Madras High Court
A.Natarajan vs Sakunthala (Deceased) on 6 March, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.03.2013 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.1130 of 2001 and C.M.P.Nos.3393 and 3394 of 2006 and S.A.No.1653 of 2001 S.A.No.1130 of 2001: ------------------- 1. A.Natarajan 2. A.Mohan 3. A.Munuswamy .. Appellants Vs. 1. Sakunthala (deceased) 2. C.N.T.Vijayakumar 3. G.Jayalakshmi 4. D.Indira .. Respondents R2 recorded and RR3 and 4 are brought on record as legal representatives of the deceased R1 vide memo dated 20.11.2011 as per order of court dated 21.11.2011 in S.A.No.1130 of 2011 [MSNJ] S.A.No.1653 of 2001: ------------------- 1. Sakunthala (deceased) 2. C.N.T.Vijayakumar 3. G.Jayalakshmi 4. D.Indira .. Appellants 2nd appellant recorded and 3rd and 4th appellant are brought on record as legal representatives of the deceased first appellant vide order of court dated 21.11.2011 in C.M.P.Nos.1107 to 1109 of 2011 [MSNJ] Vs 1. A.Natarajan 2. A.Mohan 3. A.Munuswamy 4. Minnalammal .. Respondents These two second appeals are filed as against the common judgement and decrees dated 30.11.2000 passed by the learned VI Additional Judge, City Civil Court, Chennai in A.S.Nos.70 of 1999 in confirming the judgment and decree dated 01.12.1998 passed by the learned XVII Assistant Judge, City Civil Court in O.S.No.4239 of 1994 and in reversing the judgment and decree passed in O.S.No.4919 of 1994. For Appellants : Mr.M.L.Joseph for in S.A.No.1130 M/s.Chennai Law Associates of 2001 and for respondents in S.A.No.1653 of 2001 For Respondents : Mr.K.V.Ananthakrishnan in S.A.No.1130 of for Mr.J.Saravanavel 2001 and appellants in S.A.No.1653 of 2001 COMMON JUDGMENT
These two second appeals have been focussed by the respective plaintiffs, inveighing the common judgement and decrees dated 30.11.2000 passed by the learned VI Additional Judge, City Civil Court, Chennai in A.S.Nos.70 of 1999 in confirming the judgment and decree dated 01.12.1998 passed by the learned XVII Assistant Judge, City Civil Court in O.S.No.4239 of 1994 and in reversing the judgment and decree passed in O.S.No.4919 of 1994.
2. A summation and summarisation of the germane facts, absolutely necessary for the disposal of these two second appeals would run thus:
a] O.S.No.4919 of 1994 was filed by one Sakunthala and Vijayakumar the appellants in S.A.No.1653 of 2001 seeking the following reliefs:
(i) for partition of the suit property which is morefully described in the schedule hereunder into two equal shares and allocating one such share to the plaintiffs as their share by metes and bounds and for separate possession.
(ii) for permanent injunction restraining the defendants and their men and agents or whomsoever claiming under them from any manner interfering alienating or encumbering the property, which is morefully described in the schedule here under and
(iii) for costs.
(extracted as such) mainly on the ground that the suit property described in the schedule of the plaint, which is extracted here under for ready reference SCHEDULE OF PROPERTY All that piece and parcel of land and superstructure comprised in Door No.28, (Old No.26) Kummalamman Koil Street, Tailors Road, Kilpauk, Madras 600 010 to an extent of 1595 sq.ft. In Survey No.200 in Block No.14 of Egmore village bounded on
1. North by door No.6, Veeraraghavan Street
2. South by Kummalamman Koil Street
3. East by Door No.29, Kummalamman Koil Street
4. West by Veeraraghavan land within the sub-registration District of Periyamet and within the registration District of Madras.
originally belonged to one Ponnuswamy. As narrated by the learned counsel for the appellants/plaintiffs, Ponnuswamy had two sons, viz., Arumugam and Nagappan. The defendants are the persons claiming under Arumugam; whereas Nagappan had his son by name Thanthoni, who married Sakunthala the first plaintiff and they gave birth to plaintiff No.2-Vijayakumar. Two superstructures were raised and one is under the occupation of Arumugam and after his death, it is under the occupation of the defendants. Whereas the said Sakunthala and Vijayakumar are in the another building raised by their predecessor. While so, the defendants' without any manner of right started giving trouble to the plaintiffs peaceful possession and enjoyment of the property. Whereupon it necessitated the plaintiffs to file the suit for partition.
