GOPI @ GOVERDHANNATH (D) BY LRS. & ORS. versus SRI BALLABH VYAS on 22 September 2022

GOPI @ GOVERDHANNATH (D) BY LRS. & ORS.

v.

SRI BALLABH VYAS

(Civil Appeal No. 6827 of 2022)

SEPTEMBER 22, 2022

[INDIRA BANERJEE AND C. T. RAVIKUMAR, JJ.]

Andhra Pradesh Buildings (Lease, Rent and Eviction) ControlAct, 1960: s. 10(2)(i), 10(2)(vi) and 10(3)(a) – Eviction of tenant –Original owner of the property leased out the property to thepredecessor in interest of the appellants and they were paying rentto the owner – Case of the respondent that his father had purchasedthe said property vide registered sale deed – Respondent filed petitionfor eviction of tenant-appellant no. 2 and 3 and others from shopon the ground of non-payment/default in payment of rent, tenant’sdenial of the title of the landlord not being bona fide, and landlord’sright to be put in the possession of property for his own businessuse – Appellants denied the title of the respondent as also claimedtitle over the schedule property contending that they purchased thesame from the original owner – However, the tenant directed tovacate the schedule property – Said order upheld by the appellateauthority and the High Court – Interference with – Held: Not calledfor – When the respondent, as landlord, claimed eviction on theground of tenants’ denial of his title over the petition scheduleproperty and to establish such denial as not being bonafideproduced its registered sale deed, the appellants and theirpredecessors-in-interest could not justify the denial merely byasserting that their predecessor-in-interest, had purchased it for avalid consideration, without producing any supporting material(s)admissible in evidence – In respect of the sale of an immovableproperty, worth value which makes the sale deed compulsorilyregistrable, the genuineness of the denial of title cannot be decidedbased on presumptions and oral assertations ignoring a validregistered document – Concurrent findings of the courts below thatthe title of the respondent was malafidely denied by the appellantsis the rightful conclusion on appreciation of the facts and evidenceobtained in this case – Nothing that would establish non-consideration of any material or consideration of irrelevant material,

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Ato arrive at the finding that the requirement to get vacant possessionof the petition schedule property of the respondent is malafide – Inview thereof, no reason to hold that such findings are infected withperversity or manifest injustice.

Dismissing the appeal, the CourtB

HELD: 1.1 When the respondent, as landlord, claimedeviction on the ground of tenants’ denial of his title over thepetition schedule property and to establish such denial as notbeing bonafide produced its registered sale deed, the appellantsand their predecessors—in-interest could not justify the denialCmerely by asserting that their predecessor-in-interest, hadpurchased it for a valid consideration of Rs.15,000/- in the year1985, without producing any supporting material(s) admissiblein evidence. This is because in respect of the sale of animmovable property, worth value which makes the sale deedcompulsorily registrable, the genuineness of the denial of titleDcannot be decided based on presumptions and oral assertationsignoring a valid registered document. Section 9 of the Transferof the Property Act states that a transfer of property can be madewithout writing in every case in which writing is not expresslyrequired by law. But then, as per Section 54 of the TP Act, theEsale of immovable property of a value of Rupees one hundredand upwards can be made only under a registered instrument.Section 17 of the Indian Registration Act, 1908 speaks ofdocuments of which registration is compulsory. As per Clause(b) of sub-Section (1) thereof non-testamentary instruments whichof the value of one hundred rupees and upwards, to or inFimmovable property, shall be compulsorily registered. [Para 18,19][436-E-H; 437-E-F]

1.2 The oral evidence adduced by the respondent is to theeffect that his father had purchased the petition schedule propertyvide registered sale deed dated 27.06.1985. Per contra, on behalfGof the appellants what is pleaded and argued is that the petitionschedule property was purchased by their predecessors-in-interest, from the very same vendor in the year 1985, for a validconsideration of Rs. 15,000/-. It is in this context that the saledeed would act as a sure and clear pointer to where the truthHlies. The indisputable and undisputed fact is that except the oral assertation of purchase of the petition schedule property by Bnot even a scrap of paper to support the same was produced onbehalf of the appellants, either before the Rent Controller orbefore the Appellate Authority. [Para 20 & 22][438-A-B, G-H]

