Madras High Court
Saradambal vs Santhi on 24 February, 2012
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24/02/2012
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
SA(MD)No.1023 of 2011
and
MP(MD)No.2 of 2011
Saradambal
.. Appellant/Respondent/
Defendant
Vs.
1.Santhi
2.Muthuraj
3.Rani
4.Rajalakshmi
5.Manjula
6.Venkatesh .. Respondents/Appellants/Plaintiffs
Second Appeal filed under section 100 of CPC against the Judgment and
decree dated 26.06.2009 passed in Appeal Suit No.75 of 2008 by the Additional
Sub Court, Kumbakonam reversing the Judgment and decree dated 07.02.2008 passed
in Original Suit No.69 of 2004 by the Principal District Munsif Court,
Valangaiman at Kumbakonam.
!For Appellants ... M/s.Sivathilakar
^For Respondents ... Mr.T.V.Sivakumar
:JUDGMENT
This Second Appeal has been directed against the Judgment and decree dated 26.06.2009 passed in Appeal Suit No.75 of 2008 by the Additional Sub Court, Kumbakonam, wherein the Judgment and decree passed in Original Suit No.69 of 2004 by the Principal District Munsif Court, Valangaiman at Kumbakonam are reversed.
2. The respondents herein as plaintiffs have instituted Original Suit No.69 of 2004 on the file of the trial Court for the reliefs of declaration and recovery of possession, wherein the present appellant has been shown as sole defendant.
3. In the plaint it is averred that the suit property consists of a thatched house and also a vacant site. The suit property is comprised in R.S.No.100/2. The plaintiffs are the absolute owners of the same. The house which is mentioned in the suit property is bearing door No.12/A. The suit property has been purchased by Panchanatham Padayachi from one Arunachala Naickar under a registered sale deed dated 05.09.1949. The predecessor viz., Panchanatham Padayachi has resided in the suit property till his demise and after his death, his wife Kosalai Ammal and his son Kalia Perumal have inherited his estate including the suit property. They have also enjoyed the suit property till their demise. The plaintiffs are the legal heirs of Kaliya Perumal through his two wives. The defendant has been enjoying the suit property as a tenant and she has not paid rent regularly. The tenancy right of the defendant has been terminated by way of issuing a legal notice dated 22.03.2000. Even after receipt of notice, the defendant has shown supine indifference in vacating the suit property. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint.
4. In the written statement filed on the side of the defendant it is averred that the description of suit property given in the plaint is admitted. With regard to suit property only Rent Control Act is applicable and the present suit is not legally maintainable. The alleged predecessors in title of the plaintiffs have had no right, title and interest over the suit property. The husband of the defendant has resided in the suit property not as a tenant. Already Kosalai Ammal has filed RCOP No.5 of 1993 and the same has been dismissed for default. The defendant is the owner of the suit property and there is no relationship of landlord and tenant between the plaintiffs and defendant. The defendant has given a suitable reply notice by way setting up title to the suit property upon herself. The defendant has been enjoying the suit property as its rightful owner and thereby perfected title to the same by adverse possession and there is no merit in the suit and the same deserves to be dismissed.
5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiffs as appellants have preferred Appeal Suit No.75 of 2008 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the Appeal and thereby set aside Judgment and decree passed by the trial Court and consequently decreed the suit as prayed for. Against the Judgment and decree passed by the first appellate Court, the present Second Appeal has been preferred at the instance of the defendant as appellant.
7. As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission.
8. On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration:
(a) Whether the first appellate Court is correct in disposing the appeal without framing an issue regarding the maintainability of the suit on the face of the pleading raised by the plaintiff that the superstructure was leased out to the appellant as a tenant in 1993?
(b) Whether failure to pay the rent and attornment of tenancy by the appellant from 1993 will confer jurisdiction of the lower Court to entertain a suit for recovery of possession of the suit property on the face of the ouster of jurisdiction under section 9 of CPC?
(c) Whether or not the first appellate Court is correct in dismissing in decreeing the appeal when comes to a conclusion that the commencement of tenancy of the appellant was not established by the plaintiffs?
(d) Whether the decree and Judgment of the lower appellate Court is liable to be reversed for non consideration of relevant evidence available on record?
9. The sum and substance of the case of the plaintiffs is that the suit property is comprised in Survey No.100/2 and the house which situates therein is bearing door No.12/A. The suit property is originally belonged to one Arunachala Naickar and he sold the same under a registered sale deed dated 05.09.1949 in favour of Panchanatham Padayachi and after his death the suit property has been enjoyed by Kosalai Ammal and his son by name Kalia Perumal and after their demise, the present plaintiffs being the legal heirs of Kalia Perumal through his two wives have become absolute owners of the suit property and the husband of the defendant has been allowed to enjoy the suit property as a tenant and after his demise, his wife namely, the defendant has been enjoying the same and since the defendant has not paid monthly rents properly the tenancy right of the defendant has been terminated by way of giving legal notice. But the defendant has given a false reply notice, wherein she sets up title to the suit property upon herself. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
10. The defence put forth on the side of the defendant is that the alleged predecessors in title of the plaintiffs are not the owners of the suit property and they never enjoyed the same. The husband of the defendant has had enjoyed the suit property till his demise and after his demise, the defendant has been enjoying the suit property as a rightful owner and further the suit property comes within the contour of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the present suit is not legally maintainable and therefore, the same deserves to be dismissed.