b] Whereas the defendants' filed the written statement resisting the suit setting out various pleas, which could tersely and briefly be set out thus:
The averments in the plaint were nothing but a load of baloney fraught with falsity. There was no joint enjoyment of the property between Arumugam and Nagappan and in fact the genealogy as sought to be projected in the plaint as well as during the argument on the plaintiffs' side, is having no legs to stand. In fact, the plaintiffs' are not at all the descendants of Ponnuswamy. It was Ponnuswamy, who occupied the entire property described in the schedule of the plaint and the said Nagappan entered into the B scheduled property described in the plaint in O.S.No.4239 of 1994 as a tenant under Ponnusamy. They have been paying rent also to Ponnuswamy; subsequently, inasmuch as the plaintiffs' started disputing the title of the descendants of Ponnuswamy, viz., the defendants' herein, have filed the suit in O.S.No.4239 of 1994 seeking the following reliefs:
- to direct the defendant to pay the rent arrears of Rs.1,800/- due from 31.3.1991 till 31.3.1994;
- to direct the defendants to pay damages at the rate of rent Rs.50 per month from the date of termination of the tenancy i.e., from 1.4.94 till the date of delivery of the B schedule property.
- to direct the defendants to quit and deliver vacant possession of the B schedule property.
- to direct the defendants to pay the cost of the suit.
(extracted as such) Accordingly, they prayed for the dismissal of the suit in O.S.No.4919 of 1994.
c] The suit in O.S.No.4239 of 1994 virtually reflects the contents of the written statement in O.S.No.4919 of 1994. However, the defendants' therein, who are the plaintiffs in O.S.No.4919 of 1994 virtually incorporated their plaint averments in the written statement filed in O.S.No.4239 of 1994.
d] Whereupon issues were framed by the trial court and joint trial was conducted, during which, the first plaintiff in O.S.No.4239 of 1994 examined himself as PW1 along with PW2 and marked Exs.A1 to A 74. On the other side, D2-Vijayakumar in O.S.No.4919 of 1994 examined himself as DW1 along with D.Ws.2 and 3 and marked Exs.B1 to B10.
e] Ultimately, the trial court dismissed the suit in O.S.No.4239 of 1994' whereas the suit filed for partition in O.S.No.4919 of 1994 was allowed.
f] Being aggrieved by and dissatisfied with the same, A.S.No.70 of 1999 was filed by the plaintiffs' in O.S.4239 of 1994 and A.S.No.58 of 1999 was preferred by the defendants 1 to 3 in O.S.No.4919 of 1994.
g] After hearing both sides, the first appellate court allowed the appeal filed in A.S.No.58 of 1999 reversing the preliminary decree for partition ordered in O.S.No.4919 of 1994 and dismissed the said suit.
h] Being aggrieved by and dissatisfied with the dismissal of O.S.No.4919 of 1994 by allowing the said first appeal, the Second Appeal in S.A.No.1653 of 2001 was focussed by the original plaintiffs, viz., Sakunthala and Vijayakumar in O.S.No.4919 of 1994 setting out various grounds and also suggesting the following substantial questions of law:
1. Whether the court of appeal could omit to decide an issue arising out of a certain plea, if it is satisfied with determination of other issues?
2. Whether the court of appeal could leave the question of title undecided when both parties stake rival claims to title?
3. What should be the guiding factors to decide the question of title when the origin and history of title could not be traced due to absence of any documentary evidence?
4. Whether the court could examine the significance and nature of possession and enjoyment when both parties are not able to produce documents of title in support of their respective claims?
5. In a claim of ownership to ancestral property whether evidence in proof of sanguinary relationship is not relevant?
[extracted as such] i] The first appellate court dismissed the appeal filed in A.S.No.70 of 1999. Being aggrieved by and dissatisfied with the said dismissal of the appeal, the original plaintiffs in O.S.No.4239 of 1994 filed the second appeal in S.A.No.1130 of 2001 on various grounds and suggesting the following substantial questions of law:
(a) Whether petition for eviction under Rent Control Act or suit for Recovery of Possession will lie, when there is a finding that the receipt of rent has not been proved?
(b) Whether the suit for recovery of possession will not lie when the defendants' claim for partition of the property is dismissed?
