Madras High Court
Shaporji Pollonji And Company (P.) Ltd. ... vs A. Nishat And Anr. on 13 August, 1990
Equivalent citations: (1991)229MLJ1
ORDER V. Ratnam, J.
1. The teriants, against whom the Appellate Authority had passed an order for eviction, on an application taken out by the respondents herein in R.C.O.P. No. 134 of 1983 under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 10 of 1960, as amended by Act 23 of 1973 (hereinafter referred t(c) as 'the Act') are the petitioners in this civil revision petition. There is no dispute that the respondents herein are the landlords of the premises in the occupation-of the petitioners and that they had purchased the premises in moieties under Exs. A-1 and A.2 dated 25.6.1980. In R.C.O.P. No. 134 of 1983 before the Rent Controller (Additional District Munsif), Salem, the respondents prayed for an order of eviction against the petitioners on the ground that they had purchased the property in the occupation of the petitioners for their own use and enjoyment and that they also bona fide required the premises for that purpose. The application was resisted by the petitioners on the ground that two separate applications for eviction should have been filed by the respondents and that the respondents were not entitled to maintain the application under Section 10(3)(a)(i) of the Act, and further that their requirement was not bona fide.
2. Before the rent controller, on behalf of the respondents Exs. A-1 to A-18 were marked and the first respondent gave evidence as P.W. 1, while on behalf of the petitioners, the second petitioner was examined as R. W. 1. On a consideration of the oral as well as the documentary evidence, the learned rent controller found that the respondents have not made out their bona fide requirement of the premises in the occupation of the petitioners and, therefore, the respondents are not entitled to an order for eviction. On those conclusions, the application for eviction filed by the respondents was dismissed. Aggrieved by that, the respondents herein preferred an appeal in R.C.A. No. 19 of 1989 before the Appellate Authority (Principal Subordinate Judge) Salem. On a consideration of the evidence the Appellate Authority found that the application filed by the respondents praying for eviction of the petitioners was maintainable and that the respondents were also entitled to an order for eviction against the petitioners under Section 10(3)(a)(i) of the Act, as their requirement was bona fide. In the result, the Appellate Authority allowed the appeal and ordered that eviction of the petitioners from the premises in their occupation.
3. Learned Counsel for the petitioners first contended that the application for eviction filed by the respondents under Section 10(3)(a)(i) of the Act should not have been entertained, as the respondents ^came to own and possess interest in another premises, which belonged to their deceased mother and which, on her death, had devolved upon the respondents, their sisters and father. On the other hand, learned Counsel for the respondents (sic.) owned the premises purchased by her under Ex. A-1, but she had died arid on her death, the respondents herein, their two sisters and their father became entitled to a fractional interest in that property and the owning or possessing of a fractional, interest in a property would not preclude the respondents from maintaining the application under Section 10(3)(a)(i) of the Act. In this connection, attention was also invited to the decisions reported in H.K Bhava v. N.T. Rahmathunissa 99 L. W. 865 and Anandan v. K.R. Lakshmanan Chettiar 88 L.W. 999.
4. There is no dispute that the mother of the respondents owned under Ex. A-3 the premises dealt with thereunder and that she had died. On her death, it is not in dispute, the respondents herein, their two sisters and their father became entitled to fractional interest in that property in accordance with the personal law governing them. It has been repeatedly held by a series of decisions of this Court that the owning or possessing of fractional interest in a premises cannot be equated to the occupation of a residential building of their own in the city, town or village concerned within the meaning of Section 10(3)(a)(i) of the Act. It would suffice in this connection to refer to H.K. Bhava v. N.T. Rahmathunissa 99 L.W. 865, where it has been laid down that on the mere fact that the landlord is entitled to a fractional share, his claim for own occupation cannot be negatived under Section 10(3)(a)(i) of the Act. This is also reiterated in Anandan v. K.R. Lakshmanan Chettiar 88 L.W. 999, where it has been pointed out that the words "of his own" occurring in Section 10(3)(a)(i) of the Act meant that the premises must belong exclusively to the landlord and that, where the landlord owns and occupies premises of which he is a co-sharer, he cannot be said to be in occupation of premises "of his own". On the facts of this case, this principle would stand attracted and the mere possession or occupation by the respondents of a fractional share in the premises belonging to their deceased mother, cannot deprive them of the right to claim an order for eviction against the petitioners under Section 10(3)(a)(i) of the Act.