1.3 The institution and dismissal of the said original suitbrought out in evidence was considered by the Rent ControllerCourt only to answer the point as to whether the respondent wasmalafidely denying the title of the respondent herein/the petitionertherein. After such consideration based on the oral anddocumentary evidence before it, the Rent Controller came tothe conclusion that the respondents therein were denying thetitle of the respondent herein malafidely. [Para 22][439-F]

1.4 The Appellate Authority in taking into account thefactum of raising the plea of adverse possession by the appellantsand/or their predecessors-in-interest for the limited purpose oflooking into the question of mala fides in the denial of title of therespondent herein over the petition schedule property. Indeed,it was so noted to support and sustain the finding of the rentcontroller that the tenants were denying the title of therespondent without bona fides. The concurrent findings of thecourts below on the issue that the title of the respondent wasmalafidely denied by the appellants is the rightful conclusion onappreciation of the facts and evidence obtained in this case andis not infected with perversity. It calls for no interference. Nothingwas brought to the attention that would establish non-considerationof any material or consideration of irrelevant material, to arriveat the finding that the requirement to get vacant possession ofthe petition schedule property of the respondent is malafide. Inshort, on a careful scanning of the concurrent findings on all issues,there is no reason to hold that such findings are infected withperversity or manifest injustice. [Para 25, 26, 28][441-F-G; 442-D; 443-F]

1.5 Though, the appellants, by virtue of their denial of titleof the respondent do not really deserve grant of time to vacatethe petition schedule property, two months’ time is granted from AB

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Athe date of the judgment to the appellants to handover vacantpossession of the petition schedule property to the respondent,in the interest of justice. [Para 29][443-G-H]

Kurapati Venkata Mallayyaand Anr. v. ThondepuRamaswami And Co. & Anr. AIR 1964 SC 818 : [1963]BSuppl. SCR 995; Mohanlal Sohanlal v. PannalalJankidas AIR 1948 Bom 133; Lachhman Dass v. RamLal & Anr. (1989) 3 SCC 99 : [1989] 2 SCR 250;Narasamma & Ors. v. A. Krishnappa (Dead) Thr. LRs(2020) 15 SCC 218 : [2020] 7 SCR 528; C. AbdulCShukoor v. Arji Papa Rao AIR 1963 SC 1150 : [1963]Suppl. SCR 55 – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6827of 2022.

From the Judgment and Order dated 10.07.2018 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofFAndhra Pradesh in Civil Revision Petition No. 2752 of 2018.

Abhijit Basu, B. Suyodhan, Ms. Tatini Basu, Advs. for theAppellants.

K. Parameshwar, G. Seshagiri Rao, Ms. A. Sregurupriya, Advs.Gfor the Respondent.

The Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

1. Leave granted.

2. In this appeal by Special Leave the appellants assail thejudgment and order dated 10.07.2018 in Civil Revision Petition No. 2752of 2018 of the High Court of Judicature at Hyderabad for the State ofTelangana and the State of Andhra Pradesh. It arises out of R.C. No.262 of 2008 brought by the respondent herein under Section 10(2)(i),10(2)(vi) and 10(3)(a) of the Andhra Pradesh Buildings (Lease, Rentand Eviction) Control Act, 1960 (for short “the Act”), for the eviction ofappellant Nos. 2 & 3 herein and the other respondents therein, who areall the successors-in-interest of the original tenant Shri Balraj, being hiswife and children, from the petition schedule property. The petitionschedule property is a Mulgi (small shop), admeasuring 29 square yards,abutting main road of Mangalhat, Hyderabad. They were sought to beevicted on three-fold grounds viz., non-payment/default in payment ofrent, [(S.10(2)(i)], tenant’s denial of the title of the landlord not beingbonafide [(S.10(2)(vi)] and landlord’s right to be put in the possessionof property for his own business use [(S.10(3)(a)].

3. As per the order in R.C. No.262 of 2008 dated 07.11.2015, itwas allowed and the respondents therein were directed to vacate thepetition schedule property and to handover its vacant physical possessionto the petitioner therein (the respondent herein) within 3 months fromthe date of the order. The unsuccessful respondents therein took up thematter before the Appellate Authority, viz., Court of Chief Judge, CitySmall Causes Court at Hyderabad, as Rent Appeal No.57 of 2016. TheAppellate Authority considered the grounds of attack and found themmeritless and consequently, dismissed the appeal. It is aggrieved by thesame that the stated Civil Revision Petition was filed before the HighCourt, which ultimately culminated in the impugned judgment.