(c) Whether the petition for eviction under Rent Control Act is maintainable when the defendant's title to the property is negatived?
(extracted as such) j] My learned predecessor framed the following substantial questions of law in S.A.No.1130 of 2001 and S.A.No.1653 of 2001:
S.A.No.1130 of 2001:
1. Whether petition for eviction under Rent Control Act or suit for recovery of possession will lie, when there is a finding that the receipt of Rent has not been proved?
2. Whether the suit for recovery of possession will not lie when the defendants' claim for partition of the property is dismissed?
3. Whether the petition for eviction under Rent Control Act is maintainable when the defendants' title to the property is negatived?
(extracted as such) S.A.No.1653 of 2001:
1. Whether the court of appeal could omit to decide an issue arising out of a certain plea, if it is satisfied with determination of other issues?
2. What should be the guiding factors to decide the question of title when the origin and history of title could not be traced due to absence of any documentary evidence?
3. Whether the court could examine the significance and nature of possession and enjoyment when both parties are not able to produce documents of title in support of their respective claims?
(extracted as such)
3. Heard both sides.
4. All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another.
5. The learned counsel for the original plaintiffs' in O.S.No.4239 of 1994 would pyramid his argument, which could succinctly and precisely be set out thus:
(i) On the side of the plaintiffs' in O.S.No.4239 of 1994, voluminous documents were filed demonstrating and displaying that the said Ponnuswamy for the entire area paid property tax and he had been in possession and enjoyment of the same and following him his descendants continue to enjoy the said property.
(ii) Preponderance of probabilities would govern the adjudication in civil cases. Accordingly, if viewed the plaintiffs comparatively placed before the court clinching evidence, whereas the plaintiffs' in O.S.No.4919 of 1994 have not produced any evidence worth the name at all.
(iii) Inasmuch as the plaintiffs' in O.S.No.4919 of 1994 started disputing the relationship of landlord and tenant even prior to the initiation of the litigation, the plaintiffs' in O.S.No.4239 of 1994 did choose to straightaway file the suit for eviction and wherefore, the question of first approaching the Rent Controller and getting a finding under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act relating to the bona fide title of dispute may not arise.
(iv) The very fact that the plaintiffs in O.S.No.4919 of 1994 filed the suit for partition would speak volumes that their case is not that they are the tenants. If at all half-heartedly they set up title, the Rent Controller has to give a finding whether the title dispute is a bona fide one or not; but, in this case, they disputed the title of the plaintiffs' in O.S.No.4239 of 1994 and initiated proceedings; and in fact, the plaintiffs' in O.S.No.4919 of 1994 did choose to file such suit; however, both the courts below did not appreciate properly the factual scenario.
6. Per contra, the learned counsel for the plaintiffs' in O.S.No.4919 of 1994 would advance his argument, the warp and woof of the same would run thus:
(i) The first appellate court reversed the reasoned and discerning judgment of the trial court on the sole ground that the evidence adduced on the side of the plaintiffs' in O.S.No.4239 of 1994 was not backed by the pleadings.
(ii) In a suit for partition once there is clinching evidence established concerning the relationship and also the right of the parties, the court would not be justified in simply throwing the baby along with the bathe water and the first appellate court could have very well confirmed the partition decree passed by the trial court.
(iii) Ex.B10 connotes and denotes, bespeaks and betokens, evinces and demonstrates that the demand notice as well as the land tax was issued in the name of Arumugam and Nagappan and that itself would establish the joint ownership between the two groups; but the first appellate court simply discarded and ignored it.
(iv) Exs.B1 to B9 the invitations containing the relationship between the parties were wrongly ignored on the sole ground that those were all mere invitations.
(v) Payment of tax in the name of Ponnuswamy would not in any way enure to the benefit of the plaintiffs in O.S.No.4239 of 1994 as normally the Corporation would receive even in the name of a dead person.
Accordingly, he would pray for setting aside the judgment and decree of the first appellate court and for restoring the judgment and decree of the trial court.
7. I would like to fumigate my mind with the following recent decision of the Hon'ble Apex Court reported in 2012 (8) SCC 148 [[Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus:
"59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92, this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added)
77. This court while dealing with an issue in Kalyan Singh Chouhan v. C.P.Joshi, after placing reliance on a very large number of its earlier judgments including Trojan & Co., v. Nagappa Chettiar, Om Prakash Gupta v. Ranbir B.Goyal, Ishwar Dutt v. Collector (LA) and State of Maharashtra vs. Hindustan Construction Co.Ltd., held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of th pleadings, the said evidence cannot be looked into or relied upon.
