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RCA.No. 15 of 2017
IN THE COURT OF THE ADDITIONAL CHIEF JUDGE
CITY SMALL CAUSES COURT AT HYDERABAD.
Dated this Tuesday the 6 th day of April, 2021
PRESENT: Smt. Renuka Yara,
(FAC) Additional Chief Judge
R.C.A.No. 15 of 2017
Between Balaji Sweet House, Premises No.7-3-13/5, Opp:SPG Church Compound, Station Road, Secunderabad, rep.by its Proprietor
Sri Rameshwar Kolariya .. Appellant/Petitioner
And
St.Thomas (SPG) Tamil Church Society, H.No. 7-1-6, St.Thomas (SPG) Tamil Church Compound, Opp.Santosh Hotel, Station Road, Secunderabad rep.by its property Secretary Dr.David M Thomas S/o. Late S R Thomas, aged about 56 years, R/o. 1-8-702/32, Padma Colony, Nallakunta,
Hyderabad. ..Respondent/Respondent
Appeal against the order, dated 22-12-2016 in R.C. No.44 of 2014 on the
file of the Principal Rent Controller, City Small Causes Court,
Secunderabad.
Between:
St.Thomas (SPG) Tamil Church Society, H.No. 7-1-6, St.Thomas (SPG) Tamil Church Compound, Opp.Santosh Hotel, Station Road, Secunderabad
rep.by its property Secretary Dr.David M Thomas .. Petitioner
And
Balaji Sweet house, rep.by its Proprietor
Sri Rameshwar Kolariya .. Respondent
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RCA.No. 15 of 2017
The present petition having listed on 18-03-2021 before me for final hearing in the presence of Sri D.Madhava Rao, Advocate for the petitioner and Sri Suresh Shiv Sagar, Advocate for respondent and the matter having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
This is an appeal preferred by the respondent/appellant against the petitioner/respondent aggrieved by the order of the learned
Principal Rent Controller, City Small Causes Court, Secunderabad in
R.C.No.44 of 2014 dated 22-12-2016 whereby the fair rent is fixed as
Rs.10/- per sft. with total monthly rent of Rs.7,890/- and for enhancement at the rate of 5% every year with respect to petition schedule property bearing mulgi admeasuring 789 sft i.e., part of the Church property in
House No.7-3-13/5, Opp. Alpha Hotel,, Station Road, Secunderabad.
2.For the sake of convenience the appellant/respondent/tenant is referred as the ‘appellant’ and the respondent/petitioner/landlord is referred as the ‘respondent’.
3.Initially, the respondent herein filed R.C.No.44/2014 against the appellant/respondent herein under Section 4(1) of Telangana Buildings (Lease, Rent & Eviction) Rent Control Act seeking relief of fixation of fair rent at Rs.100/- per sft and for costs of the petition.
4.The case of the respondent is that originally Rev.A.Sabastian a
Tamilian was the owner of St.Thomas Church and its open site situated at 3
RCA.No. 15 of 2017
Secunderabad. The said Rev.A.Sabstian alienated the St.Thomas Church property in favour of congregation of the Church known as Secunderabad
St.Thomas Mission under a registered document dated 14.05.1877 and applied for issuance of a title deed in favour of Secunderabad St.Thomas
Mission. The Cantonment Magistrate’s Court issued title deed dated 28.05.1877 in favour of Secunderabad St.Thomas Mission. The members of congregation who were all Tamilians were doing prayers in SPG pattern of worships and named the Church as St.Thomas SPG Tamil Church.
Subsequently, the Church had its own Bishop and therefore the Church was elevated and called as St.Thomas (SPG) Tamil Cathedral,
Secunderabad. The elected members of the congregation used to manage
St.Thomas Church and its properties. However, in order to better administer the property the members got the Church registered as a
Society under the name and style of “St.Thomas (SPG) Tamil Church
Society”. The Society has been registered in the year 1991 under the
Societies Registration Act. The said Society continued to manage the
Church and its properties. The management committee developed and managed the Church properties including the petition schedule property.
5.The appellant herein was inducted in to the mulgies admeasuring 789 sq.feet which is part of Church property in house No.7-3- 13/5 opposite, Alpha Hotel, Station Road, Secunderabad. The appellant initially paid an amount of Rs.700/- towards rent. The appellant paid last rent to the respondent in September 2000 at Rs.700/- per month.
