Madras High Court
Surajmal Sowcar And Sons vs Arokia Mary on 5 February, 1987
Equivalent citations: AIR1987MAD278, (1987)IIMLJ50, AIR 1987 MADRAS 278, (1987) 100 MADLW 504 (1987) 1 RENTLR 667, (1987) 1 RENTLR 667
ORDER
1. The above revisions arise out of the order passed by the VI Judge, Court of Small Causes at Madras (Appellate Authority) in R.C.A. 1433 of 1983 as against the order of the VIII Judge, Court of Small Causes, Madras, (Rent Controller) in HRC 5455 of 1981. C.R.P. 3821 of 1984 is filed by the landlord, hereinafter referred to as the petitioner, challenging the correctness of one finding of the appellate authority and C.R.P. 1018 of 1985 is filed by the tenant, hereinafter referred to as the respondent, challenging the correctness of another finding in the same order of the same appellate authority.
2. The facts giving rise to the present revisions briefly are as follows- The proceedings related to a house bearing door No. 4 (old door No. 102) in Portuguese St, 7th Lane, Madras 1. The petitioner filed an application under S. 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as the Act) on the averment that it was the owner of the superstructure in the petition premises, that the respondent was its tenant, that the respondent had committed wilful default in the payment of rent from April, 1972 to Sept., 1981, and that despite a notice dated 22-41981, the rent had not been paid and the default being wilful eviction of the respondent was sought for.
3. The respondent resisted the above action on the allegation that the petitioner was not the owner of the superstructure, but that the superstructure had really been constructed by her and belonged to her, that, therefore, there was no landlord-tenant relationship between them and hence the question of the respondent paying any rent' to the petitioner did not arise and that there was no default much less any wilful default. It is the common case of both the parties that the site on which the superstructure is located belong to Sri Prasanna Venkatesaperumal Devastanam.
4. Before the Rent Controller, one of the partners of the firm was examined as P.W. 1 and Exs. P 1 to P 9 were marked on the side of the petitioner. The respondent was examined as R.W. 1 and Ex. R. 1 to R. 50 were marked on the side of the respondent. Learned Rent Controller, on the materials, found that the case of the respondent was true and that there was no landlord tenant relationship between the parties and, upholding the right of the respondent to the supersturcture, dismissed the petition filed by the petitioner. Learned Appellate Authority, before whom the petitioner filed an appeal, reversed the finding of the learned Rent Controller in so far as it related to the ownership of the superstructure, and held that it was the petitioner who was the owner of the superstructure, that the respondent was the tenant under the petitioner and that the respondent was bound to pay rent to the petitioner. Learned Appellate Authority, however, held that, though there was default in payment of rent by the respondent to the petitioner, for the relevant period, viz., from April, 1972 to Sept., 1981, still, in view of the fact that the respondent had put up a bona fide claim of right to the superstructure and had also paid the property tax and land rent on behalf of the petitioner, which the respondent would have thought could be adjusted towards the rent, she was liable to pay to the petitioner, and had, therefore, not paid the rent, the default could not be construed as a wilful default. The appeal, however, was dismissed on the ground that the default was not wilful. Hence these two revisions by the respective parties as against the different finding adverse to them.
5. Taking C.R.P. 1018 of 1985, filed by the tenant first, challenging the finding of the appellate authority that the petitioner is the owner of the superstructure, Thiru T.S. Subramaniam, learned counsel for the respondent submitted that once a tenant had chosen to deny the title of the landlord it was not incumbent on the part of the Rent Controller or this court in revision to go into the relative claims put forward by the respective parties and adjudicate upon them. According to the learned counsel, the matter had to be referred to a civil court, and the Act would no longer be applicable to the parties. Even on merits, according to the learned counsel, the evidence had not been properly appreciated by the learned Appellate Authority and the finding that the petitioner was the owner of the superstructure was perverse and had to be reversed by this Court.
6. Per contra, Thiru A. Venkatesan, learned counsel for the petitioner, contended that, even if the title was disputed by the tenant, that by itself did not oust the applicability of the Act and the cour ' ts had to go into the disputed question of title in order to find out whether the denial was bona fide or not. Learned counsel placed reliance upon a decision of this Court in Kesava Naicker v.Sivagnana Mudaliar, . Learned counsel also submitted that as the finding arrived at by the learned Appellate Authority that there was a landlord-tenant relationship between the parties was based upon proper appreciation of the evidence it did not call for any interference by this court. It is seen that in Kesava Naicker v, Sivagnana Mudaliar , Ratnam after referring to the several decisions on the question as to whether the Rent Control authorities could go into disputed questions of relationship of landlord and tenant and give a finding thereon, has observed as follows :-
"Disputed questions of the relationship of the landlord and tenant have also to be decided by the Rent Controller. If the Controller decides that there is no such relationship, then the proceeding has to be terminated without deciding the main question of eviction; but if, on the other hand, it is found that the relationship is that of landlord and tenant the further proceedings have to go on. Therefore, a mere denial of the relationship cannot oust the jurisdiction of the authorities under the Act."