78. In Bachhaj Nahar v. Nilima Mandal this Court held that a case not specifically pleaded can be considered by the court unless the pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In the absence of pleadings, the court cannot make out a case not pleaded, suo motu.
85.6. The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. Though it may be a different case where inspite of specific pleadings, a particular issue is not framed and the parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it.
8. In the same precedent, the following decisions are found referred to:
(1) AIR 1962 SC 3314 [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mgf. Co. Ltd.] (2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT] (3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy] (4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT] (5) AIR 1957 SC 852 [Oriental Investment Co. Ltd. v. CIT] (6) AIR 192 SC 1604 [Jagdish Singh v. Natthu Singh] (7) (1996) 5 SCC 353 [Parativa Devi v. T.V.Krishnan] (8) (1998) 6 SCC 423 [Satya Gupta v. Brijesh Kumar] (9) AIR 2000 SC 534 [Ragavendra Kumar v. Firm Prem Machinery & Co.] (10) AIR 2000 SC 1261 [Molar Mal v. Kay Iron Works (P) Ltd.] (11) (2010) 11 SCC 483 [Bharatha Matha v. R.Vijaya Renganathan] (12) (2010) 12 SCC 740 [Dinesh Kumar v. Yusuf Ali] (13) (2002) 3 SCC 634 [Jai Singh v. Shakuntala] (14) (2008) 12 SCC 796 [Kashmir Singh v. Harnam Singh]
9. I would like to recollect and call up the following maxim- judicis est judicare secundum allegata et probata - It is the duty of the judge to decide according to facts alleged and proved. Any amount of evidence without the back up of the pleadings should be eschewed.
10. Accordingly, if viewed, the burden is on the plaintiffs in O.S.No.4919 of 1994 to plead properly the relationship among the parties and also their title. To say the least, the plaint in O.S.No.4919 of 1994 is silent as silence could be, with regard to the details concerning relationship sought to be placed before the court. In fact, a litigant cannot be permitted to break new grounds after filing of the plaint. The plaintiffs' in O.S.No.4919 of 1994 cannot pick holes in the case of the defendants' therein and try to seek for partition.
11. One fact is pellucidly and palpably, pithily and precisely clear that the plaintiffs in O.S.No.4919 of 1994 have been in possession and enjoyment of the area, i.e., the B schedule property referred to therein and if at all they have to be evicted by the plaintiffs' in O.S.No.4239 of 1994, they should establish their right and only in accordance with law they could evict the plaintiffs in O.S.No.4919 of 1994..
12. Insofar as O.S.No.4919 of 1994 is concerned the plaintiffs' claim partition based on the joint ownership, which allegedly emerged between Arumugam and Nagappan.
13. The learned counsel for the plaintiffs' in O.S.No.4239 of 1994 would try to project a case that Ponnuswamy happened to be the original owner of the entire extent found described in the schedule of the plaint in O.S.No.4919 of 1994; however, the plaintiffs in O.S.No.4919 of 1994 would claim that all the parties are the descendants of Ponnuswamy; so to say, the said Ponnuswamy was the common propositus for both the groups. This is really a very big proposition, which should have been proved adequately, specifically by pleading as well as adducing proof. Not even any birth certificate or death certificate has been filed. As such, in a suit based on title necessarily, there should be clinching evidence, otherwise by picking holes in the case of the defendants', the plaintiffs; in O.S.No.4919 of 1994 cannot achieve success in the litigative process.
14. The trial court perhaps was simply carried away by Exs.B1 to B9 as well as B10 and held as though the relationship among the parties was established.
15. The learned counsel for the defendants' therein would appropriately point out that mere description of relationship in Exs.B1 to B9 invitations cannot be taken as sufficient to establish the relationship. There is no knowing of the fact as to how the plaintiffs' in O.S.No.4919 of 1994, could claim that they are in dearth of such evidence, if at all what do they say is correct.
