@JUDGMENTTAG-ORDER
T.Ch. Surya Rao, J.@mdashInasmuch as these two civil revision petitions emanate from a common judgment dated 17-1-2004 passed by the
learned Senior Civil Judge, Nizamabad, in R.C.A. No. 4 of 1999, they can be disposed of together.
2. Civil Revision Petition No. 4261 of 2006 was filed by the tenant-petitioner assailing the concurrent findings of both the Courts below that he
committed wilful default in paying the rents.
3. Civil Revision Petition No. 5347 of 2004 was filed by the landlords assailing the finding given by the learned Senior Civil Judge inter alia
in his order that the premises in question is a building coming within the definition of ''building'' as given under the Act in question.
4. R.C. No. 20 of 1991 was filed by the landlords seeking eviction of the tenant. His case was that the premises in question consisting of
Khandsari Sugar Mill, three large sized godowns, thirteen RCC constructed rooms, two chowkidar sheds along with adjacent land, all put together
bearing Municipal No. 10-7-616/16 situate at Varni - Mosra road, Nizamabad, was owned by the math and the entire area is admeasuring 19210
square yards"" and was leased out to the first respondent-tenant who had floated a company in the name and style of M/s. B. Kishan Lal
Khandasari Sugar Mill under three different lease deeds. In the first instance, an area of 11720 square yards was leased on 21-11-1959 through a
registered lease deed on a monthly rent of Rs. 150/- per month, for a period of ten years. Thereafter, the first respondent obtained another plot
admeasuring 5855 square yards through another registered lease deed dated 17-7-1962 on a monthly rent of Rs. 50/- and finally on 31-5-1969
the first respondent-tenant obtained another plot admeasuring 1634.15 square yards belonging to the math under a registered lease deed dated
31-5-1969 on a monthly rent at Rs. 250/- and the lease was continued for ten years, which expired on 31-5-1979 and the first respondent-tenant
did not vacate the demised premises even after the expiry of the lease period. That the total rent was payable at Rs. 450/- per month for the
demised premises, but since 1969, the tenant has been paying Rs. 250/- per month and thereby he committed wilful default, and the premises in
question was required bona fide for the personal occupation of the petitioners, inasmuch as it was required for performing the functions like
marriages, thread ceremonies, etc., which functions used to be conducted in the verandah of the sanctum Sanctorium of the temple constructed by
the math, and that tenant unauthorisedly (sublet) three godowns to Majdoor Bidi Karkhana owned by one Isaac Sahab three years prior to the
date of filing of the application, who in turn sublet the premises to one Shikari Bidi Karkhana and has been receiving a monthly rent of Rs. 5,000/-
and thus they rendered themselves liable for eviction. The landlords got a legal notice, dated 31-5-1991, issued to the tenant-first respondent
calling him upon to vacate the demised premises, to which, the respondents gave a false reply dated 27-2-1991 and even has gone to the extent of
mortgaging the demised premises to the State Bank of Hyderabad, branch office at Nizamabad.
5. That application was resisted by the first respondent by filing his counter. Since the first respondent died during the pendency of the application,
the other respondents brought on record as his legal heirs. The plea of the respondents was that the petitioners were not empowered to file the
application inasmuch as the properties of the math were administered by the Matadhipathi posted at Nizamabad from time to time and also they
did not receive any authorisation from the head office to prosecute such an eviction petition. The rent payable was not Rs. 450/- per month as
claimed, but under the last lease deed it was fixed at Rs. 2507- per month and therefore the tenant did not commit any default much less wilful
default. They denied the allegation of sub-lease and receiving the rent.
6. Upon the above pleadings, the Rent Controller framed as many as six points for determination as under:
(i) Whetherthe land, which was leased out to the first respondent by the petitioners'' math does come under definition of the building as per the
Rent Control Act when it is covered by superstructures?
(ii) Whether the petitioners'' math bonafidely require the demised premises for its use?
(iii) Whether the respondents'' firm is a wilful defaulter of the rents payable to the petitioners'' math?
(iv) Whether the respondents'' firm sublet its superstructures of the demised premises to others on rent?
(v) Whether the petitioners are authorised to represent the matter on behalf of Math?
(vi) To what relief?