4. As a matter of fact, pending the proceedings before the rentcontroller, the wife and two sons of Late Balraj, who were also arrayedas respondents along with the appellant Nos.2 and 3 herein, died. Later,during the pendency of the present SLP the original petitioner No.1, theother son of Late Balraj also died and subsequently, his legal heirs werebrought on record as petitioner Nos. 1.1 and 1.2. The proformarespondents viz., respondents 2 to 4 were deleted from the array of A

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Aparties, at the instance of the appellants, as per order dated 11.10.2015passed in I.A. No. 147594 of 2018. Thus, the present proceedings arebeing pressed into and pursued by the original petitioner Nos. 2 & 3 andthe other petitioner Nos.1.1 and 1.2, who are the legal heirs of originalpetitioner No.1, in the present SLP. Hence, hereinafter, in this appealthey would be referred to as ‘the appellants’ and the petitioner in R.C.BNo.262 of 2008, who is the respondent in this appeal, would be referredto as ‘the respondent’, unless otherwise mentioned specifically.

5. Succinctly stated the case of the respondent (the petitioner inRC No. 262 of 2008) is as follows: -

CThe petition schedule property is a small shop (Mulgi) bearingMunicipal D. No. 14-1-22 as described hereinbefore. One Smt. PhoolKumari was its owner. She was the original landlord and late Shri BhandariBalraj (the predecessor-in-interest of the appellants) was the tenant, ofthe said shop. In the year 1985, the father of the respondent by nameVasudev Vyas purchased the petition schedule property from theDaforesaid Smt. Phool Kumari in the name of the respondent BallabhVyas, then a minor aged 10 years, under Ex.P-3 registered sale deeddated 27.06.1985. The pre-existing tenancy created between late Sh.Balraj and the said original landlord was oral in nature and the rent initiallyfixed was enhanced from time to time. On 27.06.1985 itself Ext. P-1Erental deed was executed between Late Sh. Balraj and the respondent,represented by his natural father and guardian Vasudev Vyas, on a monthlyrent of Rs.300/-per month exclusive of municipal property tax andelectricity charges. It was enhanced from time to time and finally fixedat Rs. 2,000/-. The original tenant Shri Balraj died on 15.05.1996 andthereafter the tenancy was being continued by his wife and children andFthe original respondent No.1 was paying rent initially. But, they failed topay rent from May, 2006 to April, 2008. Prior to the filing of R.C. No.262of 2008, the respondent issued Ex.P-4 legal notice dated 30.05.2008requesting the tenants to pay the arrears of rent and to vacate andhandover vacant possession of the petition schedule property. It wasGalso stated therein that he is unemployed and requires the petition scheduleproperty for running his own business. On its receipt, the respondentstherein caused Ex. P-5 reply disputing the very title of the petitionertherein (respondent herein) over the petition schedule property. It isthereafter R.C. No. 262 of 2008 was filed.

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6. Obviously, the stated R.C. was defended on a number ofgrounds by the respondents therein viz., appellant Nos. 2 & 3 herein andthe predecessors-in-interest of the other appellants herein, inter alia,contending that they are the owners of the petition schedule property.As a matter of fact, they have not only denied the title of the respondentover it but also claimed its title contending that late Shri Balraj hadpurchased the petition schedule property as per a sale deed executed inthe year 1985. The case put forth on their behalf before the rent controllerwas that one Phool Kumari was the original owner of the petition scheduleproperty (Mulgi) and she had leased it out to Shri Balraj, he had been thetenant from 1960 to 1985 and then, Phool Kumari offered to sell it to himand late Shri Balraj purchased the same for a valid consideration in theyear 1985.

7. The further contentions of the respondents in R.C. No. 262 of2008 viz., the appellant Nos. 2 & 3 herein and the predecessors-in-interest of the other appellants were as follows: -

“That late Shri Balraj obtained Rs.15,000/- from VasudevVyas, the father of the respondent, as loan for paying saleconsideration to Phool Kumari, that the father of therespondent put forth a condition for payment of loan andaccordingly, on his insistence sale deed was registered in thename of the respondent as security, though late Shri Balrajhad subsequently repaid the loan amount of Rs.15,000/- thefather of the respondent had failed to return the petitionschedule property to late Shri Balraj, and that in the year2003 the said Mulgi was dismantled and it was renovatedand therefore, in view of Section 32 (b) of the Act its provisionsare inapplicable. Raising all such contentions the Rent ControlPetition was sought to be dismissed. However, as noticedhereinbefore, the Rent Controller allowed R.C.No.262 of2008. The appeal preferred before the Court of Chief Judge,City Small Causes Court at Hyderabad as Rent Appeal No.57/2016 was dismissed and the Revision filed against the same,viz., Civil Revision Petition No.2752 of 2018 was then,dismissed by the High Court as per the impugned judgment.”