16. Precisely and pithily, the plaintiffs' in O.S.No.4919 of 1994 therein would try to project a case as though they are none but the cousins of the other side. If at all what they say is true, there must be some documentary evidence available with them as expected supra; but such evidence has not been placed before the court. The first appellate court adverted to both oral and documentary evidence and it being the last court of facts, appropriately and appositely, reversed the preliminary decree for partition passed by the trial court warranting no interference in this second appeal.
17. However, the plaintiffs' in O.S.No.4239 of 1994 would try to project a case as though they were justified in approaching court for evicting the defendants' because even before the commencement of litigation by the plaintiffs, the defendants' therein unequivocally without minching words, disputed the title of the plaintiffs'.
18. In this connection, I would like to refer to the judgment of this court reported in (2008) 3 MLJ 632 [Arunachalam @ Annamalai vs. Subbulakshmi Ammal and others] and certain excerpts from it would run thus:
"12. The learned senior counsel for the appellant would cite the decision in Rukmani vs. Narayani reported in (1996) 2 MLJ 477, certain excerpts from it, would run thus:
"12. The second point, namely, jurisdiction of civil court entertaining the suit for recovery of possession, admittedly, the suit property is within the Coimbatore Municipal limits. In this respect, the trial court relying on the decision of this court reported in Rajammal v. Athmarammalu, 1978 TLNJ 272 came to the conclusion that in spite of provisions of the Rent Control Act, the Civil Court has jurisdiction and held that the suit filed by the plaintiff is maintainable. The lower appellate court, on the basis of the subsequent judgment reported in Abdul Khader v. Rajammal (1990) 1 MLJ 331 came to the conclusion that the suit is not maintainable. The civil court cannot by-pass the procedure contemplated under the second proviso to Section 10(2) and straight-away grant a decree for possession without reference to the provisions of the Rent Control Act and obtaining orders thereunder. In this respect, Mr.K.Srinivasan, the learned counsel for the respondent brought to my notice the recent decision of the Supreme Court reported in M/s.East India Corporation Ltd., v. Shree Meenakshi Mills Ltd., AIR 1991 SC 1094 : (1991) 2 L.W 654, which is directly on this point. In the said judgment, the Apex Court, after referring the relevant provisions under the Tamil Nadu Buildings (Lease and Rent Control) Act and also referring various earlier decisions, has held that, "Section 10 of the Act, as seen above, prohibits eviction of a tenant whether in execution of a decree or otherwise, except in accordance with the provisions of that Section or Secs.14 to 16. These provisions as well as the other provisions of the Act are a self-contained code, regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by tribunals constituted under the statute and whose orders are endowed with finality. The remedies provided by the statute in such matters are adequate and complete. Although the statute contains no express bar of jurisdiction of the Civil Court, except for eviction of tenants," in execution or otherwise", the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their competence to administer the same remedy as the Civil Courts render in civil suits. Such tribunals having been so constituted has to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it. Although the jurisdiction of the civil court is not expressly barred, the provisions of the statute explicitly show that subject to the extraordinary powers of the High Court and this court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute ...........
Judged by this test, the jurisdiction of the Civil Court in respect of eviction of tenants is barred except to the extent and subject to the conditions prescribed under Sec.10, the second proviso to Sec.10 (1) reads:
"Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to the effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded".
What is stated in the Second Proviso to Sec.10(1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of eviction. But this jurisdiction cannot be invoked otherwise than as stipulated in the Second Proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil Court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Sec.10 or Secs.14 to 16 notwithstanding that the Court has found that the tenant's denial of the landlord's title does not involve forfeiture of the lease, or his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute."
"Significantly, the jurisdiction of the Civil Court can be invoked only where the Controller comes to a decision, and record a finding, that the denial or claim by the tenant, as aforesaid, is bona fide. If the controller were to come to the opposite conclusion, no question of invoking the jurisdiction of the Civil Court would arise. But the decision of the Controller is concerned solely with the bona fides and not the correctness or validity of the denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate Civil Court which is the more competent forum in such matters (See the principle discussed in Magiti Sasamal v. Pandab Bissoi, (1962)3 S.C.R 673:A.I.R 1962 S.C. 547. In such an event, the Civil Court will become competent to pass a decree for eviction on any of the grounds mentioned in Sec.10 or Secs.14 to 16. On the other hand, if the decision of the Controller is that the tenant's denial or claim is not bona fide the jurisdiction of the Civil Court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction, after affording the parties a reasonable opportunity of being heard, on any one of the grounds specified under the statute, including the ground that the tenant has, without bona fide denied the landlord's title or claimed right of permanent tenancy. What is significant is that the decision of the Controller, duly recorded by him, as regards the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the Civil Court. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the section is, therefore, incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and of no effect."
