(1) The revision petitioners are the tenants in respect of the premises bearing door nos, 8 - 4 - 45 and 8 - 4 - 47 in the llth ward in petitioner. Srikakulam town. The two premises belong to one abdulla khan. He has two sons and one daughter viz, babu khan, hyder khan and rahima khatoon. These two premises were leased out by abdulla khan to the petitioners herein. Abdulla khan has been collecting rents from the petitiners from the beginning even by the date of the petitioners. Hyder khan and rahima khatoon claimed that abdulla khan executed registered settlement deeds exs. A - 1, date 6 - 4 - 1975 in favour of rahima khatoon and ex. A - 11, date 6 - 4 - 1975 in favour of hyder khan and hence they are the owners of the two premises and consequently they become the landlords in respect of the two premises. They, therefore, issued lawyer notices exs. A - 6 and a - 16 date 21 - 12 - 1977 to the petitioners informing them that they become the title holders under the settlement deeds exs. A - 1 and a - 11 and consequently they became the landlords in respect of the two premises in the occupation of the petitioners and they should, therefore, pay rents to them but not to their father, abdulla khan. The copies of exs. A - 6 and a - 16 were also sent to abdulla khan by hyder khan and rahima khatoon. Abdulla khan gave replies exs. B - 2 and b - 5, dated 9 - 1 - 1978 stating that the did not execute the alleged settlement deeds and even if such deeds were executed, there are not acted upen and has been in possession and enjoyment of the two premises in respect of which the settlement deed were executed and has been collecting the rents from the tenants all through, and since he did not cease to be the landlord in respect of the two premises, the petitioners are still his tenants and they are, therefore, rightly paying the rents to him. On receipt of exs. B - 2 and b - 5 hyder khan and rahima khatoon filed petitions r. C. C. Nos. 2 and 1 of 1980 before the rent controller - cum - district munsif, narasaraopet for eviction of the tenants on the ground of wilful default. The tenants resisted the eviction petitions denying the jural relationship of landlord and tenant between them and hyder khan and rahima khatoon. But they contend that one bahadur khan inducted them into possession of the premises nos. 8 - 4 - 45 and 8 - 4 - 47. They also contended th it they were orginally paying a rent of rs. 60/ - to bahadur khan and subsequently the rent was enhanced. They further contended that bahadur khan constructed the entire building including the two premises in question which are under their occupation.

(2) The rent controller, took the view that there is no relationship of land lord and tenant between the parties and the denial of tide made by the tenants is bona fide and hence the rent controller has no jurisdiction to dispose of the eviction petitions and he advised the petitioners, who filed the eviction petitions, toipursue their remedy by way of filing a civil suit in a civil court and so holding, he dismissed the petitions.

(3) Hyder khan and rahima khatoon having been aggrieved with the decision of the rent controller in rcc nos. 1 and 2 of 1980 preferred appeals before the subordinate judge, srikaku'am, who is the appellate authority under the act. The learned subordinate judge did not agree with the view taken by the rent controller. He took the view that the settlement deeds exs. A - 1 and a - 11 ,on which hyder khan and rahima khatoon relied for their title were acted upon by abdulla khan and abdulla khan ceased to be the owner and ceased to have any right or interest in the two premises after the execution of exs. A - 1 and a - 11 and hence there is a relationship of landlord and tenant between the parties. He, therefore, held that the eviction petitions are maintainable and the rent controller has jurisdiction to entertain and to dispose of them. He, therefore, remanded the matter to the rent controller for a decision on the question whether the tenants committed wilful default since the rent controller did not give any such finding in his orders. Aggrieved with the decision of the learned subordinate judge, who is the appellate authority, the tenants preferred these revisions.

(4) The parties will be referred to as arrayed in these revisions the tenants will be referred to as petitioners and hyder khan and rahima khatoon as respondents.

(5) Sri a. Surya rao, the learned counsel for the petitioners, contends that the learned subordinate judge is not justified in holding that there is a jural relationship of landlord and tenant between the petitioners and the respondents. He also contends that the learned subordinate judge, ought to have referred the matter to the civil court snice he has no jurisdiction to decide whether the respondents obtained valid title in respect of the premises in question under the settlement deeds exs. A - 1 and a - 11 and whether they were acted upon by abdulla khan and all these qustions cannot be considered in these proceedings which are of summary nature and it is the civil court that is competent to adjudicate on such matters. He also contends that the need to refer the matter to the civil court is imperative especially when abdulla khan himself came forward to say that exs. A - 1 and a - 11 were not acted upon even if they are execuied by him. He also contends that the learned appellate authority is not justified to hold that exs. A - 1 and a - 11 were acted upon especially when abdulla khan has been collecting the rents even by the date of the eviction petitions.