It is, therefore, clear that, even where the relationship is disputed, the Rent Controller , has to adjudicate upon the relationship and' pass appropriate orders and cannot immediately direct the parties to go to a civil court merely because there is a denial of landlord-tenant relationship.
7. In the petition, the petitioner has put forward a claim that it is the owner of the superstructure and the respondent is a tenant. In the counter, the respondent had stated at though the land, on which the superstructure had been constructed, belongs .o the temple, the superstructure was, in fact, put up by the respondent and that, therefore, she is entitled to the benefits under the City Tenants Protection Act. It, therefore, has to be determined as to whether the claim of the petitioner that it is the owner of the superstructure, is true or whether the claim of the respondent that she built the superstructure is true. The petitioner in proof of its title has produced Ex. P. 1. This is a registered sale deed dated 27-2-1940 executed by Khan Bahadur Mohamed Abdulla Sahib Bahadur in favour of the petitioner relating to the petition premises. In the schedule to Ex. P. 1 it is stated that what was sought to be conveyed under Ex. P. 1 was the superstructure bearing municipal door No. 102 Portuguese Church St, G. T. Madras. It is also stated that the right conveyed under Ex.P. 1 includes the vendor's perpetual leasehold interest in the said ground and land to be enjoyed in perpetuity, subject to the payment of Rs. 1-8-0 per month as ground rent to the trustees for the time being of Sree Prasanna Venkatesaperumal Devastanam. Though Ex.P. 1 is dated 27-2-1940 from the recitals in Ex. P. 1, it is seen that this very same superstructure had already been mortgaged in favour of the petitioner by a registered mortgage deed dated 26-8-1929 for a sum of Rs. 2200. In fact, the sale consideration of Rs. 2500 would include this sum of Rs. 2200 as also, the piecemeal borrowings from the petitioner for Rs. 300. Ex .P.1 makes it clear that the vendors of the petitioner were entitled to the superstructure as also the perpetual leasehold interest in the' land subject only to the payment of ground rent to the temple. These rights have been properly conveyed the petitioner under Ex.P.1. Ex.P. 2, which is a lease deed executed by the petitioner in favour of the mother of the respondent for a period of one year, is dated 15-6-1952. Under Ex.P.2, the petition premises has been leased out to the mother of the respondent for a period of one ear commencing from 1-6-1952, on monthly rent of Rs. 35. It is also stipulated that, if there is default in the payment of rent -)r any particular month, the petitioner will have the right to evict the tenant irrespective of the period of one year. It is obvious that the respondent's mother has been holding over even after the lease period under Ex.P.2 had come to an end. Further, Ex.P.2 will' clearly indicate that the respondent's mother took possession of the petition premises only as a tenant. If that be so, she could continue to be in possession only as a tenant under the petitioner, unless she is able to establish any independent source of title. That the petitioner continued to exercise its right over the petition premises is clear from Ex.P. 7, which is a certified copy of the final decree passed in O.S. 1571 of 1956 instituted as against the petitioner and others, wherein in the schedule of properties the petition premises is shown as item No. 5, in door No. 102 Portuguese Church St, Madras. Ex.P. 1 and P. 2 would indicate that the superstructure existed even on 27-2-1940, when the petitioner had purchased the same from its vendor. As against this evidence, the respondent has not been able to give any material to indicate that she constructed the superstructure. The averments in the counter are vague, as also her evidence. If she had really constructed the superstructure, she should be able to produce the Corporation plan, the permit for construction or any other material which would prove her claim on the contrary, the respondent tries to build up her claim to the ownership of the superstructure merely on the basis of Ex. R- 1 to R-50, These are documents ranging from 1962 to 1982. They show that the demand for Corporation tax had been made from the respondent for the petition premises and that she has been paying the same to the Corporation authorities and that when there had been default in the payment of Corporation tax, she had been prosecuted and also that she had been paying ground rent to the temple authorities. Ex.R. 1 is the earliest of these documents and is dated 16-9-1962. From the payment of property tax to the Corporation and from the payment of ground rent to the temple, the respondent wants the court to hold that she is the owner of the