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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.167 OF 2007

M/s Boorugu Mahadev & Sons & Anr. ……Appellant(s)

VERSUS

Sirigiri Narasing Rao & Ors. ……Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This  appeal  is  filed  against  the  final  judgment  

and  order  dated  06.09.2005  of  the  High  Court  of  

Judicature,  Andhra  Pradesh  at  Hyderabad  in  Civil  

Revision Petition No. 5228 of 2002 whereby the High  

Court  allowed  the  revision  petition  filed  by  the  

respondents herein and set aside the judgment dated  

17.09.2002 passed by the Additional Chief Judge, City  

Small Causes Court, Hyderabad in R.A. No. 93 of 1998  

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and restored the judgment dated 31.12.1997 passed  

by the Principal Rent Controller Secunderabad in R.C.  

No. 165 of 1993.

2) In order to appreciate the issue involved in this  

appeal, which lies in a narrow compass, it is necessary  

to set out the relevant facts in brief infra.

3) The  premises  bearing  No.  9-3-692  to  694,  

Regimental Bazar, Secunderabad (hereinafter referred  

to  as  “suit  premises”  was  purchased  jointly  by  the  

predecessors  of  the  appellants  herein  under  a  

registered  sale  deed  dated  28.07.1904  from  Sirigiri  

Yellaiah, and others, which they sold in discharge of  

pre-existing mortgage debt to avoid court attachment  

in  O.S.  No.  178  of  1900  on  the  file  of  the  District  

Court.   Since  the  date  of  sale,  the  respondents’  

predecessors  continued  to  occupy  the  suit  premises  

and  thus  became  the  tenants  of  the  appellants’  

predecessors-in-title on a monthly rent of Rs.10/- in  

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addition  to  payment  of  property  taxes,  conservancy  

and electricity charges etc. under an agreement dated  

01.08.1904.  The said agreement was incorporated in  

a book maintained by the appellants’ predecessors in  

the regular course of business and was duly signed by  

the  respondents’  predecessors  by  way  of  rent  every  

month.  After the death of Sirigiri Vishwanadham, i.e.,  

respondents’  predecessor,  his  four  sons  became the  

tenants and continued to pay monthly rent at the rate  

of Rs.75/- besides other charges.  The respondents are  

the grand children of late Sirigiri Vishwanadham, who  

continued to occupy the suit premises as the tenants  

of the appellants.  However, the respondents stopped  

paying rent w.e.f. 01.06.1987 to the appellants.   Since  

the  rent  was  not  being  paid  in  spite  of  repeated  

requests and demands, a legal notice was sent by the  

appellants to the respondents on 22.07.1992, to which  

interim reply was sent  on 03.08.1992 followed by a  

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detailed reply on 30.08.1992 and thereafter there were  

exchange of  legal notices ensued between the parties.  

4) Since despite service of the legal notice sent by  

the appellants to the respondents demanding arrears  

of  rent,  the  respondents  failed  to  comply  with  the  

demand,  the  appellants  filed  Eviction  Petition  being  

R.C.  No.  165  of  1993  before  the  Principal  Rent  

Controller,  Secunderabad  against  the  respondents  

under  Section 10 of  the A.P.  Buildings (Lease,  Rent  

and Eviction) Control Act, 1960 (hereinafter referred to  

as “the Act”).  The eviction was sought essentially  on  

the grounds, viz., default in payment of monthly rent  

from 01.06.1987 till the time of eviction petition and  

secondly  denial  of  the  appellants’  title  to  the  suit  

premises.

5) Denying  the  allegations  made  in  the  eviction  

petition,  the  respondents  stated  that  the  sale  deed  

dated 20.07.1904 under  which the  ancestors  of  the  

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appellants  had  purchased  the  suit  premises  was  a  

mortgage  with a right  of  re-conveyance whereas  the  

respondents’ predecessors continued to be the owners  

of  the  suit  premises.   According  to  them,  the  suit  

premises was offered only as a security for borrowed  

amount and subsequently their forefathers discharged  

the  liability  of  borrowed  amount.   However,  due  to  

some reasons, the respondents’ forefathers could not  

obtain the re-conveyance of the suit premises in their  

name,  though  ownership  of  suit  premises  remained  

with the respondents’ forefathers.  It was also averred  

that for the last fifty years, there was no payment of  

rent either by them or their forefathers in respect of  

the suit  premises whereas their  forefathers paid the  

property tax etc. as the owners.  It was also averred  

that  the appellants  fabricated the  records  to  file  an  

eviction petition against the respondents.