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RCA.No. 15 of 2017
Thereafter, the appellant herein stopped paying rents to the respondent and committed willful default. In the circumstances, the respondent filed
R.C. for eviction on the ground of willful default and said R.C.No. 29 of 2012 is pending on the file of Principal Rent Controller, Secunderabad.
Even after filing of R.C for eviction, the appellant continued his adamant attitude and did not pay the rents. Since the appellant is not paying proper and appropriate rent without prejudice to the rights in R.C.No.29 of 2012, the petition under appeal has been filed for fixation of fair rent.
6.It is further case of the respondent that the petition schedule premises is located in a commercial zone of the city where the rent would not be less than Rs.100/- per sft. excluding electricity and water charges.
While so, the appellant who is in occupation of the premises without paying rent has caused damage to the respondent. The respondent being a
Society is dependent on donations and rents for its functioning. Therefore, non payment of rent by the appellant is causing hardship to the respondent. The respondent pleaded that rent of Rs.700/- per month paid in September 2000 is meager as the rental value has increased, therefore the respondent requested the appellant to pay the rents at the enhanced rate in conformity with the market value. The appellant did not show any interest in paying the rents at enhanced rate. According to the respondent, it is just and necessary that the appellant should pay the rent as per market value and any contravention thereof is causing grave loss 5
RCA.No. 15 of 2017 and trauma to the respondent. Since there is no alternative the respondent filed the RC under appeal for fixation of fair rent.
7.The appellant (respondent in RC.No.44/2014) opposed the petition by filing written counter denying all the averments of the petition in totality. The case of the appellant is that the petition for fixation of fair rent is not at all maintainable as there is a title dispute between St.Thomas (SPG) Tamil Church Society on one hand and Church of South India (herein after referred as CSITA) on the other hand. A series of cases have been initiated and the litigation has not attained finality. The cases filed by the rival parties are pending before various courts. In the circumstances, not only the respondent but CSITA is also claiming rents from the tenants. A suit has been filed in O.S.No.145 of 1997 on the file of XII Fast Track Court,
City Civil Court, Secunderabad for declaration that the respondent and others have no claim over the schedule property of O.S.No.145 of 1997 and for mandatory injunction to direct the tenants to deal only with the CSITA in respect of any rents deposited and for grant of permanent injunction against the respondent and others from making any kind of claim in respect of the suit schedule property.
8.During pendency of the said suit in O.S.No.145/1997, an application has been filed that the tenants should not pay the rents to any one and the same should be deposited into the court. The XII Fast Track
Court, City Civil Court, Secunderabad has passed an order in I.A.No.390 of 6
RCA.No. 15 of 2017 1997 in O.S.No.145 of 1997 directing all the tenants to deposit the rents into court. Therefore, the tenants have been depositing the rents to the credit of the suit in O.S.No.145 of 1997. The learned XII Senior Civil Judge dismissed the suit in O.S.No.145/1997 with some observations. The extract of text of said Judgment produced in the counter is not reiterated herein to avoid verbosity. The suit in O.S.No.145/1997 has been disposed of holding that the CSITA has got right to manage the suit schedule properties. It is also held that the respondent herein being a congregation cannot hold any properties and the same is unauthorized and illegal.
Further, it is held that if a trespasser comes into possession of any immovable property, the remedy of the owner is to seek ejectment of the trespasser from the property and seek mesne profits for illegal use and occupation of the property. Aggrieved by the Judgment in
O.S.No.145/1997, both the respondent herein and CSITA have preferred
appeals and the said appeals are pending on the file of the I Additional
Chief Judge, City Civil Court, Secunderabad. While so, the tenants continued to deposit the rents to the credit of O.S.No.145/1997 from April 2011 onwards till filing of R.C.No.29 of 2012. The appellant has paid rent to CSITA as demanded by them as there was threat to initiate action in case of default. Thereafter, after filing of R.C.No. 29/2012 by the respondent, the tenants have filed I.A. for deposit of rents to the credit of RC.No.
29/2012 and the said rents have been paid till date and there are no arrears of default. Neither the respondent nor the CSITA claimed any right over the rents deposited to the credit of O.S.No.145 of 1997 and therefore, 7
RCA.No. 15 of 2017 the said amount is still lying to the credit of the suit account. In the circumstances, the appellant pleaded that filing of eviction cases on the ground of default is not correct since the tenants are depositing the rents
in the court where the cases are pending adjudication.