7. At the time of enquiry, two witnesses were examined on the the side of the petitioners, besides getting Exs.A-1 to A-5 marked. One witness
was examined on the side of the respondents, besides getting Exs.B-1 to B-4 marked. Appreciating the evidence thus adduced on either side, both
oral and documentary, the learned Rent Controller was of the view that the premises in question falls squarely under the definition of ''building'' as
defined under the provisions of the Act. On point No. 2 it was held that the petitioners failed to establish the requirement of the premises bona fide.
On point No. 3 the learned Rent Controller was of the view that the tenant committed default wilfully from the date of receipt of Ex. A3 notice.
The point of sub-lease was negatived. On point No. 5 he held that the respondents has no right to question the petitioners'' claim. Eventually, as
aforesaid, he ordered eviction of the respondent from the demised premises and delivery of the property after removing the superstructures
thereon.
8. The appellate Court under the impugned judgment, after hearing either side, framed four points for determination as under:
(1) Whether the demised premises do not come within the definition of ''building'' as defined under the Rent Control Act?
(2) Whether the rent of the leased premises is Rs. 2507- per month?
(3) Whether the respondents were not entitled to file the RC?
(4) Whether the impugned order is not correct and is liable to be set aside?
9. On point No. 1 it was held that the premises in question fall within the definition of ''building'' as defined under the Act. On point No. 2 it was
held that the rent for the demised premises was Rs. 2507- per month, but not Rs. 450/- as claimed by the landlords and therefore there had been
no default. On point No. 3 it was held that the respondents were entitled to maintain the application. In view of the finding on point No. 2 the
appellate Court allowed the appeal and set aside the order of eviction. Having been aggrieved by the said judgment, as aforesaid, the landlords
filed one revision and questioning the finding that the premises in question falls squarely within the definition of ''building'', the tenant filed the other
revision.
10. Heard both the learned Counsel at length.
11. Sri Damodar Rao, learned Counsel appearing for the petitioners-landlords, seeks to contend that the premises in question squarely answers
the definition of ''building'' as enjoyed u/s 2 of the A. P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and that as can be seen
from the terms of Ex.A1 lease deed, the rent shall be paid is obviously Rs. 4507- per month, particularly having regard to the area being added
from time to time under the latter two lease deeds. There has been no controversy in between the parties as regards the other points that fall for
consideration, either before the Rent Controller or before the appellate Court.
12. Per contra, Smt. C. Jayashree Sarathy, learned senior counsel, represents that having regard to the fact that the vacant land was leased out in
the first instance, no doubt for the purpose of establishing Khandsari Sugar Mill thereon, essentially the lease was in respect of a vacant land.
Therefore, it will not answer the definition of ''building'' as enjoined u/s 2 of the Act and that the terms in Ex. A-1 lease deed are clear enough to
show that the total rent to be paid was only Rs. 250/- per month, but not Rs. 450/- as claimed and more particularly having regard to the fact that
the initial rent was at Rs. 150/-, which was enhanced to Rs. 2007- later when an additional area was added and finally to Rs. 250/- for the
additional area. In view of these competing claims, the points that arise for my determination in these revision petitions are:
(1) Whether the rent payable over the demised premises is Rs. 250/- per month as claimed by the tenant, or Rs. 450/- per month as claimed by
the landlords?
(2) Whether the premises in question is a building?
13. Point No. 1:
On the first point the learned Rent Controller was of the view that the rent to be paid by the tenant was Rs. 450/- per month and it was negatived
by the appellate court by coming to a different conclusion that it was Rs. 250/- per month, but not Rs. 450/- as claimed. Thus, two different views
have been expressed by the Rent Controller as well as the appellate Court. Apart from the oral evidence on the point, it requires to notice the
relevant terms inter alia recited in the lease deeds, Exs.A-1 and A-2. Out of three lease deeds, the second lease deed was not filed in this case and
is of no consequence, having regard to the clear terms of the first as well as the third lease deed. The first lease deed is a registered lease deed
dated 21-11-1959, marked as Ex.A-2. The third lease deed marked in this case as Ex.A-1 is obviously dated 31-5-1969. It may be mentioned
here that there has been no gainsaying about the relationship inter se between the parties and leasing out the premises in question under three
different lease deeds. Equally it is an undisputed fact that at the time when the property was first let out it was a vacant site and was let out for the
purpose of establishing a Khandsari Sugar Mill. The quantum of rent as fixed under the first lease was obviously at Rs. 150/- per month.
