Madras High Court
Subbiah Pannaiyar vs Shanmugavelayudham And Ors. on 13 August, 1996
Equivalent citations: (1997)1MLJ103
JUDGMENT S.S. Subramani, J.
1. Defendant in O.S. No. 435 of 1976, on the file of the District Munsif s Court, Tuticorin, is the appellant.
2. Suit filed by plaintiffs is one for declaration of title and recovery of possession.
3. It is said that the plaint schedule property originally belonged to the father of the defendant. On the death of the defendant's father, his right devolved on his two sons, namely, Ramiah Pannaiyar and Subbiah Pannaiyar (defendant). He had also a daughter by name Poongani Ammal. The appellant (defendant) and his brother obtained release of the right of Poongani Ammal and, therefore, the appellant and his brother became the absolute owners of the property. A partition was effected between the defendant and Ramiah Pannaiyar and the plaint property was allotted to the share of Ramiah Pannaiyar. Defendant was given some other property. First plaintiff purchased the plaint property as a vacant site from Ramiah Pannaiyar as per sale deed dated 16.5.1974. After purchase, he put up a hut therein. The defendant at that time was living in his family house, which got dilapidated and ruined. Therefore, the requested the first plaintiff to let out the suit hut in the plaint schedule property to him, and accordingly, first plaintiff let out the same to him at the rate of Rs. 5 per month. Defendant was paying rent till 30.9.1975 and then he defaulted to pay rent. The tenancy was terminated by notice. It is also said that the first plaintiff executed a gift in favour of second plaintiff as per document dated 20.9.1976. For the suit notice, defendant sent a reply raising frivolous contentions and he refused to surrender possession. Therefore, the suit was necessitated.
4. In his written statement, defendant contended that Ramiah Pannaiyar did not enjoy the suit property and that he (defendant) was enjoying the same and that he has planted three coconut trees and one lime and one orange plant. He denied the tenancy and said that he has prescribed title by adverse possession. He also disputed the validity of the gift and also the sale deed in favour of first, plaintiff. He said that he has sent a reply narrating the true facts, and therefore, he is not liable to be evicted from the property. He prayed for dismissal of the suit.
5. Trial court took both oral and documentary evidence. It marked Exs. A-1 to A-9 on the side of the plaintiffs and two witnesses were examined. P.W. 1 is the second plaintiff and P.W.2 is an independent witness. On the side of the defendant (appellant herein) Exs. B-1 to B-15 were marked. Defendant was examined as D.W.I and an independent witness was also examined as D.W.2.
6. Trial Court, after discussing the entire evidence, came to the conclusion that the plaintiffs are the absolute owners of the property, and that the sale deed Hx.A-1 is valid and Ramiah Pannaiyar was competent to execute the same. It also held that the gift deed executed by the first plaintiff in favour of the second plaintiff, as evidence by Ex. A-2 is also valid. It also held that there was a registered partition deed between defendant and his brother Ramiah Pannaiyar, and Ramiah Pannaiyar was the absolute owner of the property. It also came to the conclusion that the building was constructed by the first plaintiff and the residence of the defendant in the building in the property can only be as stated by plaintiffs. It also held that there no adverse possession or limitation. The suit was ultimately decreed with costs.
7. Aggrieved by the judgment, defendant preferred A.S. No. 177 of 1978, on the file of the Principal Subordinate Judge, Tuticorin. Lower Appellate Court also confirmed all the findings of the trial court and dismissed the appeal. It also held that the appellant is not entitled to any amount for the improvements. The finding of the lower appellate court was also that the plaintiffs came into possession of the land, and the building belongs to them, the same having been constructed by the first plaintiff.
8. It is against the concurrent judgments of both the Courts below, defendant has preferred this second appeal.
9. At the time of admission, the following substantial questions of law were formulated for consideration in this second appeal.
(1) Whether the courts below are right in passing a decree for possession, and (2) Whether the defendant is the tenant in respect of the suit property?