9.Apart from the grounds cited by the appellant in the aforementioned paragraphs, the appellant claimed that the petition for fixation of fair rent is not maintainable since the property which is located on Subhash Road called as Station Road was once upon a time was a busy place in Hyderabad and Secunderabad but after globalization
Secunderabad Station has no longer such prominence as several stations have developed like Kachiguda, Nampally, Begumpet, Bolarum which have become terminals from where trains have been originating. Due to improvement in the transport system public are not just coming to
Secunderabad to take or avail train services. Therefore, floating public which used to visit Secunderabad has drastically come down and therefore business has reduced comparatively in proportion to the reduction of traffic. Also, Gandhi Hospital which was hitherto on the other side of the
SPG Church has been relocated ten years back. Thereafter, the vegetable market which added attraction for people to come and procure their groceries, vegetables has been shifted and relocated at a diferent place.
Said relocations have resulted in fall in float of public and fall in commercial activity. As such, according to the appellant, Secunderabad is no a longer busy commercial area and no importance wouldbe placed for 8
RCA.No. 15 of 2017 location of petition schedule property in Secunderabad. Further, the appellant pleaded that there are no amenities to the property. At some places, SPG Church property has been afected by acquisition for Metro lane. This acquisition has afected most of the shops. According to the appellant, the Church authorities have become openly commercial minded and they are trying to move the tenants who are depending on the shops for their livelihood. It is pleaded that several families are surviving on the small businesses apart from several employees for whom employment was generated by the shops. Their survival and security is sought to be halted by the action of the Hyderabad Metro Rail on one hand and the Church authorities on the other hand who are acting against their own philosophy as propagated in the holy Bible. The appellant denied the rental values growing up in the area. The neighbouring tenants are paying much less rent than the appellant. In this respect, the appellant cited M.S.Footwear paying Rs.780/- for 128 sft., in respect of door No.7-3-9, Deccan Watch
Company paying Rs.760/- for 118 sft, in respect of door No.7-3-5, Abdul
Sattar Flower Shop paying Rs.900/- for 110 sft, in respect of door No.7-3-6,
Prime Sports paying Rs.760/- for 112 sft, in respect of door No.7-3-7, Star
Watch Company paying Rs.780/- for 128 sft, in respect of door No.7-3-8.
10.It is further pleaded that the respondent has no locus-standi to seek fixation of fair rent without adding CSITA as proper and necessary party to the RC. It is pleaded that fair rent is fixed only once in lifetime of a property. Further, it is pleaded that in case CSITA succeeds in the case then 9
RCA.No. 15 of 2017
CSITA would be deprived of an opportunity to put forth their view to seek fixation of fair rent. It is also pleaded that the petition has to be dismissed as the respondent filed RC without knowledge of the CSITA who is claiming right over the property. It is pleaded that the requirements of the Rent
Control Act are not complied, that Rule 28 is not complied, that the area of the property is incorrect, and therefore there is non-disclosure of material facts. It is pleaded that AS No.39/2011 is pending regarding rights of the rival parties and neither of the rival parties are entitled to claim any right over the property nor entitled to claim rents as against the tenants.
11.The appellant pleaded that the respondent has to prove that the petition schedule property is located in a place where core commercial activity is carried on. It is pleaded that there has been no renovation or repair works ever since the property is let out for rent. It is pleaded that the public movement is less, that there is no parking place, as such the rent as claimed by the respondent is not prevailing in the area. It is pleaded that the rent claimed by the respondent has to be paid by the other tenants in other areas if the property is of similar nature. The RC filed for fixation of fair rent, according to the appellant, is only to harass the tenants in the absence of any valuation report and any documentary evidence to substantiate the claim of the petitioner, more so, when the property is old without any amenities. Hence, it is pleaded that the petition for enhancement of rent is not maintainable. The enhancement sought is claimed to be exorbitant and the motive for filing cases is to 10
RCA.No. 15 of 2017 harass the tenants. According to the appellant, the rent is paid in consonance with the prevailing rents in and around the petition schedule property. The appellant is paying the property tax and maintenance from the day of inception of the tenancy. According to the appellant, during pendency of RC for eviction, the RC for fixation of fair rent is filed only to harass him. To sum up, it is pleaded that the respondent is not authorized to file any cases and therefore prayed that the petition be dismissed.