5. A feeble attempt was made by learned Counsel for the petitioners to contend that as in the course of the evidence of P.W. 1 he had stated that the premises referable to the share of the father in mother's property had been let out, it would follow that there was a partition of the premises which belonged to the mother under Ex. A-3 and, therefore, the respondents cannot be permitted to urge that they are in possession and occupation of a fractional share only. This argument cannot be accepted as it is seen from the evidence of P.W. 1 that the respondents have two sisters, who, along with their father, would also be heirs and that the sisters have demanded partition of the property which belonged to the mother. If as the petitioners would now claim the property which belonged to the mother under Ex. A-3 had been divided, the petitioners could have made available that document of partition in order to establish that distinct portions of the premises had been allotted to the respondents, their sisters and their father as their own and that they were also in possession and occupation of the respective portions so allotted. In the absence of any evidence in that regard, this, contention of learned Counsel for the petitioners cannot be accepted. There is, therefore, no substance in the contention urged by learned Counsel for the petitioners.
6. Learned Counsellor the petitioners next contended that the Appellate Authority had not borne in mind the requirement under Section 10(3)(c) of the Act regarding the bona fide and had proceeded on the assumption that the respondents bona fide required the premises in the occupation of the petitioners for their own use and occupation. Elaborating this, learned Counsel submitted that the three clinching circumstances which clearly establish lack of bona fide on the part of the respondents in filing the application for eviction are: (1) the enhancement in the rent from Rs. 160 to 200 per mensem immediately after the purchase of the property by the respondents, (2) the delay in the filing of the application for eviction after the issue of notices, and (3) the letting out of the portion referable to the share of the father of the respondents in the premises which belonged to their mother. Reliance was also placed in this connection upon the decision of the Supreme Court in Hameedia Hardware Stores v. Mohan Lal Sowcar (1988) 1 L.W. 1. On the other hand, learned Counsel for the respondents, drawing attention to the evidence of P.W. 1 and R.W. 1, contended that there was no demand as such for enhanced rent, but the payment of rent at Rs. 200 was mutually agreed upon and that inasmuch as the petitioners were promising to vacate the premises after the issue of notices, the proceedings for eviction were not taken immediately, as the petitioners and the respondents were good friends and had maintained cordial relationship and further that the letting out of the portion referable to the share of the father of the respondents would not in any manner detract from the bona fides of the requirements of the respondents.
7. In so far as the enhancement of the rent as throwing doubts about the bona fides requirement of the respondents is concerned, it is seen from the evidence of P.W. 1 that at the time of the purchase of the premises by the respondents under Exs. A-1 and A-2, their vendor informed them that the then rent was Rs. 160 per mensem, would be reasonable. In the course of the evidence of R.W. 1 he had accepted that the respondents had not demanded by writing that the rent in respect of the premises should be paid at the rate of Rs. 200 per mensem, but that after the premises was purchased by the respondents, they asked for rent and he agreed to pay Rs. 200 per mensem. It is also further seen from the evidence of R.W. 1 that he had not attributed in the application for eviction to a desire on the part of the respondents to get higher or more rent but had stated that the respondents sought an order for eviction for disposing of the property at a high price. A careful consideration of the evidence, particularly that of P.W. 1 and R.W. 1 clearly shows that there was no demand as such made by the respondents for payment of rent at Rs. 200 per mensem, but that immediately after the respondents became the purchasers of the premises, when they had asked for payment of rent by the petitioners, they had agreed to pay Rs. 200 per mensem. The enhancement of rent from Rs. 160 to Rs. 200 per mensem cannot, therefore, be regarded as a circumstance throwing doubts about the bona fides of the requirement of the respondents.