Admittedly, rent was fixed under the second lease at Rs. 50/- per month, although the relevant lease deed was not filed in the case. The rent was
fixed under the third lease was Rs. 250/-. The whole controversy in between the parties inter se seems to be that the rent fixed under Ex.A-1 lease
deed was in addition to the earlier rents fixed under Ex.A-2 and the other lease deed. Therefore, all three put together the rent was Rs. 450/- per
month. This controversy can be better adjudicated not by looking at the oral evidence adduced on the point but by considering the relevant recitals
in the document. The learned Rent Controller having considered Ex.A-3 notice, wherein it was claimed that the rent was Rs. 450/- per month
reached the conclusion that the quantum of rent was Rs. 450/- per month. The appellate Court has gone by the recitals mentioned in Ex.A-1.
Therefore, it is appropriate to consider the Ex. A-1 lease deed in the first instance.
14. The relevant recitals mentioned in the document read as under:
Whereas as per the above said lease deeds, the lessee is entitled to continue the leases for a further period of ten years. It is mutually agreed
between the parties that the lessee should pay the rent at the rate of Rs. 2507- per month for the land leased out, which is described in the plan
attached herewith, which is reasonable, having regard to the present circumstances.
In furtherance of the above agreement, the lessor gives and the lessee obtains the lease of the above said land for a period of 10 years beginning
from this day, on a monthly rent of Rs. 2507-.
15. A perusal of the above excerpted portion of the lease deed shows that the term of the lease was fixed at ten years afresh notwithstanding the
terms stipulated under the earlier two lease deeds. It is further obvious that initially an area of 11720 square yards was let out at the rate of RS.
150/- per month as rent. In addition thereto, another area admeasuring 5865 square yards was let out under the second lease deed at the rate of
Rs. 50/- per month. Now, under the Ex.A-1 third lease, 1634.15 square yards was let out for Rs. 250/- per month as rent. Under Ex.A-1 it has
been clearly mentioned that the demised premises has been described in the plan attached to the lease deed, thereby making the plan as part of the
document. It is, therefore, clear that the property, as shown in the plan attached to the lease deed, is the demised premises. A perusal of the plan
shows that the property that is covered by the document is the whole property but not a part admeasuring 1634.15 square yards. Although, that
part of the area was an additional area let out, no doubt, under the document, apart from the area let out earlier under two different lease deeds, a
perusal of the plan attached to the document leaves no room for any doubt that the demised premises under the document is the whole area but not
a part of the area admeasuring 1634.15 square yards. The quantum of rent as fixed under the document is admittedly Rs. 250/- per month. Had it
been a case where the property covered by Ex.A-1, which is the subject matter of lease under that document, is limited to the extent of 1634.15
square yards, there would have been some force in the contention of the learned Counsel for the landlord that the quantum of rent at Rs. 250/-
fixed under the said document is obviously apart from the other two amounts as fixed under Ex.A-2 and the second lease deed. Probabilities have
no place in this regard and one has to go only by the recitals made specifically in the documents. In other words, it involves the process of
interpretation of the terms of the document and it eludes adduction of any oral evidence in that regard. Going by the specific recitals as mentioned
under Ex. A-1, I am of the considered view that the lease under the said document being the entire premises as shown in the plan attached thereto,
the rent fixed is obviously in respect of the whole property, but not in addition to the quanta as mentioned under the earlier two lease deeds.
Therefore, the view expressed by the appellate Court in this regard is obviously in accordance with the terms covered by Ex.A-1 lease deed and
shall have to be, for the above reasons, upheld. Once the quantum is arrived at, there can be no difficulty in reaching the conclusion, as to whether
it is a case of default or not. When the document speaks for itself, by issuing Ex.A-3 notice, the landlords cannot alter the situation to the detriment
to the tenant and ask the tenant to pay at higher rate than what has been ultimately envisaged by the deed. Therefore, the conclusion reached by
the Rent Controller having regard to Ex.A-3 notice appears obviously to be erroneous.
