Madras High Court
Jabarullakhan vs Lucas on 25 September, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 25.09.2018
RESERVED ON : 18.09.2018
DELIVERED ON: 25.09.2018
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD).Nos.1401 of 2016
& 1402 of 2016 and
C.M.P.(MD)Nos.6816 & 6817 of 2016
Jabarullakhan ... Petitioner/Respondent/
Respondent/Tenant
in both petitions
Vs.
Lucas ... Respondent/Appellant/
Petitioner/Landlord
in both petitions
COMMON PRAYER : Civil Revision Petitions are filed under Section 25 of
Tamil Nadu Buildings (Lease and Rent Control) Act, to call for the records
relating to Judgment and Decree dated 29.01.2016 in R.C.A.Nos.3 and 4 of 2014
on the file of the Rent Control Appellate Authority/Subordinate Judge,
Devakottai, reversing the order and decreetal order in R.C.O.P.Nos.7 and 8 of
2010, dated 24.10.2013 on the file of the Rent Controller/District Munsif,
Devakottai, set aside the same and allow the Civil Revision petitionS.
(in both petitions)
!For Petitioner : Mr.M.Vallinayagam,
Senior Counsel,
for Mr.J.Anandkumar.
^For Respondent : Mr.R.Sundar Srinivasan
:COMMON ORDER
The respondent herein filed R.C.O.P.Nos.7 and 8 of 2010 on the file of the learned Rent Controller(District Munsif), Devakottai, for evicting the Revision petitioner herein from the petition premises. The learned Rent Controller by order dated 24.10.2013 dismissed both the petitions. Aggrieved by the same, the respondent herein filed R.C.A.Nos.3 and 4 of 2014 before the Appellate Authority/Subordinate Court, Devakottai. The Appellate Authority by order dated 29.01.2016, reversed the orders passed by the learned Rent Controller and allowed the appeals. Challenging the same, the Revision petitioner has filed these Civil Revision petitions.
2. Heard the learned Senior counsel appearing for the Revision petitioner and the learned counsel appearing for the respondent.
3. The learned Senior counsel contended that the very R.C.O.P., filed by the respondent herein is clearly not maintainable. This is because, the property in question originally belonged to one Vallavan Rawuther @ Katchu Rawuther. The said Vallavan Rawuther passed away in the year 1974. He died leaving behind his wife and three daughters and three sons as his legal heirs.
4. Kamarudeen was one of the three sons. There is intrinsic evidence that the said Kamarudeen, did not pre-decease Vallavan Rawuthar. He died later. Kamarudeen's share in the estate of the said Katchu Rawuther devolved on Ahamed Jalaludeen. There was a partition involving the respondent, his elder brother Fakkir Mohamed and the son of Kamarudeen, namely, Ahamed Jalaludeen. The property in question was allotted to the said Ahamed Jalaludeen.
5. The case of the Revision petitioner is that though the respondent originally inducted him as the tenant, it was he who informed him about the said allotment and based on the said information given by the respondent, the Revision petitioner purchased the property in question from the said Ahamed Jalaludeen. Since dispute appeared to have arisen between the respondent herein and the said Ahamed Jalaludeen, the Revision petitioner filed O.S.No.66 of 2008 on the file of the District Munsif Court, Devakottai, seeking the relief of permanent injunction. The said suit was however dismissed on 06.04.2011 on technical grounds.
6. The learned Senior counsel would contend that admittedly the property in question did not belong exclusively to the respondent herein. He was more like a Manager who was collecting rent on behalf of the co-owners. From the evidence on record, it clearly appears that a partition had taken place among the members of the family of the said Katchu Rawuther. Ex.R3 was marked during the cross examination of the respondent. It is a sale deed executed by the respondent Lucas in favour of one Mohamed Badusha. He has mentioned in the said Sale Deed that the photocopies of the parent document, tax receipts as well as partition document have been handed over to the purchaser. The Revision petitioner did not question the title of the respondent till his purchase from the said Ahamed Jalaludeen. The respondent herein had filed the said R.C.O.P., under Section 10(2)(i) and 10(2)(vii) of Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, the burden to prove lack of bona fides on the part of the Revision petitioner in the matter of denial of title is only on the landlord. Only if the landlord had discharged the burden cast on him, the onus would shift to the tenant.