8. On 11.10.2018, this Court issued notice and ordered that thestatus quo, as on that date be maintained. As per the order dated12.1.2022, it was ordered thus:

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A“Needless to mention that it will be open to the respondentlandlord to urge of questions including the dis-entitlement ofthe heirs to claim any tenancy interest in the property inquestion.”

9. Heard Mr. Abhijit Basu, learned counsel for the appellants andBalso Mr. K. Parameshwar, learned counsel for the respondent. Virtually,the learned counsel for the parties reiterated the contentions raised beforethe Courts below with some additional points. We will refer to the rivalcontentions, a little later after looking into the real scope of considerationof the instant appeal.

C10. There can be no doubt with respect to the scope of an appealunder Section 136 of the Constitution of India by special leave againstthe concurrent findings. In such matters, re-appreciation of evidence isnot the normal rule and the power thereunder would be sparingly exercisedwhere the findings are absolutely perverse. A finding can be said to beperverse if it is founded on no evidence to support the same or totallyDagainst the weight of evidence. So also, it can be said to be perverse ifmaterial evidence was missed out for consideration or a totally irrelevantand immaterial aspect formed the foundation for such a finding.

11. A four-Judge Bench of this Court considered the scope ofappeal under Section 136 of the Constitution by special leave, againstEthe concurrent findings in Kurapati Venkata Mallayyaand Anr. v.Thondepu Ramaswami And Co. & Anr.[1]In paragraph 9 herein it washeld:

“9. The first point urged before us by Mr. RanganadhamChetty on behalf of the appellant firm is that the High Court,Fas well as the Subordinate Judge were in error in holdingthat the bales in question had been purchased by the appellantfirm from the respondent firm. This, however, is a question offact and since the two courts below have found against theappellant firm on this point this Court would not ordinarilyGinterfere with such a finding. Mr. Ranganadham Chetty,however, contended on the authority of the decision inBibhabati Devi V. Kumar Ramendra Narayan Roy that thepractice of the court in appeals by special leave is not a castiron one and that it would, therefore, be open to this Court to H1 (AIR 1964 SC 818)

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depart from it in an appropriate case. The aforesaid decisionwas referred to by this Court in Srinivas Ram Kumar V.Mahabir Prasad and it was pointed out that when the courtsbelow have given concurrent findings on pure questions offact, this Court would not ordinarily interfere with them andreview the evidence for the third time unless there areexceptional circumstances justifying a departure from thenormal practice.”

12. We do not find any reason to make a further survey of theauthorities on the said point as the same is the view which is beingfollowed consistently.

13. Now, we will revert to the case on hand. A scanning of therival pleadings would reveal the common contention of the parties. Theywould reveal that Smt. Phool Kumari was the original owner of thepetition schedule property (Mulgi) and she had leased it out to late ShriBalraj, the predecessor-in-interest of the appellants. It is also the admittedcase of the appellants that Smt. Phool Kumari was the landlord and lateShri Balraj had been paying rent to her. The diversion in pleadings occursthereafter. According to the respondent, his father Vasudev Vyaspurchased the petition schedule property from Smt. Phool Kumari asper Ext.P3 registered sale deed dated 27.6.1985 in his name when hewas a minor aged 10 years and according to the appellants Shri Balraj,their predecessor-in-interest purchased it from Smt. Phool Kumari for avalid consideration of Rs.15,000/-, in the year 1985.

14. Evidently, the respondents in R.C. No. 262 of 2008 viz.,appellants 2 and 3 and the predecessors-in-interest of the other appellantsnot only denied the title of the respondent but also claimed the title overthe petition schedule property (Mulgi) contending that the same waspurchased from Smt. Phool Kumari by late Shri Balraj, their predecessor-in-interest in the year 1985 for a valid consideration. Late Shri Balrajobtained Rs. 15,000/- from the father of the petitioner therein (therespondent in this appeal) for effecting payment to Smt. Phool Kumariand only on the demand of the petitioner’s father, the sale deed in respectof the petition schedule property was got registered by Shri Balraj in thename of the petitioner therein (respondent in this appeal) as a security.

