Madras High Court
Diwangani @ M.S.Gani vs Saharvan Beevi on 16 March, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.3.2015
CORAM
THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA
C.R.P.NPD (MD) No.91 of 2004
Diwangani @ M.S.Gani ... Petitioner
Vs
1. Saharvan Beevi
2. Minor Gadafi
3. Minor Akram
(R.R.2 and 3 rep. Through their
grandmother and next friend
Saharvan Beevi/R.1)
4. Begum Hara Habib
5. Seema
6. M. Habib
7. Aneez Meeran Babu
8. Babu Siraj
9. Beema Mariam Sagar ... Respondents
Petition filed under Section 25 of the Tamil Nadu Building (Lease &
Rent Control) Act, 1960 as amended by Act 23/73 and Act 1/80 against the
judgment and decree made in RCA No.43/2001 dated 23/6/2004 by the learned
Rent Control Appellate Authority (Prl.Sub-Judge), Tirunelveli, reversing the
judgment and decree made in R.C.O.P.No.121 of 1999 dated 18/8/2001 by the
learned Principal Rent Controller (Principal District Munsif), Tirunelveli.
!For petitioner ... Mr.G.R.Swaminathan
^For respondents ... Mr.G.Sridharan
for R.R.1 to 3 and 5.
R. 4 -died
R.R.6 to 9 ? No appearance
:ORDER
The tenant is the revision petitioner, who has suffered an order of eviction before the Appellate authority.
2. The landlord had filed R.C.O.P.No.121 of 1999 on the file of the Principal Rent Controller (Principal District Munsif), Tirunelveli on the grounds of willful default and owners occupation. The respondents herein are the landlord, who are the owners of the premises in which the petitioner herein is a tenant.
3. By an order dated 18/8/2001, R.C.O.P was dismissed by the Principal Rent Controller (Principal District Munsif), Tirunelveli. Against which an appeal by the respondents herein was filed in R.C.A.No.43 of 2001 before the Rent Control Appellate Authority, who passed an order on 23/6/2004 allowing the R.C.O.P and ordered eviction. Aggrieved by the same, the above revision has been filed.
4. It is pointed out by the revision petitioner, who is the tenant that in R.C.O.P, the schedule of property is described as 18 x 50 feet land and the temporary shed on that and in R.C.O.P itself, in paragraph 7, the landlords have admitted that the tenants had put up a tin shed and a thatched roof shed and got assessment in their names. The said assessment was cancelled subsequently at the instance of the landlord. The landlords had pleaded that they wanted to remove the thatched shed and the so called temporary shed and put up a pucca structure in the place for which they want the tenant to be evicted from the premises.
5. The said application was resisted by the tenant denying the ownership over the superstructure and it was contended by them that only the land was belonging to the landlord and the superstructure was put up by them though it is only a tin shed.
6. As the land alone was let in for lease according to the tenant, the Rent Control Act itself has got no application. The Rent Controller, dismissed the R.C.O.P holding that the petitioner could not prove that he built the superstructure. However, the Rent Control Appellate Authority, after considering the oral and documentary evidence found that even the superstructure was belonging to the landlord and what was let out was only the building.
7. Heard the learned counsel appearing for the petitioner and the respondents 1 to 3 and 5.
8. The learned counsel appearing for the petitioner contended that there was a suit which ended in the Second Appeal before this Court. In the judgment of the Second Appeal No.1550 of 2001 which is marked as Ex.P.46, wherein it is found as follows:-
?Admittedly, the plaintiff is the tenant of the building bearing Door No.2 E Madurai road - Tirunelveli Junction?.
9. The learned Appellate Authority held that if the tenant had taken only the vacant land and the superstructure is put up by him, he would not have allowed such a finding to be given by the second appellate Court. The tenant who has alleged that he has put up a superstructure has not produced any evidence to prove his ownership over the superstructure. The tenant had only taken advantage of the tax receipts in his favour to claim ownership of the superstructure. After considering the oral and documentary evidence on record including Ex.P.11 which are the rent receipts, the Appellate Authority concluded that superstructure was put up by the landlord. On perusal of Exs.P.14 to P.43 which are also the counter foils of rent receipt books produced by the landlord. The Appellate authority found that the superstructure was put up by the landlord and what was let out was land and building.
10. Admittedly, the tenant had only deposited the rent for the land in the Bank. He has not paid the rent for the superstructure. Even such deposit by the tenant in the Bank is not contemplated under the Rent Control Act, unless the landlord refuses to receive the rent and the landlord had nominated the Bank of his choice. Therefore, the mere deposit of rent in a Bank that too only for the land will not absolve the liability of the tenant from committing default.
11. The next question is with regard to the demolition and reconstruction. In so far as the demolition and reconstruction is concerned, the Appellate Authority found that the existing superstructure in the property was only a temporary shed. Therefore, the Appellate Authority felt that the intention of the owner to pull down the temporary structure and put up a new construction is bona fide and there is no doubt about the same. Hence on the ground of willful default and demolition and reconstruction, the Appellate Authority had ordered eviction. In the absence of any proof to show that the tenant is the owner of the superstructure, the tenant had denied the title of the landlord. Admittedly, the superstructure is on a septic tank which is broken and causing health hazard. Therefore, the landlord wanted to remove the old structure and up a new building. The Appellate Authority on a re-appreciation of evidence came tot he conclusion that the need is bonafide and the superstructure requires removal.
12. The tenant had not only admitted the default in payment of rent but also had denied the title of the landlord which would disentitle him from occupying the premises and when the Appellate Authority has found that the requirement of the land is bona fide for putting up a new construction, there is no reason warranting any interference in the same.
13. Accordingly, this Civil Revision Petition is dismissed and the order of eviction passed in R.C.O.P.No.121 of 1999 dated 18/8/2001 by the learned Principal Rent Controller (Principal District Munsif), Tirunelveli, is confirmed. Three months time is granted to the tenant to vacate the premises. No costs. Consequently, the connected Civil Miscellaneous Petition No.312 of 2004 is also dismissed.
16/3/2015 mvs.
Index: Yes/no website: Yes/No To
1. The Rent Control Appellate Authority (Prl.Sub-Judge), Tirunelveli, 2. The Principal Rent Controller (Principal District Munsif), Tirunelveli.
PUSHPA SATHYANARAYANA,J mvs.
order made in C.R.P.NPD (MD) No.91 of 2004 16/3/2015