12.On the basis of above pleadings, the following points for determination have been settled.
1) Whether the petitioner is entitled for fixation of fair rent in respect of the petition schedule property @ Rs.100/- per sft?
2) If so, to what relief?
13.In support of its case, the respondent society has examined
P.W.1 and got marked Exs.P.1 to P.3. While so, the appellant herein did not examine any witness and also did not mark any documents on his behalf.
14. Upon considering the evidence placed on record, the learned
Rent Controller answered the point in favour of the respondent holding that the appellant herein paid rent of Rs.700/- per month in September 2000, that according to P.W.1, the petition schedule property is located in commercial area and that the rent paid by the appellant is meager. The learned Principal Rent Controller observed that there is admission on the part of P.W.1 that there are no amenities such as drainage, water and 11
RCA.No. 15 of 2017 electricity and that the petition schedule property is a shed. The tenants have made arrangement for their own facility. It is observed that according to P.W.1, the petition schedule property is situated within the Church compound at Secunderabad Station and it is centrally located but the respondent did not chose to lead evidence in support of the said contention. It is also observed that there is a title dispute over the petition schedule property between the respondent herein and third parties. The appellant not examining any witness has been taken as a ground to conclude that the appellant is tenant of the respondent and doing business in the petition schedule property by paying rent of Rs.700/- per month. It is held that the appellant did not make out any case that the petition schedule property is in dilapidated condition, instead the appellant has been carrying on business and depositing rents regularly as per orders in A.S.No.39/2011. The petition schedule property is centrally located at Secunderabad Railway Station andprominent businesses are carried out in the said area. Therefore, it is held that the petition schedule property is situated in highly commercial area. Further, it is observed that part of the petition schedule property was demolished by Metro works in
October 2010. Taking judicial notice of the locality, considering the present market value, escalation in the prices and nature of business, the learned Principal Rent Controller enhanced the rent at Rs.10/- per sft which would work out to Rs.7,890/- per month for 789 sq.feet. Further, the learned Principal Rent Controller ordered enhancement of rent by 5% for 12
RCA.No. 15 of 2017 every year. Aggrieved by the order of the learned Rent Controller, the present appeal has been preferred.
15.In the grounds of appeal, the appellant contended that allowing the petition and enhancing rent from Rs.700/- to Rs.7890/- is against law and unfair. It is contended that the Rent Controller has considered unwarranted and unpleaded contentions and raised the rent exorbitantly resulting in miscarriage of justice. It is pleaded that the order passed by the learned Rent Controller is cryptic and totally silent about the reasoning behind the enhancement of monthly rent from Rs.700/- to
Rs.7,890/- per month. It is contended that the learned Rent Controller failed to consider the fact that no repairs are carried out, no amenities are provided and the property tax is paid by the appellant. It is also contended that the learned Rent controller failed to appreciate that the respondent failed to establish the petition schedule property being in a commercial area. It is also contended that as per the precedent laid down in AIR 1986
SC 1444, the court can take judicial notice of enormous manifold increase
of rent throughout the country and by misdirecting herself the learned
Rent Controller fixed the rent at Rs.7,890/- per month. It is contended that the learned Rent Controller failed to state the reasons as to how the court has arrived at the rent payable at 10/- per sft when the respondent herein did not adduce any evidence to demonstrate the prevailing rent in the area.
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RCA.No. 15 of 2017
16. Further, it is contended that M/s.Alpha Hotel which is the adjoining tenant is paying only Rs.2/- per sft whereas, the Rent Controller arrived at an illusionary and imaginary conclusion. It is contended that the learned Rent Controller could not arrive at a correct conclusion about location of petition schedule property as to whether it is located on
Station road or situated in sub road of Subhash road and therefore fixed unjust and unreasonable rent. It is pleaded that the pleadings and evidence are self contradictory. Also, it is contended that the learned Rent
Controller has erred in directing the appellant to enhance the rent of petition schedule property at the rate of 5% every year when no such prayer is made by the respondent. It is contended that the learned Rent
Controller erred in appreciation of pleadings and evidence with respect to admission by P.W.1 that open place has been given to the tenants for construction of shops which negates the jurisdiction of Rent Controller relating to open lands in view of the Judgment in AIR 2006 AP 8. Further, it is contended that the learned Rent Controller did not appreciate whether there is any rival claim between the respondent herein and CSITA and therefore, the Rent Controller would not have jurisdiction when there is a title dispute between the rival parties. On all aforementioned grounds, it is contended that the petition should have been dismissed. Lastly, it is contended that the learned Rent Controller failed to appreciate that the appellant has denied the jural relationship between the parties. Hence, prayed that the appeal be allowed by setting aside the order of the learned Rent Controller.