15. Based on the rival pleadings the Rent Controller framed thefollowing points for consideration: - AB

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A1. Whether the respondents malafidely denying the title of thepetitioner?

2. Whether this Court lacks inherent jurisdiction?

3. Whether there is jural relationship?

B4. Whether the respondents are liable for eviction from thepetition schedule property?

5. To what relief?

16. Obviously, all the points were decided in favour of the petitionertherein (the respondent herein) and accordingly, the R.C. No.262 ofC2008 was allowed. Consequently, the respondents therein were directedto vacate the petition schedule property and handover its vacant physicalpossession to the petitioner therein (the respondent herein) within threemonths from the date of the order. It is this order which was confirmedconcurrently by the Appellate Authority and the High Court.

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D17. We have carefully scanned the order of the Rent Controllerand the judgments of the Appellate Authority as also the High Court.The question is what is the perversity that invites interference with theconcurrent findings. Since notice and status quo ordered by this Courtas per order dated 11.10.2018 was followed by the order dated 12.01.2022we will consider that question in detail.E

18. We have already referred to the pleadings of the parties takenup before the Rent Controller. When the petitioner (the respondent herein),as landlord, claimed eviction on the ground of tenants’ denial of his titleover the petition schedule property and to establish such denial as notbeing bonafide produced its registered sale deed, whether the appellantsFand their predecessors—in-interest could justify the denial merely byasserting that Shri Balraj, their predecessor-in-interest, had purchased itfor a valid consideration of Rs.15,000/- in the year 1985, without producingany supporting material(s) admissible in evidence? Certainly, the answercan only be in the negative. This is because in respect of the sale of anGimmovable property, worth value which makes the sale deed compulsorilyregistrable, the genuineness of the denial of title cannot be decided basedon presumptions and oral assertations ignoring a valid registereddocument. In the aforesaid context, it is only worthwhile to refer to thedecision of the Bombay High Court in Mohanlal Sohanlal v. PannalalJankidas[2]and also Sections 9 and 54 of the Transfer of Property Act,H

1882 (hereinafter for short, ‘the TP Act’) and Section 17 of the IndianRegistration Act, 1908. In paragraph 17 of the decision in MohanlalSohanlal[2] it was held:

“In my opinion this is a case in which what was said by LordSimonds in delivering the judgment of the Judicial Committeein 49 Bom. L.R. 244 applies with equal force (P.245):

Upon this apparently simple question oral evidencevoluminous and bewildering has been given and theirLordships find themselves in agreement with Chagla J. whoin the Appeal Court said: ‘In a case where oral testimony isof such an unreliable and untrustworthy character, the safestpolicy would be to let the documents speak for themselves.’This does not mean that, when the question whether atransaction is a sale or a mortgage, form is to be preferred tosubstance. It is an inviolable rule that upon such a questionthe Court must find the substance behind the form. But wherethe oral evidence is unreliable and contradictory the Courtcannot safely depart from the smitten evidence of thedocument.”

19. Section 9 of the TP Act states that a transfer of property canbe made without writing in every case in which a writing is not expresslyrequired by law. But then, as per Section 54 of the TP Act, sale ofimmovable property of a value of Rupees one hundred and upwards canbe made only under a registered instrument. Section 17 of the IndianRegistration Act, 1908 speaks of documents of which registration iscompulsory. As per Clause (b) of sub-Section (1) thereof non-testamentary instruments which purport or operate to create, declare,assign, limit or extinguish, whether in present or future, any right, title orinterest, whether vested or contingent, of the value of one hundred rupeesand upwards, to or in immovable property, shall be compulsorily registered.In the decision in Lachhman Dass v. Ram Lal & Anr.[3] it was held thatthe real purpose of the said Section is to secure that every person dealingwith the property, where such documents require registration, may relywith confidence upon statements contained in the register as a full andcomplete account of all transactions by which title may be affected.

2 AIR 1948 Bom 133

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2 AIR 1948 Bom 133

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A20. In this case the oral evidence adduced by the respondent is tothe effect that his father had purchased the petition schedule propertyfrom Smt. Phool Kumari under Ext. P3, registered sale deed dated27.06.1985, in his name when he was aged 10 years. Per contra, onbehalf of the appellants what is pleaded and argued is that the petitionschedule property was purchased by their predecessors-in-interest, ShriBBalraj from the very same vendor viz., Smt. Phool Kumari in the year1985, for a valid consideration of Rs. 15,000/-. It is in this context thatExt. P3 would act as a sure and clear pointer to where the truth lies.

