
- - while so, the landlady purchased the petition schedule premises, which is a garage like room, bearing municipal no. in view of the pressing need for additional accommodation of the landlady, she asked the respondent-tenant to vacate the premises but he failed to do so. , garage like room for the purpose of purchase and sale of waste paper and old bottles and also using the same as store room. it is also contended that the demised premises does not form part and parcel of the residential building which is now occupied by the landlady and that the garage cannot be used as residential accommodation by the landlady as it is not having any facilities like electricity, water connection etc. shankar reddy, air1989sc302 .6. it is the contention of the learned counsel for the revision petitioner-landlady that both the courts below have miserably failed to appreciate the evidence on record in a right perspective. , shop room (now called as garage like room) was first sold away to one jayavanthi and later the residential portion to the landlady. the building in gangaram's case (1 supra) was originally constructed into four independent residential portions providing all basic amenities like electricity, water supply, drainage, toilets etc. the said building is like an apartment with number of flats which is a common phenomenon in the metropolitan cities. in support of his contention, he placed strong reliance upon the latest judgment of the supreme court in smt. c, the high court is called upon to see only whether the order under revision suffers from any illegality or irregularity or whether the court below while passing the order has exercised the jurisdiction which is not vested in it or whether it had failed to exercise the jurisdiction which is vested in it.y.v. narayana, j.1. this revision is filed against the order dated 18-2-1994 passed in r.a. no. 233/1989 on the file of the additional chief judge, small causes court, hyderabad.2. landlady is the revision petitioner herein. she filed r.c. no. 731 of 1986 on the file of the iii additional rent controller, hyderabad, seeking eviction of the deceased tenant, who died during the pendency of the proceedings before the court below, under section 10 (3) (c) of the a.p. buildings (lease, rent and eviction) control act, 1960 (for short, 'the act'). the said petition was dismissed holding that the requirement of the petition schedule premises as additional accommodation is not bona fide. aggrieved by the said order, the landlady carried the matter in appeal which was also dismissed confirming the findings of the rent controller. hence, the revision.3. the brief facts of the case are as follows. the landlady is residing in the building bearing municipal no. 3-3-65 and 66 situated at rajmohalla, narayanguda, hyderabad, having purchased the same in the year 1977. the said building consists of one small varandah measuring 5' - 2' x 10' and two rooms measuring 10' - 2' x 2' (sic. l0'-0) and 14' x 10'- 31/2'. the family of the landlady consists of herself, her husband, three daughters and two sons. out of the said rooms, they are using one room as kitchen and store room and the other room as bed room. while so, the landlady purchased the petition schedule premises, which is a garage like room, bearing municipal no. 3-5-67 (old no. 70a), under a registered sale deed dated 22-1-1985 from one smt. jayavanthi. it is averred that the residential house in which the landlady is now living and the petition schedule building is part and parcel of one and the same building and belonged to one and the same owner initially. since the present residential accommodation is very much insufficient for their use as there are grown up school going children in their family, the landlady purchased the petition schedule building with a view to use the same as additional accommodation for her residential purposes. it is submitted that by the date of her purchase of the petition schedule building, the tenant was in occupation of the same by paying monthly rentals to the earlier owner. after the purchase of the demised premises by the landlady, she got issued a notice to the tenant intimating him about the change of ownership and from then the tenant started sending the rents to the landlady. in view of the pressing need for additional accommodation of the landlady, she asked the respondent-tenant to vacate the premises but he failed to do so. hence, she filed the petition for eviction.4. the deceased tenant resisted the petition contending that he is using the demised premises i.e., garage like room for the purpose of purchase and sale of waste paper and old bottles and also using the same as store room. he further contended that the residential house occupied by the landlady is very much sufficient and spacious for use by her family members, and that the demised premises was purchased only in order to extract exhorbitant rents from him. it is also contended that the demised premises does not form part and parcel of the residential building which is now occupied by the landlady and that the garage cannot be used as residential accommodation by the landlady as it is not having any facilities like electricity, water connection etc. it is lastly contended that if he is evicted from the demised premises, he will suffer irreparable loss and hardship and the inconvenience which is going to be caused to him in case of eviction would certainly outweigh the advantage that the landlady may get. it is, therefore, contended that there is no bona fide requirement.5. on the above pleadings, the trial court recorded evidence - both oral and documentary and on a consideration of the evidence and the arguments advanced by both the parties, the trial court, held that the demised premises and the building where the landlady is residing are separate and independent buildings and, therefore, the landlady is not entitled to evict the tenant under section 10(3)(c) of the act. on appeal by landlady, the appellate authority confirmed the decision of the learned rent controller by mainly placing reliance upon a decision of the supreme court reported in gangaram v. n. shankar reddy, : air1989sc302 .6. it is the contention of the learned counsel for the revision petitioner-landlady that both the courts below have miserably failed to appreciate