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6) Vide order dated 31.12.1997, the Rent Controller  

dismissed the petition filed by the appellants.   

7) Challenging the  said order,  the appellants filed  

first  appeal  being  R.A.  No.  93  of  1998  before  the  

Additional  Chief  Judge,  City  Small  Causes  Court  at  

Hyderabad.   

8) By order dated 17.09.2002, the Additional Chief  

Judge,  Small  Causes  Court  allowed  the  appeal  and  

while  setting  aside  the  order  of  the  Rent  Controller  

directed the respondents to vacate and handover the  

vacant  possession  of  the  suit  premises  to  the  

appellants  within  two  months  from the  date  of  the  

judgment. It was held by the appellate Court that the  

appellants’  predecessors were the owners of  the suit  

premises on the strength of sale deed-Ex.P.7.  It was  

also held that the sale in question in relation to the  

suit  premises  between  the  parties  was  not  a  

transaction of mortgage as alleged by the respondents  

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but it was an outright sale in favour of the appellants’  

predecessors-in-title.   It  was  also  held  that  the  

respondents  failed  to  adduce  any  evidence  to  prove  

that  the  transaction  of  sale  of  suit  premises  was  a  

mortgage and the borrowed amount having been paid,  

the mortgage was redeemed.  It was also held that the  

respondents’  predecessors  were,  therefore,  in  

possession of the suit premises as tenants and later  

became the appellants’ tenants by operation of law.  It  

was also held that the respondents failed to pay the  

arrears  of  rent  from  01.06.1987  and  hence  they  

committed willful default in payment of rent rendering  

themselves liable to be evicted from the suit premises  

under the provisions of the Act.

9) Against  the  said  judgment,  the  respondents  

herein filed revision petition being C.R.P. No. 5228 of  

2002 before the High Court.   

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10) Learned  Single  Judge  of  the  High  Court,  by  

impugned  judgment  dated  06.09.2005,  allowed  the  

revision petition filed by the respondents herein and  

set aside the judgment of the Additional Chief Judge,  

Small Causes Court and restored the order of the Rent  

Controller.

11) Aggrieved by the said judgment,  the appellants  

have preferred this appeal by way of special leave.

12)  Heard  Mr.  B.  Adinarayan  Rao,  learned  senior  

counsel  for  the  appellants  and  Mr.  A.T.M.  Ranga  

Ramanujam,  learned  senior  counsel  for  the  

respondents.

13) Mr. B. Adinarayana Rao, learned senior counsel  

appearing  for  the  appellants,  while  assailing  the  

legality and correctness of the impugned order urged  

two submissions. In the first place, he submitted that  

the  High  Court  erred  in  allowing  the  respondents’  

revision petition and thereby erred in interfering in its  

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revisionary  jurisdiction by upsetting  a  well  reasoned  

findings of facts recorded by the first appellate Court  

in favour of the appellants.  He further submitted that  

the first appellate Court while hearing the appellants’  

appeal  was  within  its  jurisdiction  to  probe  into  all  

issues of facts and the evidence and record its finding  

de hors the findings of the Rent Controller and once  

any finding of fact was recorded by the first appellate  

Court then such finding is binding on the High Court  

while  hearing the revision against  such judgment of  

the first appellate Court. Learned counsel pointed out  

from the impugned judgment that the High Court in  

this  case  decided  the  revision  like  the  first  appeal  

without  keeping  in  mind  the  subtle  distinction  

between  the  revisionary  and  the  first  appellate  

jurisdiction thereby committed a jurisdictional error in  

rendering the impugned judgment.

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14) In the second place,  learned senior counsel for  

the  appellants  submitted  that  even  otherwise,  there  

was no justification on the part of the High Court on  

facts  to  have  reversed  the  well  reasoned findings  of  

fact  recorded  by  the  first  appellate  Court  because,  

according to the learned counsel, the appellants were  

able to prove with adequate evidence adduced by them  

that firstly, they were the owners of the suit premises  

and secondly, there was a relationship of landlord and  

tenant  between  the  predecessor-in-title  of  the  

appellants and the respondents’ predecessor-in-title in  

relation to the suit premises. It was also urged that in  

the eviction petition filed  before the Rent Controller  

under the Act, the issue of title to the suit premises  

could not be gone into like a regular title suit yet the  

appellants adduced adequate evidence to prove their  

title  over  the  suit  premises  and  the  relationship  of  

landlord and tenant between the parties whereas the  

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respondents  failed  to  prove  that  the  sale  of  suit  

premises in favour of the appellants’ predecessors was  

not a sale but was a transaction of mortgage and that  

their  predecessor-in-title  redeemed  the  alleged  

mortgage by repaying the debt.  