21. Evidently, the respondent herein (the petitioner in R.C. No.262 of 2008) brought on record Ext. P3, a registered sale deed executedCin his favour in respect of the petition schedule property. While consideringthe question of evidence produced on behalf of the appellants herein inthe said proceedings it is relevant to refer to the following recital fromthe order of the Rent Controller:

“On careful perusal of the entire record, this Tribunal could notDfind any document to show the title of the respondent over thepetition schedule property. As such this Court has to infer thatwithout any valid document, the respondents are denying theownership of the petitioner in spite of that petitioner exhibitedExt.P3 in his favour.” Obviously in the above extracted recital theEreference ‘the respondents’ was with respect to the appellants 2and 3 and the predecessors-in-interest of the other appellants inthis appeal and the reference “the petitioner” was with referenceto the respondent herein.

22. What is the evidence adduced by the respondents in R.C.FNo.262 of 2008 to deny the title of the petitioner therein (the respondent)?Juxtaposed with Ext. P3 sale deed, whether the oral assertation ofappellants 2 and 3 and the predecessors-in-interest of appellants 1.1 and1.2 would be sufficient to outweigh Ext. P3 in the matter of considerationof their bonafides behind denial of the title of the respondent? Theindisputable and undisputed fact is that except the oral assertation ofGpurchase of the petition schedule property by Shri Balraj not even ascrap of paper to support the same was produced on behalf of theappellants, either before the Rent Controller or before the AppellateAuthority. In this context, it is relevant to refer to the oral testimony oflate Bhandari Goverdhan Nath, who was the first respondent in R.C.HNo.262 of 2008 and the original first petitioner in the SLP from which

this appeal arises. During his cross-examination as RW1 he would deposethat there was no registered sale deed in favour of his father as relatingto the petition schedule property. Taking note of the amount of‘consideration’ of the alleged sale, it is evident that transfer/conveyanceof the said immovable property could have been effected legally andlawfully only through a registered deed of conveyance. Thus, theindisputable position obtained in this case is that the respondent herein/the petitioner therein, had adduced documentary evidence of outrightpurchase of the petition schedule property under Ext. P3 registered saledeed. On the other hand, on behalf of the respondents therein noadmissible evidence to outweigh the same to establish their bonafidesin the denial of title of the respondent herein, was adduced. It is a factthat the predecessors-in-interest of the appellants herein filed O.S.No.1210of 2008 before the Court of Senior Civil Judge, Hyderabad and the saidfact and also the factum of its dismissal as per Ext.R3 was brought outin evidence by RW1 as well, while being in his examination-in-chief. Infact, the petitioner therein/respondent herein has brought on record thejudgment in O.S. No.1210 of 2008, which document was brought on theside of the appellants also as Ext.R3, and the decree passed thereon asExts.P7 and P8. Obviously, RW1 then deposed that as against Ext.R3an appeal was preferred as A.S. No.123 of 2014 and it is pending on thefiles of the Court of Additional Chief Judge, City Civil Court, Hyderabad.It is not inappropriate to state at this juncture that now in the writtensubmission filed on behalf of the appellants it is stated that the said appealwas also dismissed subsequently and in the second Appeal filed againstit notice before admission was ordered. The institution and dismissal ofthe said original suit brought out in evidence was considered by the RentController Court only to answer the point as to whether the respondentwas malafidely denying the title of the respondent herein/the petitionertherein. After such consideration based on the oral and documentaryevidence before it, the Rent Controller came to the conclusion that therespondents therein were denying the title of the respondent hereinmalafidely.