11. The trial Court after considering the rival evidence adduced on either side has dismissed the suit. But the first appellate Court has decreed the suit as prayed for. Apart from the substantial question of law raised on the side of the appellant/defendant, the Court has to formulate a vital substantial question of law to the effect "as to whether Civil Court is having jurisdiction to entertain the present suit in view of the denial of title to the suit property made on the side of the appellant/defendant?
12. The learned counsel appearing for the appellant/defendant has contended that there is no nexus between the plaintiffs and defendant with regard to suit property and in fact no relationship of landlord and tenant has been in existence between them and even in the reply notice the defendant has set up title to the suit property upon herself and also explicitly denied the alleged title of the plaintiffs and since the suit property comes within the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the plaintiffs ought to have filed a proper petition under section 10 of the said Act. But they have not done it. The first appellate Court without considering the above legal infirmities which are in existence on the side of the plaintiffs has erroneously decreed the suit and therefore, the Judgment and decree passed by the first appellate Court are liable to be set aside.
13. The learned counsel appearing for the respondents/plaintiffs has contended that prior to institution of the present suit, a legal notice has been issued for the purpose of terminating tenancy right of the defendant. The defendant has received the same and chosen to give a reply notice by way of setting forth absolute right, title and interest over the suit property upon herself. Under the said circumstances the present suit has been instituted and therefore, the plaintiffs need not file any petition under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the first appellate Court after considering the nature of denial put forth on the side of the defendant has rightly decreed the suit and therefore, the Judgment and decree passed by the first appellate Court need not be interfered with.
14. It is an admitted fact that the suit property comes within the purview of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and further it is seen from the records that already a proceeding has been initiated under the said Act and subsequently not pressed. Therefore, it is easily discernible that with regard to suit property the relevant provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 are applicable.
15. In the written statement filed on the side of the defendant in various places it has been explicitly stated to the effect that the plaintiffs are not the owners of the suit property and the husband of the defendant has had enjoyed the same as a rightful owner and after his demise, the defendant has been enjoying the same as absolute owner and therefore, the plaintiffs are not having locus standi to institute the present suit.
16. Even from a cursory look of the averments made in the plaint it is pellucid that there is a clear denial of title to the suit property on the side of the appellant/defendant. It has already been pointed that the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 are squarely applicable to the suit property.
17. The entire contention put forth on the side of the appellant/defendant is based upon the proviso clause which is available in section 10(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the same reads as follows:
Eviction of tenants.-(1)A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 14 to 16:
Provided that nothing contained in the said Sections, shall apply to a tenant whose landlord is the Government:
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 that 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 Courts finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
18. Even a mere reading of the said provision would clearly go to show that a tenant shall not be evicted except in accordance with the provisions of section 10 or sections 14 to 16 of the said Act and further it is made clear that if a tenant denies title of landlord or claims right of permanent tenancy, the Rent Controller shall decide as to whether the denial or claim is bona fide and if he records a finding to that effect, the landlord is entitled to institute a suit for eviction of tenant through Civil forum.
19. In the instant case denial of title of the plaintiffs to the suit property is rampant. Even at the risk of repetition the Court like to point out that in the reply notice itself the defendant has denied title of the plaintiffs and sets up absolute right, title and interest upon herself. But inspite of clear denial of title put forth on the side of the appellant/defendant, the plaintiffs have erroneously filed the present suit for getting the reliefs of declaration and recovery of possession.
20. The learned counsel appearing for the respondents/plaintiffs has made an abortive attempt so as to distinguish the existing legal provision on the basis of the facts which are available in the present case. The learned counsel appearing for the respondents/plaintiffs has contended to the effect that since the appellant/defendant has set up absolute right, title and interest over the suit property upon herself, the proviso clause which is available in section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not at all applicable.
21. In order to clinch the point that has been raised on the side of the respondents /plaintiffs, the Court has to rely upon the decision reported in AIR 1991 Supreme Court 1094 (M/s.East India Corporation Ltd Vs. Shree Meenakshi Mills Ltd), wherein the Honourable Apex Court has held that "if a tenant denies title of a landlord by way of setting up title upon a third party or setting up title upon himself or herself, as per proviso mentioned in Section 10(1) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960, the only remedy which is available to landlord is to file a petition under the said Section for getting a finding to the effect as to whether denial of title is bona fide or not. Only after getting such finding, the landlord can approach a Civil Court for getting proper reliefs."
22. In the instant case even though a specific denial of title has been made even in the reply notice, the plaintiffs have not chosen to invoke the provision of section 10(1) of the said Act and straight away they filed the present suit. On the basis of the decision referred to supra it is needless to say that the present suit is not at all maintainable. The first appellate Court without considering the correct legal position has erroneously decreed the suit as prayed for. In view of the foregoing elucidation of both the factual and legal aspects, this Court is of the view that the Judgment and decree passed by the first appellate Court are totally erroneous and the same are liable to be set aside.
23. In fine, this Second Appeal is allowed without cost and the Judgment and decree passed in Appeal Suit No.75 of 2008 by the Additional Sub Court, Kumbakonam are set aside and the Judgment and decree passed in Original Suit No.69 of 2004 by the Principal District Munsif Court, Valangaiman at Kumbakonam are restored. However, the plaintiffs are at liberty to invoke the relevant provisions of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960. Connected Miscellaneous Petition is closed.
mj To
1.The Additional Sub Court, Kumbakonam
2.The Principal District Munsif Court, Valangaiman at Kumbakonam