superstructure. It is true that the respondent has periodically paid the ground rent to the temple. It is also true that the property tax has been demanded from the respondent by the Corporation authorities and the respondent has paid the same. However, these circumstances by themselves would not clothe the respondent with the ownership of the superstructure. It is the respondent who is in occupation of the superstructure and, as part of a duty of an occupier interested in seeing that punitive action is not taken for non-payment of the dues to the public authorities, the respondent would be willing to pay these liabilities. When she does so, she discharges the liability not in exercise of any title which she might have in the superstructure, but she would be discharging these liabilities only on behalf of the landlord. Learned counsel for the petitioner placed reliance upon a judgment of this Court rendered by Ratnam, J. in Jagannatha Chettiar v. Swarnambal (1984) 2 Mad LJ 6 : (AIR 1984 NOC 256). In that case, the property tax and the water charges had been paid by the tenant to the Municipal Corporation authorities. The above payment was pleaded as negativing willfulness in the default of payment of rent. Rejecting the above contention, learned Judge held that it was possible that demand for property tax or water charges from the local authorities could have been made to the tenant, since it was the tenant who was in occupation of the premises and it was the duty of the tenant to bring it to the notice of the landlord, and if he failed to do so and if he paid the above liabilities, he should be taken to have made those payments voluntarily and that it would not give him any manner of right that would bind the landlord. In the above case, it was a right which the tenant claimed for adjustment towards the rent. In the instant case, it is a right which the tenant claims to the very ownership of the superstructure. The payment of property tax to the Corporation and the ground rent to the temple authorities by the respondent could only be taken as payments which the respondent as an occupier made on behalf of the landlord. They would not be construed as evidence of any ownership to the superstructure. It is also seen that the petitioner is a firm and there have been litigations from 1956 onwards as is evidenced by Ex.P. 7. ExP. 7 refers to three suits, O.S. 1570 and 1571 of 1956 and 1509 of 1957. It is obvious, therefore, that when the firm was in the grip of a series c: litigations, the tenant could have chosen to pay the taxes due to the local authorities and the rent due to the temple on behalf of the landlord and the landlord could have acquiesced in the same. As already indicated by me above, the respondent is not able to say as to what right she had in the ground so as to enable her to put up a superstructure;' nor is there any evidence to show that she had really built the superstructure. On the contrary, Ex.P. 2 would show that her mother had been inducted into the premises only as a tenant of the existing superstructure. The respondent cannot have any better claim than her mother. Learned Appellate Authority, therefore, was right in reversing the finding of the Rent Controller, which had clearly failed to give due importance to Exs. P. 1 and P. 2 and had failed to see the total lack of evidence from the respondent. Periodical payment of taxes to the Corporation or rent to the temple would not clothe a tenant with the ownership of the superstructure. It has also been brought to my notice by the learned counsel for the petitioner that in Ex.P. 8, which is a statement of account, filed by the Advocate - Receiver, who was in charge of the estate of the petitioner during the pendency of the civil suits, certain items of expenditure relating to the petition premises are shown, thereby indicating that the petition premises was also under the management of the Advocate - Receiver on behalf of the petitioner. It is seen that on 4-4-1963, expenses have been incurred by that Advocate-Receiver for posting a registered notice to the respondent. Similarly on 18-111964 a sum of Rs. 4 is shown as expenses for affixing a stamp on the execution petition. On 17-6-1956, and 19-6-1966 conveyance charges to petition premises have been shown. On 17-8-1968 the Advocate-Receive has paid property tax to the Corporation of Madras for three half years. On 10-11-1968 the Receiver has paid land rent to the tenant wherein the door number of the petition premises is also given. Similarly land revenue have been paid on 6-6-1970 and 13-3-1972 " considerable length of time. 8th statement of account of the Advocate-Receiver shows that the Receiver has been paying corporation taxes also. I, therefore, hold that 'he petitioner is the landlord of the premises and the respondent is its tenant.