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RCA.No. 15 of 2017
17.Now the points for determination are:
1) Whether there are just and reasonable grounds to set aside the order of the learned Principal Rent Controller, City Small Causes Court, Secunderabad in R.C.No.44/2014 dated 22.12.2016 as being erroneous in facts and law?
2) To what relief?
18.The arguments of both counsels have been heard on-line through Video Conference.
19.The counsel for appellant emphasized that title has been granted by a Magistrate in the year 1887, that the tenants are being inducted by the builder, the tenants paid the rents and then there was dispute between the respondent herein and CSITA. The dispute is over title and in that regard a civil suit has been filed in O.S.No.145 of 1997 on the file of XII Fast Track Court, City Civil Court, Secunderabad. An interlocutory application has been allowed in the said suit with a direction to deposit the rents in the court. Accordingly, the tenant deposited the rents to the credit of the suit. The said suit in O.S.No.145 of 1997 has been decreed in favour of CSITA. Aggrieved by the same, the respondent preferred a first appeal and the first appeal has been disposed of in favour of CSITA. The respondent preferred a second appeal and the same is not yet admitted
before the Hon’ble High Court. In the back drop of this pending litigation a
petition under appeal has been filed for fixation of fair rent. The counsel
for appellant urged that the counter is filed disputing the title and
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RCA.No. 15 of 2017 whether a petition for fair rent is maintainable when open land is given and sheds are raised by the tenant and lastly that no case is made out for enhancement of rent as no evidence is adduced about the prevailing rental value in the area.
20.In response, the counsel for respondent argued that the appellant admitted to be a tenant and any person who is collecting rent would be a landlord irrespective whether such person is having title or not.
It is argued that the definition of the landlord under the Rent Control Act determines as to who is to be considered as a landlord when an open land is given on rent and tenants raised sheds. It is argued that no evidence is brought on record by the appellant about raising sheds and therefore no such defence can be taken. Further, it is argued that a tenant has no locus- standi to take advantage of any dispute between the landlord and a third party.
21.In reply, the counsel for appellant argued that the property being given on rent is not disputed. However, it is argued that the respondent does not have title as per judicial orders. When there is admission that open land is given on rent, it is contended that admitted facts need not be proved and therefore the defence taken by the appellant is valid. It is emphasized that until the title is finally adjudicated the title vests in a third party i.e. CSITA and the respondent who gave the property on rent has no locus-standi to maintain the petition.
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RCA.No. 15 of 2017 22.Coming to the merits of the appeal, the appellants are challenging the maintainability of the petition for fixation of fair rent by the respondent on three grounds. One is that the title is in dispute between the respondent herein vis-a-vis the CSITA. Secondly, the appellant is questioning the maintainability of petition on the ground that open land is given on rent and sheds are raised by the tenant and whether fixation of fair rent can be made for open land. Lastly, according to the appellant no case is made out for enhancement of rent since no evidence is led in that regard by the respondent.
23.The first point which is to be considered is the maintainability of the of the petition by the respondent under Section 4(1) of Rent Control
Act. According to P.W.1, originally Rev. A. Sabastian a Tamilian was the owner of St. Thomas Church and its open site. He alienated the same in favour of congregation of the said Church known as Secunderabad St.
Thomas Mission. Thereafter, title deed has been issued by the Cantonment
Magistrate on 28.05.1877. The members have given a name to the Church
as St. Thomas (SPG) Church, Secunderabad. Subsequently, Telugu speaking people also started coming into the Church and to inform the people the congregation started calling the Church as St.Thomas (SPG) Tamil Church.
Subsequently, when it had its own Bishop, the Church has been elevated and is being called as St.Thomas (SPG) Tamil Cathedral, Secunderabad.
From the beginning, the Congregation of the Church through its elected 17
RCA.No. 15 of 2017 members used to manage the St.Thomas Church and its properties. The management committee developed and managed the Church properties.