10. Learned Counsel for the appellant submitted that there is an allegation in the plaint that the defendant is a tenant is a tenant of the building and, therefore, a civil suit for recovery of possession is not maintainable. It is his case that the area in which the building is situated is coming with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and, therefore, without filing a rent control petition, a decree for recovery of the building cannot be sustained, and the plaintiffs cannot have a cause of action without moving the Rent Control Court. For the said purpose, learned Counsel relied on the following decision: East India Corporation Limited v. Shrea Meenakshi Mills Limited and P. Rukmani v. R. Narayani and six Ors. (1996) 1 L.W. 6.
11. The argument of the learned Counsel for the appellant seems to be attractive at the first blush. But, according to me, on the facts of this case, it cannot be said that the suit is not maintainable. In the decision cited by learned Counsel for the appellant, namely and (1996) 1 LW. 689, the subject-matter of the suit was only a building and the suit was one for recovery of possession after terminating the tenancy. If the subject-matter of the suit is building alone, probably the contention of the learned Counsel for the appellant can be appreciated. In the Supreme Court case cited supra, their Lordships have dealt with in paragraphs 7 and 10 the point regarding the eviction of a tenant from a building and found that unless there is a direction from the Rent Control Court to institute a suit for eviction of the tenant, the landlord will have no cause of action to institute a civil suit for eviction. Their Lordships further said that if in a suit initiated by the landlord there is no finding that the denial is not bona fide rent control proceedings will have to continue. But, if there is a finding by the Rent Controller that the denial of title of the landlord is bona fide it may refer the matter to a civil suit, and in such a context, the landlord will have a cause of action to institute a civil suit. It is better to extract paragraphs 7 to 10 of the said judgment which read thus:
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 Sections 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 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 10 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 as 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. See in this connection the principle stated by this Court in Dhulahhai v. State of Madhya Pradesh See also: Secretary of Stale v. Mask and Co. (1940) 2 M.LJ. 40 : A.I.R. 1940 PC. 105, Raleigh Investment Company Limited v. Governor General in Council and Barraclough v. Brown. Judged by this lest, 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 Section 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 claims 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 (he court may pass a decree for eviction on any of [he 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 Section 10(1) is She 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 Section 10 or Sections 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 records a finding, that the denial or claim by the tenant, as aforesaid, is bona fide. If the controller were to come lo 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 fide 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 In such an event, the civil court will become competent to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 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 to 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 with 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 is null and void and of no effect.
The said decision was followed by a learned Judge of this Court in the latter decision relied on by learned Counsel for the appellant P. Rukmani v. R. Narayani (1996) 1 L.W. 689. in that case, it is also stated that the subject-matter is only a building and the suit was one for recovery of the building on the basis of rental arrangement. Following the decision of the Supreme Court, it was held that the suit as framed was not maintainable and a decree for recovery of possession cannot be maintained.
12. The said decisions may not fully apply to the facts of this case. The property scheduled to the plaint is not only a building but also the property where it is situated, i.e., property of an extent of 2 1/2 cents and the hut situated therein without door number. The suit was one for declaration of title in respect of the land and building and the recovery is sought for in respect of the land also. Even before the institution of the suit, a notice was issued by the plaintiff stating that the first plaintiff has purchased the property and he has gifted the same to the second plaintiff and he also said that he has put up the construction. In the reply notice, the appellant questioned the validity of the same and also the ownership over the building. He also said that he is not a tenant of the building and that he has improved the land. He also contended that he has prescribed title by adverse possession over the land also.
13. The allegation in the plaint (paragraph 4) regarding the tenancy reads as follows:
First plaintiff purchased the suit property from the owner Ramiah Pannaiyar under registered document on 16.5.1974 for valuable consideration. The sale deed was executed in favour of first plaintiff by Ramiah Pannaiyar for himself and as guardian of his minor children. After sale, first plaintiff put up a hut therein. Defendant herein who was living in the family house which fell to his share sold that house and asked first plaintiff to let the hut in the plaint schedule to let the hut in the plaint schedule property to him and first plaintiff let the same to the defendant herein at the rate of Rs. 5 per month. Defendant was paying rent tili 30.9.1975 and then he defaulted to pay....
So, the letting is only regarding the hut.