8. Taking C.R.P. 3821 of 1984 filed by the petitioner challenging the finding of the learned Appellate Authority that the default is not wilful, it is seen that the default is admitted by the respondent. It is not the case of the respondent that any rent has been paid by her to the petitioner. But as already stated, above, the respondent denied the liability to pay rent. Once that has been found against her and it has been found that as a tenant she is bound to pay the rent to the petitioner, the only question that remains to be considered is whether, under the above circumstances, the default could be construed as wilful. Learned Appellate Authority has held that the default cannot be construed as wilful, since the respondent had in fact, paid the property tax to the Corporation authorities and had also paid ground rent to the temple. In addition, the respondent had contended that she was the owner of the superstructure and was not liable to pay rent and, therefore, the default was not wilful. I am unable to agree with the finding of the learned Appellate Authority. The ground rent, even according to the different exhibits filed, is only about Rs. 5 per month. The Corporation tax ranges from Rs. 25 to Rs. 50 per half year. Hence, whatever amount, the respondent had volunteered to pay on behalf of the petitioner could not be equivalent to the monthly rent ~of Rs. 35 which she is liable to pay to the petitioner. This, the respondent should have been aware of. On the contrary, the -respondent had chosen to deny the Very title of the landlord. That denial has now been 4ound against her. Under such circumstances, M. N. Chandurkar, C.J. in Chelliah Pandithan ,(v. Anthoni Ammal (1985) 98 Mad LW 666 has held that the denial should be construed to be wilful. Upholding the verdict of the earned Appellate Authority in that case, the learned Chief Justice has observed as follows :
"It is obvious that the tenant was disputing the title of the landlord to the premises in question and his contention throughout had been that Rs. 17 was the rent only of the site. Once the court recorded a finding that the premim in question belonged to the landlords, then the defence of the tenant that his liability was only Rs. 17 per month could not be held to be bona fide. If Rs. 17 was the rent for the site in question, the rent for a structure would be much more and if the petitioner's case that he owned the structure is found to be false, the only inference that is possible is that the tenant was deliberately not paying the rent to the landlords and such a default will clearly be wilful in character and the appellate authority was, therefore, right in holding that the tenant had committed wilful default."
In the light of the above judgment, the finding of the learned Appellate Authority to the contrary cannot be sustained. The default by the respondent in the payment of rent is wilful.
9. Learned counsel for the respondent also raised an objection regarding the maintainability of the petition for eviction filed by the petitioner. According to the learned counsel, though the partnership firm is the petitioner, still the petition for eviction has been filed only by one of the partners and as such the petition is not maintainable by, virtue of S.10(8) of the Act. According to the learned counsel, either the petition should have been signed by all the partners or a written consent must have been procured. Reliance was placed upon the judgment of this court rendered by S. Natarajan, J. in Alagiyanathan v. Swaminatha Pillai (1980) 93 Mad LW 580, wherein it was held that, in the facts of that particular case, that one owner could not file a petition for eviction in respect of the shares of the other co-owners. Meeting the above contention, Thiru A. Venkatesan, learned counsel for the petitioner, rightly contended that in the decision referred to above, there was evidence that the brothers had been living separately, and they had been independently collecting rent in equal shares from the tenant. One of the co-owners was seeking possession of the building not for the benefit of all the co-owners but only his personal benefit. Under, those circumstances the learned Judge held, that one co-owner could not maintain such an action without reference to the other co-owners. The above decision would not apply to the facts of the this case. Reliance was also placed upon a decision of this court in Vasudevan v. Rarnachandran (1980) 93 Mad LW 879, wherein Balasubrahmanyan, J. has held that S. 10(8) of the Act is not applicable to a co-owner since one co-owner could not be said to be an agent of the other co-owners. In yet an other decision of this court Mohan, J. in Chandra Agencies v. Kanthakumari, 1982 TLNJ 454, held that as a partner it would be open to one of the partners to ask for eviction on behalf of the firm. Learned Judge had followed the earlier decision of this court in . In the light of the above two decisions I am unable to accept the contention of the learned counsel for the respondent that the petition for eviction is not maintainable.
10. In the result, C.R.P. 1018 of 1985 is dismissed and C.R.P. 3821 of 1984 is allowed. Eviction of the respondent on the ground of wilful default in the payment of rent under S. 10(2)(i) of the Act is ordered. No costs in both the revisions.
... .... ... ... ... ... ...
11. The matters are listed today for being mentioned', heard. Learned counsel for the respond6nt herein seeks nine months time to vacate the premises. Learned counsel for the petitioner objects to the grant of time and also submits that if any time is to be granted as an order of court, the respondent should be directed to pay the arrears of rent and also continued to pay the future rent till the date when she actually vacates the premises. Learned counsel for the respondent submits that since respondent has questioned the title of the petitioner to the superstructure, the payment of rent would be taken as an admission of title of the petitioner. Considering the above facts, it is ordered that the respondent be given four months time to vacate the premises. The respond shall pay the petitioner arrears of rent from the date of filing of R.C.O.P. 5455 of 1981 and continue to pay the future rent also. This payment of rent and the arrears of rent will be without prejudice to the claims of the respondent to the ownership of the superstructure, and also without prejudice to the claim of the petitioner to collect arrears of rent prior to the filing of the above R.C.O.P. Time for payment of arrears of rent two months from today.
12. Order accordingly.