16. For the above reasons, I am of the considered view that the quantum of rent as fixed under Ex.A-1 document covers the whole premises and it
is at Rs. 250/- per month. Therefore, there is no default, much less wilful default.
17. Point No. 2:
As discussed hereinabove, a vacant garden land had been let out under the first document for the purpose of establishing a Khandsari Sugar Mill.
At the time of the first lease, there had been no premises whatsoever existing on the land in question, more particularly, having regard to the fact
that the very lease was for establishing a Khandsari Sugar Mill. Much reliance has been placed upon a Bench judgment of this Court rendered in
Shahnavaz Begum and two others being minors by Guardian Ekbalunnisa Begum Vs. Potina Srinivasa Rao, to reach the conclusion that the
demised premises in question answers squarely the definition of ''building''. That was a case where according to the matrix peculiar to it a lease was
in respect of a vacant site with some superstructure belonging to the lease; the object of the lease was to run a cinema theatre. Having regard to the
provisions contained in Sections 2 (1) and 2 (4) of the Madras Buildings (Lease and Rent Control) Act, 25 of 1949, this Court was of the view
that the land forms integral part of the superstructure and therefore it was a building. As per the matrix in that case a vacant site admeasuring 1060
square yards situate in the heart of Vijayawada town was leased put for the purpose of erecting a theatre on the site. It was provided under the
lease that after the expiry of the lease, theatre shall be dismantled and vacant site should be delivered to the lessor. Yet another term recited in the
document was that the brick walls constructed by the lessee a few months before the lease started, with the permission of the lessors, should be
relinquished in favour of the lessors. The initial lease was in the year 1922. For some time in the year 1929 the respondent purchased the
superstructure erected by the original lessee and obtained a lease afresh from the landlord. One, Khayum Saheb, became the predecessor of the
property on 8-7-1930 and there was another lease for a period of ten years, which was marked as Ex.B-1 in that case. Having regard to these
facts and considering the definition of ''building'' as enjoined u/s 2(1) and 2 (4) of the Madras Act 25 of 1949, the Bench of this Court was of the
clear view that the demised premises fall squarely within the definition of building. From the matrix, it is obvious that what was let out was not pure
vacant site, but a vacant site having a structure erected with brick walls initially earlier to the lease, of course, with the permission of the lessor. The
later leases were obviously in between the original owner and subsequent purchasers of the second theatre erected by the first lessee. Thus,
obviously, the ultimate lease under Ex.A-1 was not a vacant site, but a site whereon a cinema hall was in existence.
18. The learned Counsel seeks to place reliance upon a judgment of the Madras High Court in Thangakani Ammal v. A.K.A. Kaja Mohideen
1978 (2) RCR 581 (Madras). Obviously, that was a case rendered under the provisions of the Madras Act 18 of 1950 as amended by Act 23 of
1973. The subject matter of the lease was obviously a site with walls without any roofing. The tenant made suitable alterations to the existing
structure, covered it with roofing and made the property suitable for occupation for non-residential purpose for which they took the property on
lease. Under such circumstances, it was held that the demised premises in question in that case was a building. Both the judgments sought to be
relied upon by the learned Counsel are different from the matrix of this case.
19. Obviously, in the instant case, the lease was of a garden land, which was vacant and the establishment of Khandsari Sugar Mill was subsequent
to the said lease. The demised premises in the instant case since situate in Nizamabad town, the relevant Act that applies to the present case is the
Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. The definition given in the Act as can be seen from Section 2 (b) is in respect
of house and it reads as under:
House means any building or hut or part of a building or hut, let or to be let separately for residential or nonresidential purpose and it includes-
20. We have to see the definition of ''building'' as given under the present Act of 1960 in juxtaposition to the definition of house in the earlier
Hyderabad Act, and it reads as under:
Section 2 (iii): ""building'' means any house or hut or part of a house or hut, let or to be let separately for residential or non-residential purpose and
includes-
21. In the earlier Hyderabad Act, the expression ''house'' was sought to be defined, whereas under the A.P. Act the expression ''building'' was
sought to be defined. No doubt, according to both the definitions, house includes building and building includes house. But, the difference of these
two provisions cannot be lost sight of.
22. Smt. C. Jayashree Sarathy, learned Counsel, seeks to rely upon the judgment of the Apex Court in Koti Saroj Anamma and another Vs.