8. Regarding the delay in the filing of the application for eviction, it is seen that the respondents had earlier issued notices under Exs.A-4and A-5. These notices had been issued some time in 1981 and the application for eviction had been filed after about 2 or 2-1/2 years. This delay is sought to be taken advantage of by the petitioners to contend that the application for eviction lacks in bona fides. P. W. 1 in the course of his evidence has stated that notices had been issued under Exs. A-4 and A-5 and that on receipt of the notices, the second petitioner, who was a close friend of his, total him that he would try to vacate the premises and that he, therefore, waited for about two years nearly, when he was told that the petitioners would not vacate. In the course of the further evidence of P.W. 1, he had stated that even after the purchase of the property by the respondents under Exs. A-1 and A-2, the petitioner premises would be vacated. A suggestion put to P.W. 1 to the effect that no steps were taken for nearly 2 or 2-1/2 years only because the respondents did not require the premises for their own use, had been denied. R.W. 1 in his evidence accepted that himself and his father were very close friends of the respondents and that even when the mother of the respondents died, it was only R.W. 1 who informed his father over the telephone and he in turn had sent a condolence message. From this evidence of P.W. 1 it is obvious that the relationship between the petitioners and the respondents was very cordial and it is, therefore, quite probable, as spoken to by P.W. 1 that as the petitioners promised to vacate the premises, proceedings in eviction had not been taken earlier. There is nothing to discredit the testimony of P.W. 1 in this regard and the action on the part of the respondents to initiate proceedings for eviction against the petitioners till after the lapse of nearly 2 or 2-1/2 years after the issue of Exs. A-4 and A-5 cannot be put against the respondents, as establishing their lack of bona fides.
9. The letting out of the portion referable to the share of the father of the respondents would not again derogate from the bona fides of the requirement of the respondents. Earlier, it had been pointed out that there is nothing to indicate that there was a partition of the premises, which belonged to the mother of the respondents amongst the respondents, their sisters and their father. It is, therefore, extremely doubtful whether any specific portion at all was allotted to the father of the respondents. However, the evidence of P.W. 1 shows that the property belonging to the father had been let out. There is nothing to indicate that the property referred to in the evidence of P.W. 1 is the property which belonged to the mother of the respondents under Ex. A-3. Even on the assumption that it was the same property, it does not appear from the evidence as to when the portion was let out and if the letting out was prior to the institution of the proceedings for eviction, then it really does not matter. Even if it is after the filing of the application for eviction, that in any manner would not detract from the bona fides of the requirement of the respondents for, the father, to whom the share in the premises belonged, was always at liberty to deal with that as his own and the respondents cannot be found fault with for the letting out of the share of the father either by himself or through his sons. This circumstance also cannot, therefore, be of any assistance to the petitioners to contend that the application for eviction filed by the respondents lacked in bona fides. Though the Appellate Authority had not adverted to the question of bona fides in dealing with the application for eviction filed by the respondent herein yet, on a consideration of the materials available in that regard, it cannot be said that the petitioners have established that the application for eviction filed by the respondents herein lacked in bona fides. Even as per the decision of the Supreme Court referred to earlier and relied on by learned Counsel for the petitioners though rendered with reference to Sections 10(3)(a)(iii) and 10(3)(e) of the Act, the question to be considered is, whether the landlord deserves to be put in possession of the property in the occupation of the tenants. That deservedness on the part of the respondents is clearly established by the available evidence in this case. The premises in the occupation of the petitioners had been purchased by the respondents under Ex. A-1 and Ex. A-2 only with a view to enable them to occupy the same for their own residence and this had also been reiterated in the notices issued and also in the evidence of P.W. 1. It is not the case of the petitioners that the respondents have another premises exclusively their own for the convenient occupation of the respondents and their families for use as residence. The circumstances referred to earlier and strongly relied on by learned Counsel for the petitioners and the other evidence do not in any manner show that the respondents have come forward with the application for eviction out of any oblique motive but the evidence points out that they required the premises genuinely for their own occupation and they had, therefore, established their bona fides in requiring the premises under the occupation of the petitioners. No other point was urged.
10. Thus, on a careful consideration of the entire evidence, the Appellate Authority was quite right in ordering the eviction of the petitioners under Section 10(3)(a)(i) of the Act. Consequently, the civil revision petition fails and is dismissed with costs of the respondents.
11. Learned Counsel for the petitioners submitted that in the event of this Court upholding the order of eviction passed by the Appellate Authority, the petitioners may be granted four months' time to. vacate and hand over vacant possession of the premises in their occupation to the respondents. Learned Counsel for the respondents had no objection to this course. Accordingly, the petitioners are granted four months' time from to-day to vacate and hand over vacant possession of the premises in their occupation to the respondents, but this will be subject to the petitioners filing an affidavit of undertaking to that effect before this Court within ten days from to-day, failing which the order of eviction could be put into execution forthwith.