15) In support  of  his  submissions,  learned counsel  

relied upon the decision of the Constitution Bench of  

this  Court  in  Hindustan  Petroleum  Corporation  

Limited vs. Dilbahar Singh, (2014) 9 SCC 78.

16) In contra, Mr. A.T.M. Ranga Ramanujam, learned  

senior  counsel  for  the  respondents,  supported  the  

impugned  judgment  and  prayed  for  its  upholding  

calling no interference therein.

17) Having heard learned counsel for the parties and  

on perusal of the record of the case, we find force in  

the  submissions  of  the  learned  counsel  for  the  

appellants.

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18) The Constitution Bench of this Court settled the  

law  relating  to  exercise  of  jurisdiction  of  the  High  

Court  while  deciding  revision  in  rent  matters  under  

the  Rent  Control  Act  in  the  case  of  Hindustan  

Petroleum  Corporation  Limited  (supra).  Justice  

R.M. Lodha the learned Chief Justice  speaking for the  

Bench held in para 43 thus:

“43. We hold, as we must, that none of the  above  Rent  Control  Acts  entitles  the  High  Court  to interfere with the findings of  fact  recorded  by  the  first  appellate  court/first  appellate authority because on reappreciation  of the evidence, its view is different from the  court/authority below. The consideration or  examination  of  the  evidence  by  the  High  Court  in  revisional  jurisdiction  under  these  Acts is confined to find out that finding of  facts recorded by the court/authority below  is according to law and does not suffer from  any error of law. A finding of fact recorded by  court/authority  below,  if  perverse  or  has  been arrived at without consideration of the  material evidence or such finding is based on  no evidence or misreading of the evidence or  is grossly erroneous that, if allowed to stand,  it would result in gross miscarriage of justice,  is open to correction because it is not treated  as a finding according to law. In that event,  the High Court  in exercise of  its  revisional  jurisdiction  under  the  above  Rent  Control  Acts  shall  be  entitled  to  set  aside  the  impugned order as being not legal or proper.  The High Court is entitled to satisfy itself as  

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to the correctness or legality or propriety of  any decision or order impugned before it as  indicated above. However, to satisfy itself to  the  regularity,  correctness,  legality  or  propriety  of  the  impugned  decision  or  the  order,  the High Court shall  not exercise its  power as an appellate power to reappreciate  or  reassess  the  evidence  for  coming  to  a  different finding on facts. Revisional power is  not and cannot be equated with the power of  reconsideration of all  questions of fact as a  court of first appeal. Where the High Court is  required to be satisfied that the decision is  according to law, it may examine whether the  order  impugned  before  it  suffers  from  procedural illegality or irregularity.”

19) It is also now a settled principle of law that the  

concept  of  ownership  in  a  landlord-tenant  litigation  

governed by Rent control laws has to be distinguished  

from the  one in  a  title  suit.  Indeed,  ownership  is  a  

relative  term,  the  import  whereof  depends  on  the  

context in which it is used. In rent control legislation,  

the  landlord  can  be  said  to  be  the  owner  if  he  is  

entitled in his own legal right, as distinguished from  

for and on behalf of someone else to evict the tenant  

and then to retain control, hold and use the premises  

for himself.  What may suffice and hold good as proof  

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of  ownership  in  landlord-tenant  litigation  probably  

may or may not be enough to successfully sustain a  

claim for ownership in a title suit. (vide Sheela & Ors.  

vs. Firm Prahlad Rai Prem Prakash,  (2002) 3 SCC  

375).

20) Coming now to the facts of this case, keeping in  

view  the  principle  of  law  laid  down  in  the  

aforementioned two cases and on perusal of the order  

of  the  first  appellate  Court,  we  find  that  the  first  

appellate  Court  properly  appreciated  the  facts  and  

evidence  adduced  by  the  parties  and  on  that  basis  

recorded  all  necessary  findings  (detailed  above)  in  

favour  of  the  appellants.   This  the  appellate  Court  

could do and, in our opinion, rightly did in the facts of  

this case.