The appellant herein has been inducted as a tenant in a mulgi admeasuring 789 sq.feet part of Church property in H.No.7-3-13/5. The respondent paid rent of Rs.700/- per month till September 2000. These aforementioned pleadings are not denied by the appellant in the written counter filed
before the learned Rent Controller. Any pleading when not denied
specifically is deemed to be admitted.
24.The pleadings of the respondent in R.C.No.44/2014 show that the respondent is the landlord and has inducted the appellant herein as a tenant of mulgi admeasuring 789 sq.feet part of Church property H.No.7-3- 13/5 opposite to Alpha Hotel, Station road. According to the respondent, the appellant herein paid the monthly rent lastly in September, 2000 for an amount of Rs.700/-. When the appellant stopped paying rents, the respondent filed R.C.No.29/2012 for eviction of the appellant and the same is pending on the file of Principal Rent Controller, Secunderabad.
The contents of the petition in R.C.No.44/2014 reveal that there is landlord and tenant relationship between the respondent and the appellant herein.
The appellant paid the last rent in October 2000 and on failure to pay the subsequent rents the respondent herein initiated R.C. for eviction in
R.C.No. 29/2012.
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RCA.No. 15 of 2017
25.As against these pleadings, the contention of the appellant is that there is a title dispute between St.Thomas (SPG) Tamil Church Society on one hand and CSITA on the other hand. The title dispute has not yet attained finality. A suit has been filed on the file of XII Fast Track Court,
City Civil Court, Secunderabad in O.S.No.145/1997 seeking declaration that the petitioner and others have no other claim over the suit schedule property, for mandatory injunction directing the tenants to deal with only
CSITA and for grant of permanent injunction. An I.A. No.390/1997 has been filed in O.S.No.145/1997 wherein all the tenants have been directed to deposit the rent to the credit of the suit. The suit has been dismissed with some observations, aggrieved by the same both parties have filed appeals and the appeals are pending before the 1st Additional Chief Judge,
City Civil Court. It is pleaded that the rents are deposited to the credit of
O.S.No.145/1997 and neither the petitioner nor CSITA have filed any
application to withdraw the deposited rents.
26.The appellant denied the respondent’s title on the basis of pending litigation. In this regard, the counsel for respondent referred to the Judgment of Hon’ble High Court of A.P. reported in 1995(2) ALT 217 in case between Jaganadan Mallik Vs. Accommodation Controller, Hyderabad, wherein it is held that “Allotment of a building belonging to a person by
Government to a person who vacated the same afterwards. Application has been made by the owner for release of the building. Claim made by a third party as an owner of the building, order of the Government allotting the 19
RCA.No. 15 of 2017 building to another person held not sustainable on the ground of dispute of the ownership.”
27.Further, the respondent referred to the Judgment of Hon’ble
High Court of A.P. reported in 2006 (3) ALD 616 in case between Laveti
Ramayamma Vs. Bondala Nukaraju, wherein a reference is made to the definition of ‘landlord’ as per A.P. Buildings (Lease, Rent & Eviction) Control
Act, 1960, Section 2 (vi) that “the landlord need not be an owner of the premises and a person who receives rent from the tenant is a landlord.”
The implication to be drawn from the aforementioned citation is that even if the respondent is not the title holder, as an entity which collected the rents, the respondent is the landlord.
28.The respondent referred the Judgment of the Hon’ble High
Court of A.P. reported in 2013(1) ALD 140 in case between Immadisetty
Nagarathnamma (died) per L.Rs Vs. Gostu Prameelamma, wherein it is held that “In order to constitute an act of denial of title, it must be established that the tenant has, through his expressed acts, conveyed to the landlord that he is not the owner of the property or that he is disputing his title either by setting up title in himself or in someone else.” This Judgment when applied to the case at hand shows that the appellant herein did not lead evidence to show denial of title, conveyance of denial of title to the landlord and in whom the title is set up. Thus, mere pleadings of defence disputing the title without supporting evidence would not help the appellant’s case.
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RCA.No. 15 of 2017 29.In a Judgment of the Hon’ble Supreme Court of India reported in AIR 1987 S.C. 2192 in case between D.Satyanarayana Vs. P.Jagadish, it is held that, “the tenant cannot deny the legal title of the landlord but there are exceptions and he cannot be forbidden from denying the derivative title of persons claiming through the landlord and that when the tenancy has been determined by title paramount, no question of estoppel arises.” In the present case, the appellant denied the respondent’s title in the pleadings but did not lead evidence. Mere pleadings without the support of oral or documentary evidence is not sufficient to rebut the respondent’s claim.