14 In Dr. Ranbir Singh v. Asharfi Lal , the Supreme Court considered the scope of an eviction suit between a landlord and tenant. In that case, their Lordships held that "the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy." [Italics supplied]. Their Lordships further went on to say that "in a suit for eviction based on such relationship the court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title is disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties, In order to decide whether denial of landlord's title by the tenant is bona fide the court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the court has to see whether the tenant's denial of title of the landlord is bona fide in the circumstances of the case."
15. Second proviso to Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act reads thus:
Provided further that where the tenant denies the title of the landlord of 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 court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
[Italics supplied]
16. Now, let us see what is the definition of 'landlord' under the Rent Control Act. It is defined as "includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant."
17, A reading of the definition of the word 'landlord' shows that it is a contract with another person which enables him to receive rent and the same has nothing to do with the title to the property or to the building. It is a contractual right that gives the person the status of a landlord. It is that status or contract, if denied by the person in occupation, gives the jurisdiction of the Rent Controller to decide the question whether that contention is bona fide or not, It is not the title over the property or the building that is the matter in issue. As held in the decision reported in Dr. Ranbir Singh v. Asharfi Lal , the absolute title over the building and the land is the germane in a suit between the landlord and the tenant. It is only the proof of the contract that gives the person the status of a landlord, which enables him to get eviction. So, naturally, the exclusion of jurisdiction contemplated in the decision reported in East India Corporation Limited v. Shree Meenakshi Mills Limited , can only be confined as to the denial of the status of landlord and not regarding the title to the building. To that extent, the civil court will have jurisdiction. That is, the civil court is competent to decide as to the ownership over the property and ownership over the building. That is not something which comes within the jurisdiction of the Rent Controller. I reiterate that the scope of enquiry under second proviso to Section 10(1) of the Rent Control Act is confined to the status of landlord and tenant, which has nothing to do with title to the property.
18. In the Supreme Court decision cited supra, namely, Dr. Ranbir Singh v. Asharfi Lal , their Lordships also said that even if title is proved, and the contract is not proved, the owner may not be entitled to recover the property. That also strengthens my finding that so far as the ownership of the building and the title to the property is concerned, the Second Proviso to Section 10(1) of the Rent Control Act will not be a bar.
19. But I agree with the learned Counsel for the appellant that the right of the plaintiffs to recover the building on the basis of the rental arrangement will be barred in view of the decision cited above. But that will not affect the maintainability of the suit. Ishar Singh v. National Fertilizers , their Lordships were considering the scope of bar of jurisdiction of civil court in a suit where the relief is sought for were, (1) correction of date of birth, and (2) recovery of backwages or reinstatement of a dismissed workman. Part of the reliefs prayed for was barred under the Industrial Disputes Act. The question was, whether the entire suit could be dismissed. Their Lordships held thus:
Law is settled that matters which come within the purview of Section 9 of the C.P.C. are maintainable in the civil court. A suit for correcting the date of birth in the record would be maintainable in civil court. In fact, asking for a correction of that type may be for various purposes and need not necessarily be confined to the question of claiming the relief (Superannuation as per corrected date of birth in instant case) available under the Industrial Disputes Act. Where the suit for correction of date of birth is filed before an employee is superannuated on basis of the date of birth on record none of the situations contemplated under Section 2-A of the Industrial Disputes Act had happened so as to give the employee a cause of action to approach the Industrial Court. The maintainability of the suit has to be decided with reference of the suit has to be decided with reference to the date of institution of the proceeding and since on the date when the civil suit was filed none of the eventualities covered by Section 2-A had happened, he could not have approached the forum under the 1947 Industrial Disputes Act for relief. Thus the civil suit would not be barred by Section 2-A of the Industrial Disputes Act.
If for part of the reliefs the suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out its doors to the suitor. In that view of the matter, so far as the relief of rectification of the record relating to the date of birth is concerned, the civil court had jurisdiction to grant that relief. However, where the employee stood superannuated even on basis of the corrected date of birth by the time the civil suit came to be decided in his favour, the relief of backwages could not be granted by the civil Court. The employee can avail of the remedy under Section 33-C(2) of the Industrial Disputes Act.
