Madras High Court
Julkabi (Died) And 2 Others vs Vairavan on 24 December, 1999
Equivalent citations: 2000(1)CTC628, (2000)1MLJ474
ORDER
1. Tenant in R.C.O.P.No.181 of 1978 on the file of Additional District Munsif Court, Salem is the revision petitioner herein.
2. Landlord filed eviction petition on the ground that building requires immediate demolition and reconstruction. According to landlord, petitioner herein is tenant of the building. Landlord obtained right over the property as per sale deed dated 15.7.1978 and petitioner also attorned tenancy in his favour from the date of sale deed. Previous owner Ramasubramaniya Mudaliar by registered letter dated 3.8.1978 intimated petitioner about the sale and wanted petitioner to pay rent to respondent herein from the date of sale deed.
Petitioner herein did not send any reply. According to landlord, building occupied by tenant is very old and he wanted to demolish the entire building and construct a new terraced building in that place. Landlord has submitted his plan and licence and also demanded vacant possession.
3. Before institution of this proceeding landlord issued notice to petitioner asking him to vacate the building on the ground that building requires immediate demolition and reconstruction. A reply, was sent stating that there is no rental arrangement in respect of the building and arrangement is only in respect of site. Building was constructed by petitioners husband and building does not belong to respondent herein. According to landlord, this contention in reply notice is not correct and petitioner is liable to be evicted from the building.
4. In the counter statement filed by petitioner herein, she claims the benefit of City Tenants Protection Act. According to her, her husband took, vacant site from late Ramasubramaniam for a monthly rent of Rs.10 which was subsequently enhanced to Rs.17 and thereafter her husband put up structure spending more than Rs.10,000. She is also maintaining building spending Rs.1,500 per annum. Water and electricity connection are in the name of her husband and herself. According to her Rent Control court has no jurisdiction to decide the case since there is no rental arrangement in respect of the building. It is further alleged that late Ramasubramania Mudaliar had agreed to sell the property to her husband and it is only oh the basis of that premise her husband put up construction in the property. She therefore prayed for dismissal of the Rent Control petition.
5. On the above pleadings, Rent Controller took oral and documentary evidence. Exs.A1 to A10 were marked on the side of landlord and Exs.B1 to B3 were marked on the side of petitioner. Exs.C1 and C2 are Commissioner's report and plan .Oral evidence consist of PWs.1 and 2 and RWs.1 and 2.
6. Rent Controller after evaluating entire evidence came to the conclusion that petitioner herein is the tenant of the building and denial of title is not bona fide and she is liable to be evicted on that ground also. A further contention was raised that apart from herself there are other legal heirs also and they are necessary parties to the proceedings. That contention also did not find favour with Rent Controller. It is further found that building requires immediate demolition and reconstruction and the claim of landlord is bona fide.
7. Aggrieved by the said order, tenant preferred R.C.A.No.2 of 1995 on the file of appellate authority, Salem. Before appellate authority, an argument was taken that when landlord has not taken a ground for eviction that denial of title is not bona fide. Rent Controller should not have ordered eviction, which is not sought for by landlord. The other ground raised before Rent Controller was also pressed before appellate authority. Revision petitioner was not successful in persuading appellate authority to lake a different view. All the findings of Rent Controller were upheld by dismissing the appeal.
8. The said concurrent finding of authorities below are assailed in this revision petition.
9. First question, is to be considered is whether petitioner is tenant of the building. Admittedly Ramasubramania Mudaliar was the owner of the property. He executed Ex.A1 sale deed in favour of respondent on 15.7.1978. The sale deed is for the building also. That is specifically scheduled in the document. Property Tax is also being paid by landlord, is clear from Exs.A6, A7, A8 and A9. If the building was actually constructed by petitioner's husband, tax could not be assessed in the name of landlord. No receipt was produced by petitioner herein that she ever paid property tax for the building. The only document produced by her is only to show that electric and water connection stands in her name. EXs.B1 to B3 are produced for the said purpose. Production of those documents alone will not be sufficient to hold that her husband put up construction.
10. An argument was also taken before this Court that the building referred in Ex.A1 sale deed do not pertain to scheduled premises. Either in the counter or when petitioner got herself examined before Rent Controller, she did not have such case. The door Number of the building is 22A, is admitted. Various property tax receipts are also for door No.22A. Ramasubramania Mudaliar was the owner is also admitted. The argument of learned counsel that building referred to in Ex.A1 do not relate to building in door No.22A cannot be accepted.
11. In this connection, Exs.A5 to A8 shows that property tax receipts stood in the name of Ramasubramania Mudaliar for the period 1971-72 to 1980-81, long before litigation began. There also, door number is mentioned as 22A. From the above materials it is clear that Ramasubramania Mudaliar was the owner of the site as well as building and he conveyed his right to respondent herein for valid considerations. No evidence was let in by petitioner to show that her husband put up construction. She could have produced plan, licence, etc. If her husband put up any construction or some other piece of evidence. We have only the interested testimony of petitioner, which are against the documentary evidence produced by landlord.
12. Finding of Rent Controller as affirmed by appellate authority that the building belonged to Ramasubramania Mudaliar and the same was conveyed to respondent is therefore correct.
13. Further question arises for consideration is whether the petitioners herein are the tenants of the building. Even according to them they are tenants of the property. The only question is whether the tenancy is for the site or building. Once it is found that they had not put up construction and they are also in occupation of the building constructed by original owner, the inference is irresistible to hold that they are tenants of the building.