(6) Sri poornaiah, the learned counsel for the respondents, contends that the rent controller is not justified in referring the matter to the civil court. He also contends that the learned appellate authority is justified in examining the entire evidence brought on record whether the settlement deeds exs, a - 1 and a - 11 were acted upon especially when abdulla khan contends that he has not acted upon and that he has been collecting the rents from the tenants even by the date of the eviction petitions and merely because the tenants dispute their jural relationship, the rent controller or the appellate authority should not refer the matter to the civil court on that ground alone and it is open to the rent controller or the appellate authorty to examine the entire evidence brought on this aspect and give a dicision whether there is relationship of landlord and tenant and if on the basis of the evidence brought on record, the rent controller or appellate authority comes to the contusion that there is no record on relationship of landlord and tenant between the parties, then they have to hold that the denial is bona fide and then only should refer the matter to the civil court. He also contends that the appellate authority has examined the entire evidence brought on record carefully and rightly came to the conclusion that abdulla khan acted upon the settlement deeds exs. A - 1 and a - 11 and he cannot now say that he did not cease to be the owner of the premises in question and he cannot, therefore, claim that he should be treated as landlord and is entitled to collect the rents and the respondents are not the landlords and they are not entitled to collect the rents from the petitioners.

(7) The question is whether there is relationship of landlord and tenant between the petitioner and the respondents ?

(8) Though abdulla khan in his reply notices exs. B. 2 and b. 5 contends that he did nut execute exs. A. 1 and a. 11 in favour of the respondents, that cannot be accepted in the face of the recitals in exs. A. 1 and a. 11 are the registered settlement deeds. Hence the contention of abdulla khan that exs. A. 1 and a. 11 were not executed by him cannot be accepted. The main question is whether they are acted upon ? on this question the appellate authority has given cogent reasons as to how it came to the conclusion that thay are acted upon. Thre is volume of documentary evidence lending support to the contention of the respondents that exs. A. 1 and a. 11 were acted upon by abdulla khan. Ex. A. 9 is the mortgage deed dt. 1 - 7 - 76, ie. , one year after exs. A. 1 and a. 11, were executed by hyder khan favour of boyana drowpathamma. It was attested by his father abdulla khan. The signature of abdulla khan in ex. A. 9 is marked as ex. A. 10 and it was identified by p. W. 2. The premises nos. 8 - 4 - 45 and 8 - 4 - 47 were got attached in e. P. No. 11/77 in o. S. No. 9/75 on the file of the subordinate judge, srikakulam by one krishna murthy for the debt due from abdulla khan. Then hyder khan filed claim petition contending that abdulla khan ceased to be the owner of the said premises and he has got title in respect of the two premises under the settlement deed ex a. 11 and the lerned subordinate judge accepted the claim of hyder khan and released the premises nos. 8 - 4 - 45 and 8 - 4 - 47 from attachment. The certified copy of the order passed by the learned subordinate judge is ex. A. 12 exs. A. 13 and a. 14 show that notices were issued by the gift tax authorities to him and rahima khatoon and ex. A. 15 shows that gift tax was paid by them on 10 - 7 - 81. Ex. A. 42 dt. 28 - 2 - 77 is the letter addressed by abdulla khan to the gift tax authorities stating that the premises in question were settled under settlement deed in favour of hyder khan. All these documents clearly show that after exs. A. 1 and. 11 were executed in favour of the respondents, the property was delivered to them as per the recitals of the sttlement deeds exs. A. 1 and a. 11 and thereafter they have been dealing with the property independently as the owners of the properties and hence it is not open for abdulla khan to say that the settlement deeds exs. A. 1 and a. 11 were not acted upon and he still continues to be the owner. The decision of the subordinate judge, ex. A. 12 in the claim petition, that hyder khan is the owner of the premises nos. 8 - 4 - 45 and 8 - 4 - 47 under settlement deeds exs. A. 1 and a. 11 and abdulla khan ceased to be the owner and ex. A. 42, dt. 28 - 2 - 1977 addressed by abdulla khan clearly shows that he admitted that the premises in question were settled in favour of hyder khan clearly establish that abdulla khan ceased to be the owner and hyder khan and rahima khatoon are the owners of the premises and they have been dealing with the property as owners. Abdulla khan's contentions are, therefore, unreasonable under law and he had lost all rights and interests in the two premises. As the respondent's brother, bahadur khan, raised a dispute, abdulla khan was paying to him the rents which he was collecting on behalf of the respondents contrary to law and also detrimental to the interests of the respondents. Hence, the respondents felt it necessary to issue notices to the petitioners informing them as to how they became the holders of title of the two premises in their occupation and they therefore, became their tenants and hence they should pay the rents to them.

