Madras High Court
Fathima Automobiles vs P.K.P. Nair on 6 March, 1986
Equivalent citations: (1986)1MLJ216A
ORDER Shanmukham, J.
1. The obstructor whose resistance to delivery of possession was ordered to be removed in M.P. No. 943 of 1980 in E.P.No. 762 of 1980 on the file of the IX Judge, Court of Small Causes, Madras, is the petitioner.
2. In the course of my order the petitioner in H.R.C.O.P will be referred to as the respondent, the respondents 1 and 2 therein as joint tenants or tenants, the 3rd respondent, as the sub-tenant, Dhanabagiammal as owner and the obstructor as the petitioner. The relevant facts to be noticed are, as follows: H.R.C.NO.986 of 1977 was instituted by the respondent for eviction of his joint tenants and his sub-tenant. The eviction was sought for on three grounds, particulars of which are not necessary. The application itself was presented on 14.3.1977. The joint tenants made an endorsement on 21.12.1977 to the effect that they vacated the petition premises on 30.9.1976. Learned Counsel for the respondent made an endorsement to the effect that the tenants had not delivered vacant possession to the respondent and that he does not admit the above allegation, as there is wrongful sub-letting. Learned Counsel for the sub-tenant made an endorsement on 14.3.1979 to the effect that he had vacated and under instructions from his landlords, the tenants, the key had been handed over to the landlady Dhanabagiammal and that there is no need for any evidence to be adduced by the sub-tenant either oral or documentary. After these two endorsements referred to above, the tenants did not participate in defending the said proceeding. Though the sub-tenant participated in the inquiry, he did not adduce any evidence while the respondent as P.W. 1 tendered evidence on his side. After hearing arguments, the learned Rent Controller passed an order of eviction. He found that though the tenants have made endorsement to the effect that they had vacated the premises, it is the unchallenged evidence of P.W. 1 that the sub-tenant is still occupying the demised premises. It is this order of eviction that was put in execution in E.P.No. 762 of 1980, Pursuant to the order for delivery made by the Court below when the bailiff was taken there was resistance at the instance of the petitioner herein and also of one V.P. Muralldharan The respondent therefore came forward with M.P.No. 943 of 1980 for removal of obstruction caused by the present petitioner and the said Muralldharan, The Court below directed the removal of obstruction. Hence, this revision by the petitioner alone, but not by the other obstructor.
3. It is also relevant to notice that the respondent is admittedly a tenant under Dhanabagiammal, the owner. Her attempt to recover possession from her tenant, the respondent herein failed, because the suit filed by her was dismissed. So too, it is admitted by the sub-tenant that his landlords are the joint tenants.
4. Mr. Ramanathan, learned Counsel for the petitioner relied very much upon Section 52 of Transfer of Property Act. According to the learned Counsel, as per the endorsement made by the tenants dated 21.12.1977, they vacated the premises on 30.9.1976 i.e, long before the petition for eviction came to be presented. Therefore, the right acquired by the petitioner from Dhanabagiammal will not be affected by the eviction order. He further submitted that the petitioner does not claim from the judgment-debtors; on the other hand, he claims, his right to be in possession under Dhanabagiammal the owner. Consequently, the respondent's remedy is not under Order 21, Rule 97, Code of Civil Procedure, but only lay in a separate suit. He further contended that the petitioner had no knowledge of these proceedings, that the order of eviction is a collusive transaction and that at any rate, there is no finding when dispossession took place. A reference is also made to the fact that the present petitioner is not a party to he rent control proceeding.
5. After my anxious consideration, I find the argument resting on Section 52 of Transfer of Property Act has no relevance to the facts in this case. Even several citations brought to my notice by the learned Counsel for the petitioner are therefore of no use to the petitioner. First of all, the learned Counsel is under the misapprehension that the endorsement made by the tenants should be accepted as gospel truth. 1 am to point out that the endorsement has no more value than than of an averment in the pleadings. Any averment in the pleadings will not stand proved automatically, but has to be proved not by me, who did not participate in the inquiry; in other words they did not adduce any evidence in support of their self-serving statement which had not been proved. Further it is significant to notice that the endorsement is silent as to whom the tenants delivered possession. It is here, the endorsement of the sub-tenant gains significance and certainly speaks in favour of the respondent. According to the subtenant, he delivered possession to the owner Dhanabagiammal under instructions of his landlords, viz., the tenants. Again, this endorsement makes no reference to the date when such delivery was made to the owner. On the other hand, the endorsement is dated 14.3.1979, two years after the institution of the eviction proceeding. Again, the sub tenant though participated in the inquiry did not adduce evidence to support his endorsement. It is therefore the court below accepted the evidence of P.W. 1 that the petition premises as on the date of the petition and even thereafter was with the subtenant and therefore, passed as order of eviction.
6. It is now useful to refer to Section 26 of Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act. It provides, Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants who were made parties in the application for eviction but any person who became a sub-tenant after the date of the application for eviction shall be bound by the order of eviction and be evicted as if he were a party to the proceedings, provided that such order was not obtained by fraud or collusion.
