Madras High Court
M. Kothandapani vs Dhanammal on 20 February, 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/02/2004
CORAM
THE HON'BLE MR. JUSTICE M. THANIKACHALAM
C.R.P.(NPD) NO.115 OF 1999
M. Kothandapani ..Petitioner.
-Vs-
1. Dhanammal
2. Jayammal ..Respondents.
Petition filed under Section 25 of the Tamil Nadu Buildings (Lease &
Rent Control) Act, 1960 against the common order made in R.C.A.No.4 of 1998
dated 9.11.1998 on the file of the Rent Controller Appellate Authority
(Subordinate Judge) at Thiruvallu nfirming the order of the Rent Controller
(District Munsif), Thiruvallur in R.C.O.P.No.9 of 1993 dated 8.12.1997.
!For petitioner : Mr. P.N. Prakash
^For Respondents : Mr. T. Viswanatha Rao
:O R D E R
The tenant, who suffered an eviction order before the courts below, is the revision petitioner.
2. The respondents herein as petitioners, claiming as the landlords, under a Will said to have been executed by one Pushpa Ammal, in respect of the petition mentioned property, have filed a petition for eviction of the revision petitioner, on the ground that he had committed willful default, in payment of rent from January 1993.
3. The revision petitioner, as respondent in R.C.O.P. opposed the application, questioning the genuineness of the Will, as well as denying the status of the landlords, disputing their title to the property. It is the further case of the tenant that the property originally belonged to a trust, under whom he took the property for lease and was paying the rent regularly. In this view, the tenant contended that the respondents herein are not entitled to file a petition for eviction, thereby prayed for the dismissal.
4. The Rent Controller as well as the Appellate Authority, after considering the rival claims of the parties, had come to the conclusion, that the respondents herein are the landlords and the revision petitioner is the tenant of the premises, upholding the Will relied on by the landlords. Both the courts below, have concurrently held that the tenant/revision petitioner had committed default, which amounts to willful default, and on that ground, ordered the eviction of the revision petitioner, thereby giving cause of action, for the revision petitioner, to come to this Court, challenging the orders of the courts below.
5. Heard the learned counsel for the petitioner, Mr. P.N. Prakash and the learned counsel for the respondents, Mr. T. Viswanatha Rao.
6. The point for determination is: whether the respondents herein are the landlords of the petitioner and whether the non payment of rent by the revision petitioner to the respondents, amounts to willful default.
7. The revision petitioner is in occupation of the schedule mentioned property, as tenant, agreeing to pay a monthly rent of Rs.215/-. It seems, he has not paid the rent from January 1993, despite a notice which had emanated from the respondents. The respondents herein have approached the Rent Controller for eviction of this revision petitioner labeling him, that he is the tenant under them, but failed and defaulted to pay the monthly rent from January 1993 and on this ground, he is liable to be evicted from the premises.
8. The tenant/revision petitioner opposed the application on various grounds, disputing the status of the landlords. It is the specific case of the revision petitioner, as seen from the counter, that the schedule mentioned property originally belonged to Pushpa Ammal and she had created a trust under a Trust Deed dated 10.3.65 appointing one Gopal Chetty, Dasaratha Chetty and Avva Jayarama Chetty, as the Trustees and after the lifetime of the said Pushpa Ammal, the Trustees were collecting the rents from him and as such, the petitioners have no locus standi, to collect the rent or to file a petition for eviction. In view of the specific defence taken by the revision petitioner, it is incumbent upon the landlords to prove that the revision petitioner is the tenant, under them under the agreement or by his conduct, such as paying the rent regularly to them, recognising as landlords. If the respondents failed to prove that they are the landlords, and the tenant had recognized them as landlords, as rightly contended on behalf of the revision petitioner, the order passed by the Rent Controller is liable to be set aside.
9. Both the courts below, in my considered opinion, have failed to consider the important points in this case, but unnecessarily dealt with the Will, though it is relevant to some extent, to decide the title of the landlords. Even in the absence of establishing title, if it is proved by the collection of rent, the respondents herein come within the meaning of landlords, the petition also could be maintained.
10. Admittedly, the property belonged to one Pushpa Ammal. She had executed a trust deed as seen from Ex.R.2. Ex.R.2, trust deed says, that she had created a Trust, appointing certain persons, as trustees, as per the wishes of Choletti Venkataramanujam Chetty, expressed by him in the Will. The Will further says, that the executant has no right to cancel the Will, thereby showing it is an irrevocable trust deed. The execution of the Trust Deed by the original owner, creating a trust, is not in dispute, though an attempt is made, as if the trust has not come into effect. Thereafter, it seems, the original owner has executed a Will dated 16.6.1991 in favour of the landlords. Unless, the trust deed is set aside, only observing that the trust has not come into effect casually, on the basis of the will, whether it is proved or not, the respondents herein are not entitled to claim absolute ownership, over the petition mentioned property. In my considered opinion, both the courts below have not considered the irrevocability of the trust deed, and proceeded, as if it is a revocable trust deed and after the execution of the trust deed also, Pushpa Ammal had right in the properties, which is in my opinion, not the correct approach, especially in a rent control proceedings. Therefore, on the basis of the will said to have been executed by Puspha Ammal, without setting aside the trust deed, which is irrevocable, the petitioners cannot claim as the landlords.