The other judgment relied on by Mr.K.Srinivasan is in the case of Natesan Pillai v. Sethumani Ammal, (1992) 1 MLJ 9: (1992) 2 L.W.564. In the said judgment Bellie, J., after referring East India Corporation Ltd., v. Shree Meenakshi Mills Ltd., AIR 1991 S.C.1094 : (1991) 2 L.W. 654 has held that, "It is the definite case of the plaintiff that the defendant is a tenant. Now, as per Sec.10(1) of the Act a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Secs.14 to 16. Therefore it is imperative that the plaintiff has to initiate proceedings for eviction against the defendant in a Rent Control proceedings. To this Sec.10(1) an exception is provided under the Second Proviso according to which where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial of title is bona fide and if he records a finding to that effect the landlord shall be entitled to sue for eviction in Civil Court and the court may pass a decree for eviction on any of the grounds mentioned in the said Section notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded."
In this case, in fact, the plaintiff has filed R.C.O.P.NO.17 of 1981, but however, stating that the defendant has denied the tenancy and claimed right to the property by virtue of an alleged agreement of sale, sought to withdraw the petition and the petition was accordingly dismissed as withdrawn. There was no finding of the Rent Controller as to whether there was denial of title by the defendant and the denial is bona fide. Therefore at that stage the landlord need not have withdrawn the petition and ought to have pursued it. This being the case, the present suit is not competent.
In
13. The above said decision clearly show that although the jurisdiction of the civil court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and the Supreme Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of theAct, otherwise than as stipulated by the Section, is therefore incompetent for lack of jurisdiction of the court and any decree of the court in such a subsequent decision of this court, I am in entire agreement with the arguments of the learned counsel for the respondents and consequently, confirm the judgment and decree of the lower appellate court, holding that the suit filed by the plaintiff is not maintainable."
13. In the aforesaid judgment, this court relied on the judgment of the Honourable Apex Court and arrived at the conclusion that such obtention of finding from the Rent Controller relating to bona fide denial of title is sine qua non for filing the civil suit. No contrary decision has been cited on the side of the respondents."
A mere running of the eye over the aforesaid excerpts would amply make the point clear that irrespective of the fact whether the defendants disputed the title or not, once the plaintiffs' approaches the civil court with a plaint pleading that the defendants' happened to be their tenant in a rent control area, then it is a must on the part of them to arm themselves as a sine qua non the Rent Controller's finding relating to the bona fide title dispute as per Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act. It is a wholesome provision intended to protect the right of the tenant. At times, some of the tenants, out of over enthusiasm or by way of over-reaching themselves would try to dispute the title of the landlord. Even in such cases, it is only the Rent controller, who is bound to look into the factual scenario and give a finding whether such denial of title is a bona fide one or not. If it is so, he would pass orders as otherwise, the mere denial of title itself would constitute a ground for eviction of the tenant and in fact, in some cases, the landlord would be benefited without taking up the arduous task of filing a regular suit before the civil court.
19. Hence, I could see no perversity or illegality in the orders passed by the first appellate court.
20. On balance, the substantial questions of law are answered to the following effect:
(i) The substantial question of law Nos.1 to 3 in S.A.No.1130 of 2001 are inter-linked and hence they are decided to the effect that the plaintiffs' in O.S.No.4239 of 1994 were not justified in straightaway filing a suit for eviction before approaching the Rent Controller and getting a finding under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act relating to bona fide nature of the plea of the occupiers of the suit property concerning title.
(ii) (a) The substantial question of law No.1 in S.A.No.1653 of 2001 is decided to the effect that the first appellate court was not justified in omitting to decide an issue when there are other issues also to be decided.
(b) The substantial question of law Nos.2 and 3 in S.A.No.1653 of 2001 are inter-linked and they are decided to the effect that so far as this case is concerned, the plaintiffs' in O.S.No.4919 of 1994 have not buttressed and fortified their plea found set out in their plaint.
21. In the result, both these second appeals are dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
Vj2 To
1. The VI Additional Judge, City Civil Court, Chennai
2. The XVII Assistant Judge, City Civil Court Chennai