21) Likewise,  when we peruse the impugned order,  

we find, as rightly urged by the learned counsel for the  

appellants, that the High Court did not keep in mind  

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the  aforesaid  principle  of  law  laid  down  by  the  

Constitution  Bench  in  the  case  of  Hindustan  

Petroleum Corporation  Ltd.  (supra)  while  deciding  

the  revision  petition  and  proceeded  to  decide  the  

revision  petition  like  the  first  appellate  Court.  The  

High Court as is clear from the judgment probed in all  

the  factual  aspects  of  the  case,  undertook  the  

appreciation of whole evidence and then reversed all  

the factual findings of the appellate Court and restored  

the order of the Rent Controller. This, in our view, was  

a jurisdictional error, which the High Court committed  

while  deciding  the  revision  petition  and  hence  it  

deserves  to  be  corrected  in  this  appeal.   In  other  

words, the High Court should have confined its inquiry  

to examine as to whether any jurisdictional error was  

committed by the first appellate Court while deciding  

the first appeal.  It was, however, not done and hence  

interference in this appeal is called for.   

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22)  That apart, we find that the appellants were able  

to prove their ownership through their predecessor-in-

title on the strength of sale deed (Ex-P.6/7) of the suit  

premises whereas the respondents failed to prove their  

defence.  Indeed,  the  burden  being  on  them,  it  was  

necessary for the respondents to prove that the sale in  

favour  of  the  appellants’  predecessor-in-title  of  suit  

premises was a  transaction of  mortgage and not  an  

outright sale.  Since the respondents did not adduce  

any  documentary  or  oral  evidence  to  prove  their  

defence,  the  first  appellate  Court  was  justified  in  

allowing  the  eviction  petition.   In  our  view,  the  

evidence adduced by the appellants to prove their title  

over  the  suit  premises  was  sufficient  to  maintain  

eviction petition against the respondents and it was,  

therefore, rightly accepted by the first appellate Court.  

23) As  observed  supra,  the  first  appellate  Court  

having  recorded  categorical  findings  that  the  

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relationship  of  landlord-tenant  was  proved  and  

secondly,  the  respondents  had  committed  a  willful  

default  in  payment  of  monthly  rent  and  its  arrears  

from 01.06.1987, these findings were binding on the  

High Court while deciding the revision petition. It was  

more so when these findings did not suffer with any  

jurisdictional  error  which  alone  would  have  entitled  

the High Court to interfere.

24) Learned  counsel  for  the  respondents  lastly  

argued that there was an encroachment made by the  

appellants on the suit premises and document (Ex-P-

6)  was  inadmissible  in  evidence,  hence  the  eviction  

petition  was  liable  to  be  dismissed  on  these  two  

grounds also.  These  submissions,  in  our  considered  

view, deserve to be rejected at their threshold because  

the same were not raised in the written statement filed  

by the respondents before the Rent Controller and nor  

were urged at any stage of the proceedings. We cannot,  

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therefore, allow such factual submissions to be raised  

for the first time in this appeal.

25) In the  light  of  foregoing  discussion,  the  appeal  

succeeds  and  is  hereby  allowed.  The  impugned  

judgment is set aside and that of the judgment of the  

first appellate Court dated 17.09.2002 in R.A. No. 93  

of  1998  is  restored.  As  a  consequence  thereof,  the  

eviction  petition  filed  by  the  appellants  against  the  

respondents in relation to the suit premises is allowed.  

The respondents are, however, granted three months’  

time to vacate the suit premises from the date of this  

order subject to furnishing of the usual undertaking in  

this Court to vacate the suit premises within 3 months  

and further the respondents would deposit all arrears  

of  rent till  date at the same rate at which they had  

been paying monthly rent to the appellants (if  there  

are arrears) and would also deposit three months’ rent  

in advance by way of damages for use and occupation  

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as  permitted  by  this  Court.   Let  the  undertaking,  

arrears  of  rent,  damages for  three months  and cost  

awarded by  this  Court  be  deposited  within  15 days  

from the date of this order.  

26) The appeal is accordingly allowed with cost which  

quantify at Rs.5000/- to be paid by the respondents to  

the appellants.   

                                    .……...................................J.                     [J. CHELAMESWAR]

                                     ………..................................J.                      [ABHAY MANOHAR SAPRE]

New Delhi, January 18, 2016.

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