the evidence on record in a right perspective. it is contended that even though there is clear documentary evidence which establishes that the petition schedule building and the residential house of the landlady are part and parcel of one and the same buildings, the findings of the trial court, which were confirmed in appeal, that the buildings are separate and distinct, are erroneous. it is further contended that merely because separate municipal numbers are given to the demised premises and the residential house occupied by landlady, it does not make both the buildings separate. it is submitted that separate municipal numbers are given only for the purpose of assessment of tax by municipality. assessment will be made separately if a particular portion of . the building is let out and a separate municipal number will be assigned to such portion which is done only with a view to fetch more income by way of tax from the owner of the building. therefore, it is contended that mere assigning of separate municipal number to the petition schedule premises shall not be the sole determining factor.7. the learned counsel for the respondents-legal heirs of the deceased tenant, however, supported the judgment under revision.8. so as to seek eviction under section 10(3)(c) of the act, the landlord must be able to first of all satisfy the court that his requirement of the demised premises is bona fide and genuine. he must also prove by adducing cogent evidence that the building in occupation of the tenant is part of the building in which he is residing or carrying on business, as the case may be. here in this case, since the controversy mainly revolves round the question whether the demised premises is part of the building which is in occupation of the landlady, i shall proceed to deal with only this aspect. as held by the supreme court in s.p. jain v. krishna mohan, : [1987]1scr411 , so as to determine whether the two premises, are separate or consist of one and the same building, the tests that are to be applied are: (1) consider the building and see whether it constituted a whole house or part of the house; (2) if one part was reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building, then both the parts of the building constitute one dwelling house. to arrive at this finding, the relevant factors that are to be taken into consideration are: (a) the situation; (b) entrance; (c) the municipal number; (d) the nature of the construction; (e) inter communication between the two parts; (f) completeness and independence of each unit; and (g) other relevant material circumstances. it was held in that case that none of the above taken singly is decisive but the cumulative effect should be considered. keeping the above guidelines in mind, let us proceed to examine whether the demised premises is part of the building which is in occupation of the landlady, with the aid of the evidence that is available on record.9. ex.p-1 is the plan which is marked to show the existence and situation of the demised premises and the building in which landlady is residing. in my opinion, this document alone will clinch the issue. though it was averred in the counter by the tenant that the said plan is not a correct one, no attempt was ever made by him to disprove the said plan. be that as it may, as seen from the plan, the demised premises is situated facing north and abutting the road which is measuring 18'.3' in width. it is a single room measuring 15' x 10'. the residential accommodation of the landlady is situated exactly on the back side of the demised premises, both separated by a single wall. on the western side of the two premises, there is a narrow lane which is measuring 10'.6' in width. in between the said lane and the demised room, a narrow room is constructed by the landlady alongside the western wall of the demised room, in which provision is made for toilet. the said narrow room is attached to the room measuring 14'.0 x 10'-3 1/2', which is situated exactly on the back side of the demised premises i.e., on its southern side, separated by a common wall. the said room is earmarked as bed room by the landlady. behind the said bed room, there is another room measuring 10'.2' x l0'.0 which is being used as kitchen and store room. to the west of the said kitchen room, there is a small verandah measuring 5'.2' x 10'. main entry is provided from the verandah. it is further seen that the demised premises is completely enclosed on two sides i.e., on west and southern sides, by the building of the landlady. since both the premises are abutting each other, a provision can easily be made for entry in the wall which is situated in between the bed room of the building of the landlady and the demised premises so as to have access from the demised premises into the building of the landlady, if desired. on a bare look at the plan, it is clear that the plan was got drawn by the original owner with an idea of constructing a shop room in the front side of the site i.e., on the northern side and a residential house on its back abutting the said shop room. after construction of the entire structure, it seems, the demised premises i.e., shop room (now called as garage like room) was first sold away to one jayavanthi and later the residential portion to the landlady. subsequently, jayavanthi sold away the demised premises to the landlady. thus, from the very beginning, both the demised premises and the house of the landlady had been in separate possession and occupation by different owners, even though the structure of both the premises is one and the same. that is one of the reasons why the municipality gave separate assessment numbers to both the premises. even if it is presumed that both the demised premises and the building of the landlady are in possession of one and the same owner from the very beginning, still assessment numbers will be given separately since the assessment to the demised premises, which is being used for non-residential purposes, and the assessment to the building of the landlady, which is used for residential purposes, is different and the tax that is payable is also different. therefore, separate assessment numbers had to be given to both the buildings. but, that factor alone cannot alter the very nature of the structure and its oneness. for all