7. In this regard, the learned Senior counsel appearing for the Revision petitioner placed on reliance the decision reported in (2002) 3 SCC 98 (J.J.Lal (P) Ltd., V. M.R.Murali). The learned Senior counsel would also contend that the Rent Controller could not have undertaken an exercise of investigating the respective title claims and what the Rent Controller was expected to do so was to see if there was the bona fides on the part of the tenant in the matter of denial of title. Once a finding is recorded in that regard in favour of the tenant, the landlord should be straightaway relegated to move the civil Court for evicting the tenant. In this case, the Rent Controller rightly held that the R.C.O.P. was not maintainable. The Appellate Authority by an erroneous process of reasoning reversed the well considered decision of the learned Rent Controller. That the order of the Appellate Authority suffers from patent non application of mind is clear from the single fact that R.W.2 Fakkir Mohamed who was only a witness to the partition that took place between the respondent and other members of his family was projected as the Revision petitioner's vendor. The learned Senior counsel would contend that Section 116 of the Indian Evidence Act, 1872, was totally misconstrued by the appellate Authority. He also would contend that the findings rendered in Ex.P.5 Judgment in O.S.No.66 of 2008 cannot constitute res judicata. It was a suit for bare injunction and it suffered a dismissal only on technical grounds. He stressed the fact that the tenant/Revision petitioner did not indulge in bald denial of the respondent title. His claim is backed by a registered Sale Deed dated 23.04.2008 that was marked as Ex.R.1. The Revision petitioner's vendor was not some stranger. Admittedly, he is the brother's son of the respondent. There is material available to establish the fact that the partition had taken place. Therefore, the appellate Authority ought to have come to the conclusion that the denial of the respondent's title by the Revision petitioner was justified and bona fide. The learned Senior counsel appearing for the Revision petitioner wanted this Court to set aside the orders passed by the Appellate Authority and allow these Civil Revision petitions.
8. The submissions of the learned Senior counsel were controverted by the learned counsel appearing for the respondent. The learned counsel for the respondent pointed out that the case projected by the Revision petitioner herein had been denied in toto by the landlord. The learned counsel highlighted the fact that admittedly the Revision petitioner herein became the tenant in respect of the petition premises only under the respondent herein. It was the respondent who inducted the Revision petitioner into the petition premises as a tenant. It was he who collected the rent all along. The landlord had specifically denied the claim of the Revision petitioner that the property in question had been allotted to the share of the Ahamed Jalaludeen. Therefore, the denial of the respondent's title by the Revision petitioner is not bona fide. The landlord alleged collusion between the Revision petitioner and the said Ahamed Jalaludeen and characterized the Sale Deed in question as a false document. He also pointed out that O.S.No.66 of 2008 filed by the Revision petitioner before the learned District Munsif, Devakottai was dismissed by holding that he must file a comprehensive suit for declaration of his title on the sale deed. The findings rendered in the said suit had become final. The order passed by the Appellate Authority was right and justified and that it did not call for any interference.
9. This Court bestowed its anxious consideration on the rival contentions.
10. One fact is not in dispute. The property in question belonged to the Vallavan Rawuther @ Katchu Rawuther. It is not in dispute that it was the respondent whom the Revision petitioner treated as a landlord. The only point for consideration is whether in view of the execution of the Sale Deed dated 23.04.2008(Ex.R.1) by Ahamed Jalaludeen who is the respondent's brother's son in favour of the Revision petitioner, the Revision petitioner ceased to be a tenant. In fact as rightly pointed out by the learned Senior counsel appearing for the Revision petitioner what must be seen is whether the Revision petitioner's denial of the respondent's title can be termed as bona fide.
11. Even though the Revision petitioner filed O.S.No.66 of 2008 before the District Munsif Court, Devakottai and the same was dismissed by Judgment and Decree dated 06.04.2011, the findings rendered therein will not amount to res judicata. It was a suit for bare injunction. A finding of title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title(specific or implied by a decision reported in (2008) 4 SCC 594 (Anathula Sudhakar V. P.Buchi Reddy). In O.S.No.66 of 2008 on the file of the District Munsif Court, Devakottai, four issues were framed. The issues pertained only to the Revision petitioner's possession and no issue was framed regarding title. Therefore, this Court concurs with the submission of the learned Senior counsel appearing for the Revision petitioner that the findings in the said suit instituted by the Revision petitioner cannot constitute res judicata.
12. But then, the principle laid down in the very same decision, namely,(Anathula Sudhakar V. P.Buchi Reddy) reported in (2008) 4 SCC 594 would go against the Revision petitioner. It was held that where the plaintiff is in possession and his title to the property is in dispute or under a cloud or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. But the Revision petitioner chose to file a suit for injunction simpliciter. He did not seek declaration of his title while filing O.S.No.66 of 2008. Even after the respondent herein filed his written statement, the Revision petitioner did not chose to amend the prayer. In his written statement, the respondent had asserted that the vendor of the Revision petitioner, namely, Ahamed Jalaludeen did not have any share in the property in question. The claim of partition among the respondent herein and his brother and the said Ahamed Jalaludeen put forth by the Revision petitioner was also denied. Even though the Revision petitioner's claim of title was strongly contested, the Revision petitioner chose to persist with his original prayer for injunction alone. Only a person who acts in good faith can be said to be acting in a bona fide manner. The fact that the Revision petitioner chose to file a suit for injunction simpliciter without a prayer for declaration of title by itself shows a lack of bona fides on his part.