11. In the petition, except some reference regarding the Will, there is no allegation, such as, the tenant occupied the premises as tenant, under the landlords, agreeing to pay the monthly rent, giving the commencement of tenancy also. At no point of time, the tenant has accepted the respondents as landlords. The payment of rent evidenced by R1 would go to show that the rents were paid only to the trustees. The petitioners have not filed this petition in the capacity of the Trustees, representing Soleti Venkataramanujam Chetty Trust. It is also not the case in the petition, that after the death of Pushpa Ammal, the rent was paid to the petitioners in R.C.O.P. or the tenant had recognised them as the landlords, despite the existence of the trust, in order to invoke the principle of estoppel. Admittedly, the tenant had paid rents up to December 1992, only to the trustees, the son of the trustees, though he may related to one of the petitioners. The son of Gopal Chetty has not collected the rent on behalf of the petitioners, which could be seen from R1 itself. After the death of the trustees, there was some dispute, regarding who is entitled to collect the rent. The fact that the tenant failed to reply for the notice issued by the landlords alone, is not sufficient proof, to conclude that he had recognized the respondents herein as landlords. Because of the fact, the trustees are no more and there was some bona fide dispute, who is entitled to collect the rent on behalf of the Trust, the tenant has not paid the rent, that too only from the month of January and the petition was filed in the month of August 1993. As soon as the petition is filed, entire arrears were deposited into the court, though after the filing of the petition under Section 11. The non payment of the rent by the tenant to these petitioners, under the above narrated circumstances, would not amount to willful default, warranting eviction. Unfortunately, the courts below have not considered the defence properly, and proceeded as if the revision petitioner has recognised the respondents herein as landlords, which is incorrect.
12. The learned counsel for the respondents would contend, that a person, who is receiving or entitled to receive, rent of a building, has to be construed as a landlord placing reliance upon the decision in T. Palanisamy Gounder v. A.V.G. Ponnusamy Chettiar and Sons (1999 (1 ) MLJ 459). In view of my finding supra, the landlords have not made out a case, as if they are entitled to collect the rent, to label them as landlords, as per the definition of the Act.
13. The learned counsel for the respondents further submits, that the revisional authority cannot independently reappreciate the evidence and in this view, concurrent finding could not be disturbed, seeking aid from Karur Ghee Stores v. N. Palaniappan (2001 3 CTC 206). In this case itself, this Court had observed that revisional court could interfere with the concurrent finding, provided there is misapplication of law or legally wrong approach or grave and substantial injustice had been done. The Apex Court has ruled in P.M.Punnoose vs. K.M. Munneruddin (2003 (3) CTC 348) that the jurisdiction conferred on High Court under Section 25 of the Act is not narrow as one under Section 115 of C.P.C., thereby indicating when there is misapplication of law or wrong approach causing substantial injustice, the court can exercise revisional jurisdiction and set right the injustice crept in.
14. For the reasons assigned by me supra, in the absence of any evidence, that the tenant had recognized the respondents as landlords or attorned them, the courts below have given a finding against the evidence available on record, approaching the case not from its proper angle, but on misapplication of law and facts. In this view, I am constrained to interfere with the findings of the courts below, since they have given a wrong finding, as if the respondents herein are the landlords and the revision petitioner is the tenant, which is not at all established, on the basis of the pleadings, as well as on the basis of the evidence.
15. Under the above circumstances, I conclude that the respondents have miserably failed to prove their status as landlords, which should follow, question of filing of a petition by them, for willful default, does not arise for consideration. Even assuming that the petitioners are entitled to maintain the application, because of the bonafide dispute viz., whether these petitioners are entitled to collect the rent individually, when the rent was collected by the trustees, the tenant was perplexed and only in this view, he has not paid the rent only from Janaury 1993 and deposited the entire rent including the enhanced rent, as per the direction of the court, periodically and in this view, he should be relieved of the penalty of eviction, on the basis of the willful default, concluding the default committed by the tenant, is not willful, warranting eviction.
In the result, the revision petition is allowed, setting aside the order of the courts below, dismissing the R.O.C.P. Under the facts and circumstances of the case, the parties are directed to bear their respective costs, throughout.
kv To
1. The Rent Control Appellate Authority, (Subordinate Judge), Thiruvallur.
2. The Rent Controller (District Munsif) Thiruvallur.