Therefore, appellant cannot challenge the title of the respondent.
30.The appellant has cleverly avoided to mention as to who has inducted him as a tenant into mulgi i.e., whether the respondent herein or the CSITA. Since there is no denial of the respondent’s pleading that the respondent as landlord has inducted the appellant as a tenant, the same has to be taken into consideration, to infer that the respondent is the landlord and the appellant is the tenant.
31. It is a point to be noted that on account of pending litigation between the rival parties the tenants continued to pay the same rent that was paid way back in the year 2000 till date inspite of the fact that there has been exorbitant raise of land and rental values. The respondent filed petition seeking eviction being landlord and has also filed petition under 21
RCA.No. 15 of 2017 appeal R.C.No.44/2014 seeking for fixation of fair rent. The landlord who has sought eviction is also entitled to seek fixation of fair rent, as such this court sees no issue in the respondent’s right to file R.C for eviction and fixation of fair rent.
32.With respect to the title, it is argued that the title is finally adjudicated and the same vests in another identity i.e. CSITA. Hence, it is contended that the respondent herein would have no locus-standi to maintain the petition for fixation of fair rent though it is the respondent who has let out the property on rent. As per Telangana Buildings (Lease,
Rent & Eviction) Control Act, 1960, Section 2 (vi) “landlord” is defined as follows:
“ ‘Landlord’ means the owner of the building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator etc.”
33.As per the above-mentioned definition, the respondent herein is the landlord who collected the rents from the appellant till October 2000. Only when a dispute arose between the respondent and CSITA, on account of court order in I.A.No.390/1997 the tenants started paying rents to the credit of O.S.No.145/1997 and are continuing to do so. When the appellant herein is paying rents to the credit of O.S.No.145/1997 as a tenant, the tenant has no right to question the title of the landlord until 22
RCA.No. 15 of 2017 the same is finally decided by a competent court. As per the own pleadings of the appellant the litigation over title between the respondent and CSITA has not yet attained finality. That being the case the appellant herein would have no right to question the title of the respondent herein. As and when the title dispute attains finality either the respondent or the rival contestant CSITA would be declared to be the title holder of the property.
Whereas, the appellant herein cannot take advantage of the dispute between the respondent and the third party claiming title to the petition schedule property.
34.Secondly, the defence taken is that no R.C. can be maintained for fixation of fair rent with respect of any open land given for rent. It is the case of the respondent that the appellant herein is inducted as a tenant into a mulgi of 789 sq.feet in house bearing No.7-3-13/5. There is no specific denial of this pleading by the appellant. The pleading is very categorical to the efect that the appellant is inducted into a mulgi which is in house bearing No.7-3-13/5. In case the pleading is false, the burden is on the appellant to state when an open land is given on rent, when the shed was constructed, when the door number was obtained and who obtained door number etc. However, the respondent has chosen to avoid disclosure of all these details. In fact, the respondent did not even give details as to when the shed is constructed and who obtained the door number. In the circumstances, there is no option left but to infer that the appellant herein has been inducted into a mulgi which was already constructed and had a 23
RCA.No. 15 of 2017 door number. In fact, there is no pleading about open land being taken for rent. The appellant has relied upon the admission of P.W.1 in cross- examination that open place is given to the tenant to construct shops and that the shops are temporary shops. In this regard, the contention of respondent is that no evidence is led that the sheds are raised by the tenants. The defence taken is that admitted facts need not be proven or pleaded. Having regard to the rival contentions, this court is of the considered opinion that even if there is no need to prove the admitted facts, there is a need to plead the defence taken. The defence has to be disclosed in the pleadings to ensure that the opposite party is not taken by surprise. This defence of open land being given on rent was raised only during the cross-examination of P.W.1 without any supporting pleading in the counter.
35.It is admitted fact that the petition schedule property no longer remains open land but has temporary sheds in which shops are being run. It is for same shop that the appellant herein paid rents upto
October 2000 to the respondent and is continuing to pay rent to the credit of O.S.No.145/1997 pending on the file of XII Fast Track Court, City Civil
Court, Secunderabad. When the appellant is paying rent for the property ever since induction, being a tenant prior to the filing of the suit in the year 1997, almost for a period of 23 years, the locus-standi of the respondent to file the petition for fixation of fair rent cannot be questioned.