these reasons, it can safely be said that the demised premises is part of the main structure upon which the residential house of the landlady is situated.10. but, the lower appellate court applying the decision of the supreme court in gangaram's case (1 supra) to the facts of the case on hand, held that the demised premises is not part of the main building. it held thus:'the ratio of the aforesaid judgment of the supreme court relates to an identical set of facts as is in the present case and consequently, the judgment of the supreme court in gangaram's case (1 supra) is binding on me. as stated above, there is practically no difference in the facts of the present case and the facts of the case dealt with by the supreme court in gangaram's case (1 supra). consequently, i uphold the findings of the learned iii addl. rent controller, hyderabad, dismissing the eviction petition.'but in my opinion, as far as the structure of the building is concerned, there is no parity in between the building in gangaram's case (1 supra) and the building in this case. the building in gangaram's case (1 supra) was originally constructed into four independent residential portions providing all basic amenities like electricity, water supply, drainage, toilets etc., to each portion and thus each portion is a separate and independent tenement even though they are built with common walls. the said building is like an apartment with number of flats which is a common phenomenon in the metropolitan cities. thus, in the particular fact situation that obtained in gangaram's case (1 supra), the supreme court held that the demised premises, which is one of the four portions in the building situated by the side of the portion in occupation of the landlord, could not be construed as part of the 'building' (i.e., portion) occupied by the landlord. the court below is wholly misguided by the ratio in the decision of the supreme court, which arose on a different fact situation, and erroneously applied the said decision to the facts of the case on hand. what section 10 (3) (c) of the act envisages, as has been held by the supreme court in gangaram's case (1 supra), is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other occupied by the tenant. in this case, the room in occupation of the tenant and the residential portion in occupation of the landlord are built on one and the same structure initially by a single owner. of course, subsequently, the two premises were sold away separately to two different individuals. those two owners further sold away the premises to the landlady on different dates. merely because the premises were in occupation of different owners for some time, as held by the supreme court, it cannot be said that the two premises are separate and distinct. in view of the oneness of the building, i am of the opinion that the demised premises is part of the main building. for all these reasons, i have no hesitation to say that the courts below have misread the evidence that is available on record and came to a different conclusion. that conclusion deserves to be set aside by this court in exercise of its revisional jurisdiction under the a.p. rent control act.11. the learned counsel for the respondent, however, vehemently contended that this court cannot reappreciate the evidence while exercising its revisional jurisdiction. in support of his contention, he placed strong reliance upon the latest judgment of the supreme court in smt. fatima bee v. mahamood siddiqui, : air1996sc2537 . but, it is settled law that the high court's revisional jurisdiction under the a.p. rent control act is much wider than that which is exercised under section 115 of the civil procedure code. under section 115 c.p.c, the high court is called upon to see only whether the order under revision suffers from any illegality or irregularity or whether the court below while passing the order has exercised the jurisdiction which is not vested in it or whether it had failed to exercise the jurisdiction which is vested in it. the revisional court under the code is not supposed to go into the merits or demerits of the case. but, the high court exercising revisional jurisdiction under the rent control act is called upon to see whether the order under revision, which is passed on an assessment of the entire oral and documentary evidence that is available on record, suffers from any illegality or not. for that, the revisional court under the act is, if necessary, duty bound to go through the evidence and must be able to satisfy itself that the finding of the court below is based on evidence and that there is no illegality nor infirmity in coming to such conclusion. in case, on a perusal of the evidence, the revisional court finds that the conclusions arrived at by the court below are not based upon proper appreciation of evidence and thus they are illegal, the refvisional court is bound to interfere with such findings and correct the illegality committed. in other words, it can be said that though the revisional court exercising its jurisdiction under the a.p. rent control act is not supposed to reappreciate the entire evidence that is available on record, still it is not precluded from independently arriving at a conclusion as to the legality or otherwise of the finding of the courts below with the aid of the evidence on record. in this case, the courts below, as already observed, have misread the evidence on record which is crystal-clear and came to a conclusion that the demised premises is not part of the main structure and erroneously applied the ratio in gangaram's case (1 supra) and thus committed a patent illegality, which, in my opinion, needs to be corrected by this court in exercise of its revisional jurisdiction under the act. this, in my opinion, does not amount to reappreciation of the evidence. moreover, if this illegality is not corrected even at this revisional stage, it would amount to miscarriage of justice. for these reasons, while respectfully agreeing with the ratio laid down in fatima bee's case, : air1996sc2537 . i reject the contention of the learned counsel.12. in the result, the c.r.p. is allowed and the order under revision is set aside. the petition filed by the landlady for eviction of the tenant is allowed. time for eviction 6 months on usual payment of rentals.