(9) In s. V. S. Muhammad yusuf rowther and another vs. Muhammad yusuf towther and others, rajagopala ayyanagar, j. , held that

"the delivery of possession of gifted properties is an essential condition of the validity of the gift and its operative nature under the muslim law and it would be for the donees to establish it. But where in the deed of gift executed by the deceased, there is a recital that the possession of the property which is the subject matter of the gift is delivered to the donees, it is an admission binding on the deceased and those claiming under him. Consequently the burden lies on those who claim under the deceased, to prove that no delivery of possession was in fact effected in favour of the donees. Burden in such a case is not on the donees to prove the delivery of possession to them."

the requirements of this decision are fully satisfied by the donees in the case on hand. With clinching documentary evidence, the respondents are able to establish that the recital in the gift deed that possession was delivered was acted upon.

(10) In ayeeshee bivi vs. K. S a. Shaik mohamed alim sahib and others veeraswami, j. (as he then was) held that :

"the requirement of delivery, to constitute a valid gift under the mohammadan law, is not that, irrespective of the circumstances, there should always be physical delivery. The requirement is only that there should be such delivery to the donee as the property which is the subject - matter of the gift is capable of. What delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case."

(11) This ruling also clarifies that a valid gift should be accompanied by delivery of physical possession of the property in respect of which the gift deed was executed. The delivery of possession should be understood as such delivery as the property is capable of. Suppose the property is in possession of the tenants, it is impossible to insist upon the physical delivery. In such a case, the symbolic delivery can be given by the donor.

(12) In the case on hand, the premises were in the occupation of tenants. They will not vacate except in the circumstances stated in section 10 of the rent control act. Hence, it is only the symbolic delivery that could be affected. The same was done by abdulla khan in favour of the respondents, who are the donees under exs. A. 1 and a. 11. He delivered symbolic possession in respect of the premises described in exs. A. 1 and a. 11 and the original settlement deeds were given to them to show his bona fides and to act upon the settlement deed.

(13) In amir ali khan and others vs. Shahalam khatoon and another the bench of this court considered all these questions and held that in case of gift of immovable property in possession of mortgagee, delivering of property can be only symbolic and not actual or physical. Thus, where there is declaration of gift and further its acceptance is followed by the delivery of gift deed, the gift will have satisfied all the requisites so as to make it valid. It is, therefore, clear that this decision also lends support to the view that the symbolic delivery if effected is sufficient to constitute a valid gift under mohammadan law. In the case on hand, as stated above, symbolic delivery was effected besides giving settlement deeds by the donor to the respondents i. E. , donees. The lawyer notices exs. A. 6 and a. 16 clearly establish this fact. But on receipt of the notices, the pethioncrs ought to have paid rents to the respondents but instead they continued to pay the rents to the old man abdulla khan.

(14) Merely because the petitioners denied that there is no jural relationship between the two, it is not sufficient for the court to accept such a contention. When the facts are so clear that the settlement deeds are valid and they were acted upon, the respondents became the owners of the premises and when notice was given by the respondents to the petitioners - tenants, they ought to have paid rents to the respondents. It is not open to the tenants to contend that there is no relationship of landlord and tenant between them and the respondents. Having regard to these reasons, i have no hesitation to hold that the learned subordinate judge, who is the appellate authority, is justified in holding that there is relationship of landlord and tenant between the petitioners and the respondent and the matter therefore, need not be referred to civil court and the denial of relationship of landlord and tenant by the tenants is mala fide and hence cannot be accepted.