23. All these aspects were given due consideration by the AppellateAuthority as also by the High Court while considering the case of theappellants herein in their respective jurisdiction. It is to be noted thateven before this Court the appellants got no case that their predecessor-in-interest Shri Balraj purchased the petition schedule property from Smt.Phool Kumari as per a registered sale deed. In the light of the indisputable AB

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Aposition thus obtained and in view of Ext.P3, which is a registered saledeed executed in favour of the respondent herein/the petitioner thereinby none other than Smt. Phool Kumari on 27.6.1985, the denial of thetitle of the respondent herein over the petition schedule property by therespondents in R.C. No.262 of 2008 and now, by the appellants hereincan only be taken as one sans bonafide. In other words, it is malafide.B

Curiously, the respondents in R.C. No.262 of 2008 had alsocanvassed the position that ‘the Act’ is not applicable by virtue of theprovision under Section 32 (b) thereof, before the stated proceedings. Itwas so raised contending that the petition schedule property (Mulgi)was dismantled and in its place a new building was constructed. A carefulCscanning of the judgment of the Rent Control Court, the AppellateAuthority and the High Court would reveal that the tenability of the saidcontention was carefully considered and rejected.

24. It is to be noted that the Rent Controller observed that noevidence to establish the factum of dismantling of the petition scheduleDproperty was produced and proved before it. That apart, the AppellateAuthority observed that no document revealing obtainment of necessarypermission for demolition and construction of the petition scheduleproperty was brought on evidence on behalf of the appellants. Obviously,the appellants took up a contention that the petition schedule propertyEbeing a very small shop does not require any such permission. At thesame time, the fact is that they had not brought out any provision underany law in support of the said contention. Explanation 1 to Section 32 (b)of the Act would reveal that in order to hold that a building wassubstantially renovated not less than 75 per cent of the premises was tobe built new in accordance with the criteria prescribed for determiningFthe extent of renovation. No evidence to establish such requirement isavailable on record. According to us, the hollowness of the said contentionwould be revealed if a reference is made to the definition of the term“building” given under Section 2 of the Act, which is an inclusive definition.Going by its definition it takes in its fold any house or hut or part of aGhouse or hut. For the purposes of the Act when a hut or even part of ahut falls within the definition of building, in the absence of any provisionunder any law supporting the said contention of the appellants that thepetition schedule property being a small shop will not attract the provisionsof the Act, is only to be rejected. In fact, it was rightly rejected by theCourts below.H

25. Obviously, upon perusing Ext. R3 (Ext. P7) judgment theAppellate Authority has also found that on the side of the appellantsherein adverse possession was also raised in O.S. No.1210 of 2008 toestablish the claim of title. Consequently, the Appellate Authority madean observation that the claim of the title based on the sale deed and acontention based on adverse possession could not co-exist, evidently, forthe purpose of considering the question whether the denial of title of therespondent herein was made malafidely. In this context it is worthy torefer to a three-Judge Bench decision of this Court in Narasamma &Ors. v. A. Krishnappa (Dead) Thr. LRs.[4]In the said decision it is heldthat independent claim of title and adverse possession simultaneously inrespect of the same property on the same date would amount to takingcontradictory pleas. It is also held therein that when a plea of adversepossession is projected it is inherent in the nature of it that someone elseis the owner of the property and therefore the plea on the title and adversepossession are mutually inconsistent and the latter can begin to operateonly when the former is renounced. When once it is found that a plea ofadverse possession in its inherent nature projects that someone, otherthan who took up the said contention is the owner of the propertyconcerned; when it is indisputable that the case of the appellants andtheir predecessors-in-interest is that their predecessor-in-interest lateSh. Balraj had purchased the petition schedule property as per a registereddeed in the year 1985 and when it is proved before the rent controllerthat the said property was purchased in the name of the petitioner thereinviz., the respondent herein, then aged only 10 years, by his father as perExt. P3 registered sale deed dated 27.06.1985 we cannot find fault withthe Appellate Authority in taking into account the factum of raising theplea of adverse possession by the appellants and/or their predecessors-in-interest in O.S. No. 1210 of 2008 for the limited purpose of lookinginto the question of malafides in the denial of title of the respondentherein over the petition schedule property. Indeed, it was so noted tosupport and sustain the finding of the rent controller that the respondentsin R.C. No.262 of 2008 were denying the title of the respondent withoutbonafides.

26. A reference to Section 101 of the Indian Evidence Act will notbe inapposite in the context of the aforesaid contentions. Though, onbehalf of the appellants herein a consistent case, raised to resist the 4 (2020) 15 SCC 218

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Acase of the respondent herein based on Ext. P3 registered sale deed, isthat late Shri Balraj purchased the petition schedule property in the year1985 for a valid consideration of Rs.15,000/-, no documentary evidencewas produced before the Rent Control Court, before the Appellate Courtor even before the High Court. It is to be noted that no such document isproduced even before this Court. Thus, it is obvious that despite assertingBa specific fact that Shri Balraj had purchased the property as per saledeed in the year 1985 the appellants and their predecessors had failed toprove the same, though, in the light of Section 101 of the Evidence Act,the burden was upon them. The burden of proof is of importance whereby reason of not discharging the burden which was put upon him, a partyCmust eventually fail. (See the decision in C. Abdul Shukoor v. Arji PapaRao[5]).