20. If it is found that the suit is maintainable in so far as title to the property and title to the building are concerned, it cannot be said that it is bar under Section 9 of the Code of Civil Procedure or on the second proviso to Section 10(1) of the Rent Control Act. At the most, it can be held that the plaintiff will not be entitled to get recovery of the building, and to that extent, the relief cannot be granted. I am supported to hold the said view in the light of the decisions reported in Life Insurance Corporation of India v. India Automobiles and Company and Ors. and Mariyappanassari v. Amaravathy Animal (1995) 1 Ker. L.J. 33.
21. In Life Insurance Corporation of India v. India Automobiles and Co. and Ors. (1990) 4 S.C.C. 286 at 300, in paragraph 21 of the judgment, their Lordships held thus:
We think that this contention is well founded. There are clear indications in the Act and rules that the Rent Controller does not have the jurisdiction to decide questions of title. In a proceeding under the Act, where it be for fixation of fair rent or eviction, the tenant may raise several objections. He may, inter alia, take up the point that the opposite party is not the "landlord". The definition of "landlord" under the Act is very wide and encompasses not only an owner but also persons "receiving or entitled to receive the rent of the building which has been let out or would be entitled to receive the rent of the building if it were let out to a tenant" in one of several capacities. Denial of title of the landlord is itself one of the grounds on which eviction can be sought (Section 10(2)(vii). Sri Krishnamurthy Iyer is, therefore, certainly right in contending that the Act requires the Rent Controller to consider the issue, among others, while disposing the applications before him. But, we think, Sri Parasaran is right in saying that, since the Rent Controller has no jurisdiction to entertain an application except by a landlord or a tenant, the question of title to the property is one on which his very jurisdiction depends. It cannot be described as a matter that is squarely and directly in issue in these proceedings to which any finality can be attached, as the Rent Controller, by deciding the issue wrongly, cannot clothe himself with jurisdiction where none exists. All that the Rent Controller has to do is to satisfy himself that the person seeking eviction or fixation of fair rent is a "landlord" who was, prima facie, the right to receive the rents of the property in question. That the Rent Controller's jurisdiction on this issue is limited is clear from the proviso to Section 10(1) of the Act. In order to decide whether the denial of the landlord's title by the tenant is bona fide, the Rent Controller may have to go into the tenant's contention on the issue but he is not to decide the question finally. He has only to see whether the tenant's denial of the landlord's title is bona fide in the circumstances of the case. He may reach a conclusion, on the merits, that the landlord has title; yet he cannot order eviction if the tenant's action in denying the title was bona fide. Per contra, he may reach the conclusion on the materials before him that the landlord has not title; yet, it seems if he finds that the applicant is otherwise a landlord and that the grounds on which the tenant's denial was based were not bona fide, he will have to order eviction.
It was further clarified by their Lordships in paragraph 23 thus:
We are of opinion, in the light of the decided cases referred to above, that the contention on behalf of the respondents has to be accepted. We are concerned with the jurisdiction of a civil court. The extensive jurisdiction conferred on civil courts under Section 9 of the Code of Civil Procedure should not be curtailed without a specific statutory warrant or except on some clear principle. There is nothing in the Tamil Nadu Rent Control Act which, in any way, takes away, or narrows down, the civil court's jurisdiction as, for example, there is in the Delhi Rent Control Act (Section 50). As to principle, whether we look at it one the analogy of res judicata or adopt the approach of Sri Iyer as to whether the order in the earlier proceedings is to be treated as an order that is null and void or merely one that is valid until set aside, the answer has to turn on the true nature and scope of the jurisdiction conferred on the Rent Controller under the Act. Is it possible, we have to ask ourselves, having regard to the context, scheme and terms of the legislation, that the statute could have envisaged the Rent Controller (and the authorities to who appeal or revision could be preferred from his orders) to be final authorities to adjudicate on issues of title also? The answer, in our opinion, has to be in the negative. Section 4 of the Rent Control Act, as already pointed out, provides only a machinery for fixation of far rent in respect of certain premises. It is the quantum of fair rent that arises for determination by the Rent Controller. There is no doubt that, since an application for this purpose cannot lie except at the instance of a landlord or a tenant, the Rent Controller has to deal with this incidentally, but this is not one of the direct issues before the Rent Controller. If, and only if, this relationship exists between the parties, the Rent Controller steps in for a limited purpose - to determine what the fair rent is - and then fades out of the picture. Where a fair rent is fixed by a Controller, the Rent Control Act does hoi provides for a machinery for recovery of the amount. The amount has to be recovered by the landlord only by recourse to a civil court. This gives an indication that the determination of the relationship that gives rise to the application is also not conclusive. This is indeed made clear by he provisions relating to eviction. We have already referred to the effect of the provisions of Section 10(2)(ii) read with the proviso to Section 10(1) and pointed out how jurisdiction to decide questions of title is denied to the Rent Controller....