14. At this juncture, learned counsel for petitioners submitted that even in the reply notice, they have taken the ground that the building does not belong to late Ramasubramania Mudaliar or to the respondent herein. If that be so, they could have taken the ground of denial of title as a ground for eviction and having not taken such a ground, Rent Controller as well as appellate authority were not justified in ordering eviction on that ground.
15. In M.Subbarao v. P.V.K. Krishna Rao, , the Honourable Supreme Court held that the denial of title during the course of proceedings itself is a ground for eviction and no amendment of pleading is required and in that proceeding itself, eviction could be ordered. In para 5 of the Judgment, their Lordships held thus.
"5. It was argued by learned counsel for the appellant that even accepting that there was a denial of title by the appellant and the result would be only that the respondent-landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction. It was submitted by him that it was not open to a landlord to take advantage of a denial of' title by the tenant in the very proceedings for eviction in the course of which the denial was made. The denial must be anterior to the eviction proceedings. In support of this argument learned counsel placed reliance on the decision in Maharaja of Jeypore v. Rukmani Pattamahdevi, 46 IA 109 : AIR 1919 PC, in our view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Ammal, a Constitution Bench of this Court comprising seven-learned judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenants merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of Rent Acts. Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means 'a person continuing in possession after the termination of the tenancy in his favour. Yet another important feature of the Rent Acts is that either by way of non obstante clause or by necessary implication these enanctments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down; in the relevant sections. He cannot recover possession merely by determining the tenancy. Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy. In the case before us, we find that the denial of landlord s title by the tenant has been expressly made a ground for eviction under section 10(2)(vi) of the A.P.Rent, Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion, the argument of learned counsel for the appellant must, therefore be rejected. We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlord's title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed see : Soda Ram v.
Gajjan Shiama, : Shiv Parshad v. Smt. Shila Rani, and Machavaram Vnkata Naryana Rao v. Sarvepalli Naryana Rao Sarada, 1978 (1) Ren CJ 368 : AIR 1978 NOC 160 (AP). As observed by the Punjab and Haryana High Court to insist that s denial of title in the, written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of his character as a tenant in the written statement." (Italics supplied)
16 In M/s Hussian Lorry Booking Service v. A. Sirajuddin, 1991 (II) MLJ 48, a similar question came for consideration. There also landlord sought eviction only on the ground of demolition and reconstruction Before filing eviction petition, there was a civil suit between parties in which tenant had already alleged that the owner has no title to the property and there is no rental arrangement In spite of such contention taken landlord did not seek eviction on the ground of denial of title in the eviction proceedings. An argument was taken before this court that when landlord has not sought eviction on the ground of denial of title, the same should not be a reason for ordering eviction. This Court did not accept that contentions. Following the decision in M.Subbarao's case, , this Court rejected the contention of tenants and ordered eviction in that proceedings itself. Relevant portion of para 7 of the judgment reads thus, ".... the respondents have not let in any evidence to substantiate their case put forth in the counter that they constructed the building and that the building belongs to them. In these circumstances, both the Rent Controller as well as the Appellate Authority found that the respondents' denial of the petitioners' title to the building is not bona fide. No doubts the above findings of the Rent Controller and the Appellate Authority were rendered for coming to the conclusion that the petition for eviction filed by the petitioner against the respondents under the provisions of the Act is maintainable. However, as pointed out by the Supreme Court in Majati Subbarao v. P. V.K. Krishna Rao, , the denial of the title in the course of eviction proceedings constitutes a ground for eviction when it is proved that such denial is not bona fide. Therefore, the petitioner is entitled to an order of eviction in the present case on the ground that the respondents denied the title of the petitioner to the petition mentioned building in the course of the eviction proceedings and such denial of the petitioner's title by the respondents is not bona fide. In these circumstances, the order of eviction passed by the Rent Controller and the Appellate Authority can be sustained though not on the ground that the petitioner's requirement of the petition mentioned building for demolition and reconstruction is bona fide but on the ground that the respondents in the course of the eviction proceedings denied the title of the petitioner to the superstructure of the petition mentioned premises and such denial is not bona fide."
17. It is not the case of petitioners that she was taken by surprise. The only contention is that this cannot be a ground for eviction in this proceedings. They only wanted landlord to initiate another proceedings for eviction and get an order. If eviction can be ordered in plea raised in the course of proceeding even without plea, the same principle could be applied in eviction proceeding also where denial of title is taken earlier to the filing of eviction proceedings. The only question that requires consideration is whether petitioners are put on notice of the contentions and whether they had opportunity to contest the case. If they are given sufficient opportunity to contest the case, merely because that is not raised in the eviction petition, cannot be a ground to hold that landlord is not entitled to get eviction on the ground of denial of title.
18. Regarding the ground of eviction that building requires immediate demolition and reconstruction, Commissioner's report and plan Exs.C1 and C2 give vivid picture of the physical condition of the building It is clear therefrom that the scheduled building, is very old one and the same is not safe for human habitation. Other statutory requirements are also satisfied by landlord. In fact, there is no serious arguments by learned counsel for petitioner about the ingredients under Section 14(1)(b) of Rent Control Act. The concurrent finding is also that the building requires demolition and reconstruction and landlord also got sufficient financial capacity to put up new construction and he has also obtained plan and licence and he has also given statutory undertaking. The claim of the landlord on this ground is found to be bona fide by the authorities below and no interference is called for by this Court.
19. Taking into consideration the facts and circumstances of the case, I do not think that any ground is made out for interference under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act in the findings of the authorities below.
20. In the result the revision petition is dismissed. No costs.