24
RCA.No. 15 of 2017
36.Lastly, about the petitioner not leading evidence to demonstrate prevailing rental value, it is borne by record that no document is filed before the learned Rent Controller to prove the existing rental value in the area. The locality of the petition schedule property being in prime business area is taken into consideration by the learned
Rent Controller for fixing fair rent. There is an objection raised for increasing the rent from Rs.700/- to Rs.7890/- per month without any basis.
37.In this regard, the counsel for respondent referred to the
Judgment of the Hon’ble High Court of A.P. in 2004(6) ALT 275 in case between Sai Krishna General Stores and others Vs. B.Sai Anand Prasad and another, wherein it is held that, “the fixation of fair rent under the Act is a jurisdiction not available in the civil courts. It is held that “The Rent
Controller has jurisdiction to fix fair rent regardless of the quantum to be fixed and even if it exceeds Rs.1,000/- which is the pecuniary limit of rent fixed for entertaining a petition under the Act.” The appellant did not raise any objection about the jurisdiction of Rent Controller to enhance the fair rent exceeding Rs.1000/-, as such this citation is not relevant.
38. On the quantum of fair rent, it is to be observed that the respondent has sought payment of Rs.100/- per sq.feet. In said backdrop, in case no assessment was made, the learned Rent Controller should have ordered payment of monthly rent of Rs.78,900/-. However, the learned
Rent Controller has taken into consideration the fact that there are no 25
RCA.No. 15 of 2017 amenities, no parking place, no maintenance and therefore, fixed the rent at Rs.10/- per sft i.e. 1/10th of the claim made by the respondent. Though the respondent did not file any documentary evidence and did not examine any independent witness got examined P.W.1 to prove that the petition schedule property is situated in a prime business locality. In this regard, the judgment of the Hon’ble Supreme Court reported in AIR 1986
SC 1444 in case between Rattan Arya Vs. State of Tamil Nadu, authorises
the Rent Controller to take judicial notice of manifold increase in rents.
39. The Church itself has three hundred to four hundred tenants in the same compound. The cross-examination of P.W.1 reveals existence of several businesses such as Real Estate, Footwear business, Watch
Company, Flower shops, Sports shops etc. Infact, the counter of the appellant also reveals existence of shops such as Footwear, watch company, flower shops, sports shops etc. According to the appellant, the neighbouring shop owners are paying muchless rent than the appellant. In this regard, the appellant cited certain examples such as, M.S.Footwear,
Deccan Watch Company, Abdul Sattar Flower shop, Prime Sports and Star
Watch Company.
40.When the figures provided by the appellant in the counter are examined, it is seen that M.S.Footwear is paying Rs.780/- for 128 sq.feet (Rs.6.09 per sft.), Deccan Watch Company is paying Rs.760/- for 118 sft (Rs.6.61 per sft.), Abdul Sattar Flower Shop is paying Rs.900/- for 110 sft 26
RCA.No. 15 of 2017 (Rs.8.2 per sft.), Prime Sports is paying Rs.760/- for 112 sq.ft (Rs.6.78 per sft) and Star Watch Company is paying Rs.780/- for 128 sft (Rs.6.09 per sft.). These details provided by the appellant in his counter contradict his own claim that the neighbouring shop owners are paying much less rent as compared to the appellant, since the appellant is paying Rs.700/- for 789 sq.feet (Rs.1.12 per sft). All the appellant’s neighbours are paying more than double the rent paid by the appellant per sq.feet. Such being the case, taking judicial notice of the nature of locality, usage and fixation of fair rent almost after a period of 16 years at Rs.10/- per sq.feet is just and reasonable. As such, this court is of the opinion that there is no infirmity in the order of the learned Rent Controller to warrant any interference. As such, the appeal is devoid of merits and liable to be dismissed.
Point No.2
In the result, the appeal is dismissed confirming the order of the learned Principal Rent Controller, City Small Causes Court,
Secunderabad in R.C.No.44/2014 dated 22-12-2016. There shall be no order as to costs.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open Court on this day the 6th April, 2021.
ADDITIONAL CHIEF JUDGE (FAC)
CITY SMALL CAUSES COURT
HYDERABAD.