13. Even before the learned Rent Controller, the Revision petitioner merely marked Ex.R.1 Sale Deed dated 23.04.2008. He did not examine his vendor, namely, Ahamed Jalaludeen.
14. The learned Senior counsel appearing for the Revision petitioner took me through the contents of Ex.R.3 Sale Deed dated 16.09.2005 executed by the respondent herein in favour of a third party. In the said Ex.R.3 Sale Deed, there is a recital that there was a partition in the family. Therefore, the learned Senior counsel wanted me to draw adverse inference against the respondent on this basis.
15. I am unable to agree with this submission for more than one reason. Ex.R.3 was marked only under objections. The learned Rent Controller though dismissed the R.C.O.Ps., filed by the landlord had held that the objection raised by the landlord against Ex.R.3 is sustained. Even in the memorandum of grounds of Civil Revision petitions, this has not been questioned. Therefore, the Revision petitioner cannot be permitted to advance contentions on the strength of Ex.R.3.
16. The issue can be approached from yet another perspective. The Revision petitioner as the purchaser from the said Ahamed Jalaludeen would have definitely called upon his vendor to furnish him with copies of the parent document and other relevant deeds. It is not the case of the respondent that the property was the absolute property of the Ahamed Jalaludeen. Even according to the Revision petitioner, it was allotted to the said Ahamed Jalaludeen only in a partition. If that be so, the partition deed becomes the parent document. The Revision petitioner does not appear to have insisted for being furnished with a copy thereof. There is no reference to it in Ex.R.1 Sale Deed dated 23.04.2008. No such copy has been marked.
17. As per Section 111(d) of the Transfer of Property Act, a lease of the immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same in one person in the same right. For this to happen, the landlord must execute a sale deed in favour of the lessee. The respondent who was recognized as a landlord by the tenant at least up to the execution of Ex.R.1 did not execute the deed of conveyance in favour of the Revision petitioner. A purchase of a fraction of interest from a co-sharer will not lead to merger and determination of lease as contemplated by Section 111(d) of the Transfer of Property Act. The Revision petitioner has not shown that his vendor had the authority to convey the entire property in question in favour of the Revision petitioner by executing Ex.R.1.
18. These circumstances, namely, non-examination of the vendor Ahamed Jalaludeen, non filing of a declaratory suit and non furnishing of the so called document evidencing partition among the respondent, his elder brother and the Revision petitioner's vendor, clearly demonstrate lack of bona fides on the part of the Revision petitioner. It is true that Section 116 of the Indian Evidence Act only states that the tenant cannot be permitted to deny that his landlord at the beginning of tenancy, did not have a title to the suit property. But the case on hand does not rest on Section 116 of the Indian Evidence Act. Section 116 of the Indian Evidence Act is not exhaustive. It embodies one aspect of rule of estoppel. While Section 116 of the Indian Evidence Act forbids a tenant from denying the landlord's title at the commencement of tenancy, it cannot be construed to mean that the tenant is at liberty to do so later. Section 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act enables the landlord to sue the tenant for eviction in case of denial of title. Therefore, denial of landlord's title by the tenant at any stage furnishes a ground for eviction. Of course the lack of bona fides on the tenant's part must be established by the landlord. It is true that there are several glaring factual errors and errors of law in the orders passed by the Appellate Authority. There is even a strong justification for the learned Senior counsel appearing for the Revision petitioner to characterise the orders of the Appellate Authority as suffering from non-application of mind, but then, this Court sustains the orders impugned in these Civil Revision petitions for reasons stated above.
19. It was strongly urged that the Appellate Authority ought to have conducted an enquiry as to whether there was willful default. But this argument fails to take note of the fact that the eviction petition was filed not only for willful default but also for denial of title. It is not the case of the Revision petitioner that he has been paying rent regularly to the landlord. Admittedly, no rent was paid from the date of Ex.R.1. A tenant is bound to pay rent to the landlord even during the pendency of the eviction proceedings. Failure to do so would also constitute willful default. In this case, the landlord has made out a case for eviction not only on the ground of denial of title but also on the ground of willful default.
20. The orders passed by the Appellate Authority are sustained. For the reasons stated above, the Civil Revision petitions stand dismissed. No costs. Consequently, connected Miscellaneous petitions are closed.
To
1. The Subordinate Judge, The Rent Control Appellate Authority, Devakottai.
2. The District Munsif(Rent Controller), Devakottai.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.