By virtue of Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the provisions in Order 21, Code of Civil Procedure in so far as they relate to delivery of possession are made applicable to the execution proceedings under the Rent Control Act. Order 21, Rule 98(2) provides, Where, upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceedings, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
A comparison of Section 26 of the Act and Order 21, Rule 98(2) will reveal that lection 26 has specifically provided for a situation envisaged by Order 21, Rule 98(2) as regards a person claiming under the Judgment-debtor or a transferee pendente Lite. In this case, the sub-tenant is the 3rd respondent in H.R.C.O.P. It is further proved both by P.W. 1 and by the endorsement made by the learned Counsel for the sub-tenant that under instructions of his landlords, viz, the tenants, the sub-tenant delivered possession to the owner Dhanabagiammal after the institution of the rent control proceedings. It is here, it is important to recall that Dhanabagiammal could not recover possession from her tenant, the respondent herein (the petitioner in rent control proceeding). Indeed, as late as 23/2/1981, she had sent a lawyer's notice to the respondent herein threatening him with a suit in ejectment and calling upon him to furnish her with the names and addresses of all tenants in respect of the petition property. At this stage, it is convenient to advert to the argument advanced by the learned Counsel for the petitioner that there was no need for owner Dhanabagiammal to refer to her having taken possession of a part of the premises which is now in the occupation of the petitioner/obstructor and that therefore, non-reference to the same in Ex.P-3, the sid reply notice will in no way impair the petitioner's contention. The above argument is hardly tenable because of the Schedule in Ex.P-3. A reference to the Schedule shows that the property in its entirety is referred to therein and that no portion was excluded. Thus at the time when Dhanabagiammal is said to have recovered possession from the sub-tenant, the respondent's right as a lessee under her subsisted both factually and legally. In other words, possession of the property was not with her, but with her tenant the respondent herein. Consequently, at the time when Dhanabagiammal recovered possession from the sub-tenant, the right she acquired is the one that was possessed by the sub-tenant. As long as the tenancy in favour of the respondent granted by the owner was not snapped as provided in law, in so far as the said tenancy subsisted and in so far as the possession of the demised property as a whole is with the respondent, there can be no merger of the right of the respondent as a lessee with the owner. Then, it is obvious that Dhanabagiammal obtained possession of the portion now in the occupation of the petitioner after an order of eviction was passed and from a sub-tenant who is bound by the order of eviction under Section 26 of the Act. Again, Section 26 mandates that any person who became a sub-tenant after the date of the application for eviction shall be bound by the order of eviction and be evicted as if he were a party to the proceedings, provided that such order was not obtained by fraud or collusion. Dhana bagianimal will therefore be a sub-tenant in the eye of law on the facts in this case and therefore, she is bound by the order of eviction and is liable to be evicted as if she were a party to the eviction proceeding, in this case, there is no scope for the contention that the order was obtained by fraud or collusion, for the simple reason that it is neither pleaded in the counter statement filed by the petitioner herein, nor is there any evidence of his side. Thus, there is no escape from j the conclusion that the order of eviction is binding not only on the sub-tenant who is a party, but also on Dhanabagiammal who obtained her right after the date of application for eviction and whose status in the eye of law is no more than a sub-tenant. The petitioner only claims from Dhanabagianumal who is bound by the order of eviction. Then, he cannot claim any higher right than that of Dhanabagiammal, who inducted him admittedly into possession albeit she happens to be the owner. If so his obstruction is liable to be removed.
7. Further, it is patent from the facts that the sub-tenant admittedly claimed under the judgment-debtors (the joint tenants), that Dhanabagiammal claims only Under the sub-tenant and that the present petitioner through Dhanabagiammal. Then, there is no difficulty in holding that the petitioner is a transferee from another transferee pendente lite and that therefore, even under Order 21,rule 98, such resistance is liable to be removed. The argument that there was no finding as to when dispossession occasioned, is quite incorrect, For after referring to the proceeding" between the owner and her tenant, the respondent and also to the endorsement made by the sub-tenant on 14.3.1979 and other relevant factors, particularly Ex P-3, the court below specifically found that Dhanabagiammal's evidence that she let out the property to the petitioner by 1977 end, is hardly believable.
8. So too, the contention that the petitioner had no knowledge of all these proceedings and took the tenancy from the owner bona fide, will in no way improve the petitioner's position, because he could acquire in law the right that was then inhered in Dhanabagiammal. I have already pointed out that such a right was only that of a sub-tenant.
9. I need only refer to the decisions brought to my notice by the learned Counsel for the petitioner, viz., Rajender Singh and Ors. v. Santha Singh and Ors. ; Kashiprasad Sukhiram v. Bedprasad Parmeshwar A.I.R. 1940 Nagpur 113; Mahabala Bhatta and Anr. v. Achetoppada Channappa Govind and Anr. A.1.R. 1989 Mysore 346 : (1969) 1 Mysore L.J. 415, A. Ghose Khan and Ors. v. The Rent Controller (District Munsif of Coimbatore), Coimbatore and Ors. (1981) 2 M.L.J. 388 : (1982) 2 R.C.J. 83 : (1981) 94 L.W. 568, O.R. Seshadri and Ors. v. B. Sudarsana Gupta (1981) 2 M.L.J. 239 : (1981) 94 L.W. 481, and Maroti and Anr. (1981) Krishna Rao A.I.R. 1925 Nagpur 455 which I had already pointed out, have no relevance to the facts in this case.
10. In the result, 1 hold that the? orders passed by the Courts below are perfectly correct and do not call for interference. Accordingly, the revision fails and is dismissed, but without costs. Time to vacate four months.