The long and short of all aforesaid discussions is that the concurrentfindings of the courts below on the issue that the title of the respondentwas malafidely denied by the appellants is the rightful conclusion onDappreciation of the facts and evidence obtained in this case and is notinfected with perversity. It calls for no interference.

27. In the light of the finding on the issue whether the respondentsin R.C. No.262 of 2008 were malafidely denying the title of the petitionertherein over the petition schedule property, Section 109 of the TransferEof Property Act would assume relevance in regard to the right of thepetitioner in R.C. No.262 of 2008 to seek eviction of the respondentstherein, from the petition schedule property. Admittedly, the predecessor-in-interest of the appellants viz., late Shri Balraj, was the tenant in respectof the petition schedule property under its original owner Smt. PhoolKumari. A bare perusal of Section 109 of the Transfer of Property ActFwould reveal that if a landlord transfers the property leased out or anypart of it, the transferee, in the absence of any contract to the contrary,shall possess all the rights of the landlord. Hence, the impact of Ext.P3,in the absence of any contract to the contrary, is that the respondentherein has stepped into the shoes of Smt. Phool Kumari. In terms ofGSection 109 of the Transfer of Property Act it is clear that attornment bythe lessee is not necessary for the transfer of the property leased out tohim. Thus, the inevitable consequence of transfer of a leased-out propertyby the landlord in accordance with law to a third party, in the absence ofa contract to the contrary, is that the third party concerned would not only become its owner having title but also would step into the shoes ofthe vendor as the landlord in relation to the lease holder at the relevantpoint of time. In such circumstances, the findings of the courts belowthat there exists jural relationship of landlord and tenant between therespondent and the appellants can only be held as the correct and lawfulconclusion in the light of the evidence on record based on the legal position.

28. Now, we will move on to consider the next question as towhether the direction for eviction of the appellants from the petitionschedule property calls for interference on the ground of perversity infinding. The Rent Controller, the Appellate Authority and the High Courtconsidered the question whether the requirement of the respondent toget vacant possession of the petition schedule property is bonafide andacceptable as a ground for eviction. The pleadings and the evidence ofthe respondent herein as PW-1 is to the effect that he is unemployedand requires the petition schedule property for establishing his ownbusiness to eke out his livelihood. Though, the respondent herein wascross-examined nothing could be elicited to establish that his requirementfor personal occupation for the aforesaid purpose is not genuine and thatit is only a ruse for evicting the appellants. So also, nothing could beelicited to establish that the respondent possesses other vacant premisesof his own to establish his business. RW1, who was the original firstpetitioner in the SLP from which this appeal arises, while being examined-in-chief in R.C. No. 262 of 2008 would say that he did not file anydocument to show that the petitioner therein viz., the respondent hereingot other non-residential building(s) or mulgies in Feelkhana. Nothingwas brought to our attention that would establish non-consideration ofany material or consideration of irrelevant material, to arrive at the findingthat the requirement to get vacant possession of the petition scheduleproperty of the respondent is malafide. In short, on a careful scanningof the concurrent findings on all issues, as above, we find no reason tohold that such findings are infected with perversity or manifest injustice.In the said case, this appeal must fail. Accordingly, it is dismissed. Noorder as to costs.

29. Though, the appellants, by virtue of their denial of title of therespondent do not really deserve grant of time to vacate the petitionschedule property, we are inclined to grant two months’ time from thedate of the judgment to the appellants to handover vacant possession ofthe petition schedule property to the respondent, in the interest of justice.

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ATo get the benefit of the extended time thus granted, the appellants shallfile the usual undertaking before this court within a period of two weeksthat they would give vacant possession of the petition schedule propertywithout any demur to the respondent and also that they would pay Rs.3000/- to as monthly rent during the extended period of two months.

B30. The appeal stands dismissed subject to the above. All pendingapplications are disposed of.

Nidhi Jain, Anurag Bhaskar and Amarendra Kumar Appeal dismissed.

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