Jonnalagada Malleswara Rao, , the judgment rendered under the provisions of the A.P. Act (15 of 1960). As can be seen from the facts in the
said case the property that was subject matter of lease was saw mill machinery and land consisting of approximately 10000 square yards. Saw mill
machinery was covered by a zinc sheet to protect the machinery. Having regard to the same, the Apex Court was of the view that the lease was
essentially a lease of the saw mill machinery, but it was not a case of lease of a house or a hut. The property, which is the subject matter of lease,
was described as under:
The property mentioned in the schedule annexed consists of vacant site, zinc sheet shed and machinery belonging to the first plaintiff herein...
23. Coming to the facts in the instant case the lease was for the purpose of establishing Khandsari Sugar Mill. Construction of other
superstructures apart from the original premises in which the plant was located was far subsequent to the lease. The decision of the Apex Court,
therefore, squarely applies to the facts in the instant case.
24. Yet another judgment sought to be relied upon by the learned Counsel is a single Judge judgment of this Court rendered in Nandam
Mohanamma and Others Vs. Markonda Narasimha Rao and Another, . The property that was subject matter of demise was 149 square yards of
open land along with a shed existing thereon. This Court was of the view that the improvised shed as described in the plaint as well as in oral
evidence which was put up by the tenant later on when the lease was obviously in respect of only vacant piece of land, the premises could not
answer squarely the definition of ''building''.
25. The judgment of the Apex Court referred to hereinabove or the earlier Bench judgment of this Court relied upon by the learned Counsel for
the landlords have not been referred to in the said judgment. Since, admittedly the initial lease was in respect of a vacant garden land, whereat the
superstructures appear, I am of the clear view that the judgment of the Apex Court as well as this Court rendered by a learned single Judge clearly
apply to the facts. Therefore, the demised premises cannot, in my considered view, come within the definition of ''building'' enjoined either under
the provisions of Hyderabad Act or under the provisions of the A.P. Act, 1960.
26. At this juncture, Sri Damodar Rao, learned Counsel appearing for the landlords raises the contention that the revision petition filed against the
order, dated 17-1-2004, rendered by appellate Court cannot be maintained, particularly when a finding in regard to the question as to whether the
demised premises is a building was concurrently reached by both the Courts and therefore the revision is not maintainable, as could be seen from
Section 22 of the Act of 1960.
Section 22 reads as under:
The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or
proceeding taken under this Act by the Controller in execution u/s 15 or by the appellate authority on appeal u/s 20, for the purpose of satisfying
itself as to the legality, regularity or propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit.
27. The remedy of revision envisaged u/s 22 is obviously qua the order passed or proceedings taken under the Act by the Rent Controller in
execution u/s 15. No revision is envisaged as against a finding given by the Rent Controller while eventually disposing of the main application in
either way. No cross-objections have been envisaged under the Act unlike in the case of Order 41 Rule 22 of the Code of Civil Procedure, in the
case of an appeal. The contention though appears to be appealing, but the matter seems to be no more res integra. A learned single Judge of this
Court in Sri Saibaba Cloth Emporium, Adoni v. Kolli Sanjeevamma 1989 (3) ALT 588 : 1991 A.P.106 held that the analogy in regard to appeals
filed u/s 20 of the A.P. Buildings (Lease, Rent and Evicition) Control Act insofar as maintenance of cross-objections in such appeals is concerned
can be extended to revisions filed u/s 22 of the Act for purposes of holding that cross-objections in such revisions are equally maintainable.
28. That finding is binding upon this Court unless, it is set aside by any Bench of this Court or distinguishable on facts. I am of the considered view
that the said judgment answers the point raised by the learned Counsel. Therefore, the contention that the cross-revision filed by the tenant
questioning the concurrent finding of both the for a below that the premises in question is a ''building'', for the above reasons, is maintainable.
29. For the above reasons, the Civil Revision Petition No. 4261 of 2006 shall have to be allowed and is allowed accordingly. The other revision,
Civil Revision Petition No. 5347 of 2004, having regard to the above findings, must fail and is, therefore, dismissed accordingly. However, in view
of the facts, which are peculiar, I direct both the parties to bear their respective costs.