[Italics supplied]
22. In Mariyappanassari v. Amaravathy Ammal (1995) 1 Ker.L.J. 33, a similar question came for consideration. In that case, a learned Judge of the Kerala High Court considered the decision of the Supreme Court reported in East India Corporation Limited v. Shree Meenakshi Mills Limited . Section 11(1) of she Kerala Buildings (Lease and Rent Control) Act, 1965 is the same as Section 10(1) of the Tamil Nadu Rent Control Act. While discussing the scope of Section 11(1) of the Kerala Rent Control Act, it was held thus:
...the bar under Section 11(1) is attracted only in a case where the subject-matter of the suit is a building as defined in the Rent Control Act and not in a case where title to the land and a claim of fixity under the Kerala Land Reforms Act are involved. If in a given case the claim is only as regards a building on the basis that the same had been let out to a tenant and the Rent Control Act applies to the area in question, the ratio of the decision in East Corporation Limited case , would be attracted.
23. When a claim of exclusion of jurisdiction of a civil court is raised, it is settled law that the exclusion of jurisdiction is not to be taken for granted. Even if there is exclusion, the interpretation regarding the exclusion has to be strictly construed only to the limited scope of exclusion of jurisdiction. It is the presumption of law that any suit of a civil nature is entertain able in a civil court, unless it is expressly or impliedly barred.
24. In view of the settled position of law, the plaintiffs are entitled to maintain the civil suit insofar as the title to the land and building are concerned, and also for recovery of the land which are the subject-matter of the land. These issues cannot be covered or could be matters in issue under the Rent Control Act.
25. Regarding the title to the land and building, no serious argument was put forward by learned Counsel. It is admitted that the property belonged to the appellant's father and later there was a partition between the brothers. It is also not in dispute that the plaint item was allotted to the share of Ramiah Pannaiyar and the first plaintiff purchased the same and subsequently gifted it to the second plaintiff. So, the title to the land covered by Ex. A-1 is proved.
26. In so far as the building is concerned, both the Courts below have held that the defendant could not have constructed the building, and, on appreciation of evidence, it came to the conclusion that the same was constructed by the first plaintiff after the execution of Ex. A-1 sale deed. The ownership over the building also cannot be challenged.
27. Even though both the courts below have held that there is rental arrangement in respect of the building, and the plaintiffs are entitled to recover, I hold that those findings have to be set aside since it has no jurisdiction to decide the same. Recovery of possession of the building granted on the basis of the rental arrangement also will have to be consequently set aside. That is a matter which a Rent Controller can decide.
28. To sum up, the substantial questions of law are answered as follows:
The findings of both the courts below that the plaintiffs are entitled to recover possession of the land is correct. But, in respect of the building, I hold that the civil court has no jurisdiction. To that extent, the first question of law is found in favour of the appellant. On the second question, namely, whether the defendant is a tenant, I hold that it is a matter to be decided by the Rent Controller and, therefore, the finding by the trial court as confirmed by the lower appellate court has to be set aside.
29. In the result, the second appeal is all wed in part, as indicated above. A decree will be granted to the plaintiffs as follows:
Plaintiffs' title to the land and building is declared. Plaintiffs are allowed to recover the property excluding the building from the defendant. The other reliefs, so far as the building is concerned, are refused. There will be no order as to costs.