(15) When the petitioners received the lawyer's notices exs. A. 6 and a. 16 and when abdulla khan claimed that he still continued to be the owner and also the landlord in respect of the premises and the petitioners should pay the rents to him only, the petitioners ought to have deposited the rents under sec. 9 of the a. P. Buildings (lease, rent and eviction) control act and requested the rent controller to decide the question as to who in between the respondents and abdulla khan is entitled to receive the rents that could have been the proper and legal course. When they did not do so and when they continued to pay the rents only to abdulla khan, even after the receipt of notice from the respondents, their conduct in not depositing the rents with the rent controller or in not paying the rents to respondents cannot be said to be bona fide.

(16) For the reasons given above, i agree with the view taken by the appellate authority on the question that the respondents are landlords and that there is relationship of landlords and tenants between the respondents and petitioners.

(17) But the next question that requires consideration is whether the appellate authority was justified in remanding the matter to the rent controller with a direction that the rent controller should consider the question whether the tenants committed wilful default or not. I do not think that the order of remand is in conformity with the provisions of section 20 (3) of the act. There is no provision in the rent control act for remand. Section 20 provides for appeal. Sub - section (3) of section 20 of the act provides as to how the appeal should be disposed of by the appellate authority. It reads as follows :

"the appellate authority shall send for the records of the case from the controller and after giving the parties an opportunity of being heard, and, if necessary, after making such further inquiry as he thinks fit either personally or the controller, shall decide the appeal"

.

(18) A reading of this provision makes it clear that the appellate authority should dispose of the appeal after hearing both the parties. If the appellate authority feels it necessary that further enquiry is necessary, the appellate authority itself should hold the enquiry after giving an opportunity to both the parties or direct the rent controller to do the same. The appellate authority should dispose of the appeal on the basis of its own enquiry, if it holds enquiry by itself or on the basis of the findings given by the rent controller, if it directs the rent controller to hold enquiry. This it is clear that section 20 (3) of the act does not contemplate for remand. On the other hand, section 20 (3) of the act requires the appellate authority to follow the two courses viz. , (1) the appellate authority should bold further enquiry, if it feels necessary or (2) the appellate authoritv should direct the rent controller to hold enquiry and submit his findings on the point or points and thereafter the appellate authority should dispose of the appeal. As to which course the appellate authority should follow between the two courses provided in section 20 (3) of the act, it is entirely left to the discretion of the appellate authority and section 20 (3) of the act does not fetter the discretion of the appellate authority in any way. If further evidence is not necessary and the evidence is already available on record and it is sufficient to dispose of the points involved in the appeal, the appellate authority can itself dispose of the appeal. In asmuch as the appellate authority has to order further enquiry, which is either to be done personally or through the rent controller, it is implicit that the appeal should be kept pending all the time before the appellate authority. As the language of sec. 20 (3) of the act is unambiguous, any order of remand passed by the appellate authority is contrary to sec. 20 (3) of the act and is, therefore, illegal.

(19) I am fortified with the two decisions of this court for the view, which i have taken on the question of remand under sec. 20 (3) of the act in mahboob bi vs. Alvala lachmaiah mumkannaiah, j. , held that in an appeal under sec. 20 it is not competent to the appellate court to remand the case to the rent controller for fresh trial on merits. This decision was followed by a. V. Krishna rao, j. , in ekramuddion vs. Smt. Sheela bai ekbote. The learned judge held that it is not competent for the appellate court under sec. 20 (3) of the act to remand the case to the rent controller for fresh disposal on merits. The learned judge further held that

"where the order of remand made by the appellate authority was bad and therefore set aside the proceedings before the rent controller cannot be dismissed, unless it be shown that they are vitiated in any manner under law. Now that that judgment of the appellate authority remanding the case has to be set aside, it follows that the rent appeal has to be heard on its own merits. It would be open to the appellate authority on giving an opportunity to the parties to be heard, if he thinks it necessary, make such further enquiry as he thinks fit by himself or direct the controller to do the same"

.

(20) For the aforesaid reasons, i hold that the appellate authority committed illegality in ordering for remand. Hence, while confirming the decision of appellate authority that there is jural relationship between the petitioners and the respondents and the matter need not be referred to the civil court, i hold that the order of remand passed by the appellate authority is erroneous under law. Since the lower appellate authority feels that there is no evidence for giving a decision on the question whether the tenants committed wilful default, i hold that the lower appellate authority can dispose of the appeal following the procedure pointed out above. I, therefore, set aside the order of remand passed by the appellate authority and restore the appeal to its file and direct the appellate authority to dispose of it in the light of my observations.

(21) In the result, the civil revision petitions are dismissed but in the circumstances, no costs. C. R. P. Dismissed.