Madras High Court
T. Palanisamy Gounder vs A.V.G. Ponnusamy Chettiar And Sons, By ... on 17 November, 1998
Equivalent citations: (1999)1MLJ459
ORDER K. Govindarajan, J.
1. The petitioner/landlord who got an order of eviction before the Rent Controller and failed before the appellate authority, has filed the above revision.
2. The landlord filed the petition in R.C.O.P.No. 5 of 1989 on the file of the learned Rent Controller/District Munsif, Erode under Sections 10(2)(i), 10(2)(vii), 10(3)(iii)and 14(1)(b) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 against the respondents/tenants. According to him, the demised property originally belonged to one S. Gouthaman and it was leased out to the second respondent therein for a monthly rent of Rs. 650, and the second respondent therein was carrying on business in the said premises as a shroff merchant. Respondents 2 to 4 herein are his sons, who formed themselves into a partnership under the name and style of A.V.G. Ponnuswany Chettiar and Sons. According to the landlord, he purchased the property in question on 15.7.1988 under a registered sale deed. On 18.7.1988 he sent a letter to the 2nd respondent therein/tenant asking to pay the future rent to the petitioner/landlord. In spite of repeated demand, according to the petitioner, in person and through registered notice dated 5.12.1988, the tenant/2nd respondent therein did not pay the rent. So, according to him, the said default is wilful and so the respondents therein are liable for eviction. The landlord also has sought for eviction on the ground that the premises is required for his own occupation for carrying on his shroff and pawn broker business. He has also stated in the petition that for the reply to the notice dated 5.12.1988 the tenant has raised several false allegations that the premises is a trust property, and the vendor has no right to alienate the property to the petitioner and thereby the petitioner did not acquire any right or title over the property in question. Since the tenant had denied the title which is not a bona fide one, he is liable for eviction on that ground also. He has also sought for eviction on the ground that the building requires immediate demolition and reconstruction. An affidavit was also filed by the petitioner stating that he is having sufficient funds for constructing a new building after demolition and he produced the photostat copies of the approved plans and licence granted by the municipality. He has also given an undertaking in the said affidavit which is required under law.
3. The respondents therein filed counter stating that the property in question does not belong to the said Gouthaman, and the property is a trust property, and the tenant was paying the rent to the trustees in management. The sale of the property by the said Gouthaman to the petitioner ipso facto invalid and void. No right title, or interest will pass on under the alleged sale to the petitioner. The petitioner is not entitled to claim as the owner of the building and he cannot satisfy the definition of landlord. With respect to the bona fide requirement of the building for his own occupation, the respondents denied the averments contained in the petition. In the additional counter filed by the third respondent which was adopted by the other respondents it is stated that the property in question is a public trust and as per G.O.No. 2000, Home Department, dated 16.8.1976, the said property is exempt from the purview of the Act 18 of 1960 and so the petition is not maintainable. Regarding default in payment of rent, it is stated that there is no wilful default in payment of rent and the building is in good condition and so it does not require immediate demolition and reconstruction. An advocate-commissioner was appointed at the instance of the petitioner and after inspection he filed the report. The Rent Controller in the order dated 4.11.1991 found that the denial of title is not a bona fide one, that the tenants had committed wilful default in payment of rent, that the building is required for the, petitioner's own occupation and that the building requires immediate demolition and reconstruction. On the basis of of the abovesaid findings, the Rent Controller ordered eviction. Aggrieved, the tenants filed appeal in R.C.A.No. 2 of 1991. The learned appellate authority/Sub-Judge, Gobichettipalayam went into the title of the property as disputed by the tenants and found that it is a trust property and so the petition is not maintainable under the provisions of the said Act as the same is exempted from the provisions of the said Act, under. G.O.No. 2000, Home Department, dated 16.8.1976. It is also found that the denial of title by the tenants is a bona, fide one. On the basis of the abovesaid findings the appellate authority allowed the appeal and set aside the order of eviction. Still aggrieved, the landlord has filed the above revision.
4. Since the appellate authority has not gone into the questions as to whether the tenants had committed wilful default in payment of rent, whether the buildings requires immediate demolition and reconstruction and whether the landlord requires the premises for his own occupation, I am not dealing with the same.
5. To decide the issue in question, the following facts are necessary. The property originally belonged to one Venkata Naicker. He had two sons, namely, Krishnasami and Ramasami. Ramasami died issueless. Krishnasami had one son namely Sampath. His son is one Gouthaman. From the said Gouthaman, the petitioner purchased the property under Ex.P-1 dated 15.7.1988. The said Venkata Naicker executed a trust deed under the document dated 7.9.1900. Under the said trust deed certain properties of the trust had been allotted to do some charities from the income of the said properties. In view of the fact that he sold some of the properties mentioned in the document dated 7.9.1900, he created another trust deed dated 12.4.1911. On 14.11.1945 his two sons Krishnasami and Ramasami entered into partition and divided the family properties. Till 1930, after the death of the said Venkata Naicker, the said Krishnasami Naicker and Ramasami Naicker managed jointly the properties mentioned in the abovesaid documents. Thereafter, pursuant to the registered document dated 16.11.1931 Krishnasami Naicker alone had been managing the said properties. Thereafter Ramasami Naicker was managing the said properties from 16.11.1945, till 1.8.1951, on which date a family arrangement was entered into between the parties by a registered document. Under the said family arrangement, the properties mentioned under the documents of the year 1900 and 1911 were divided into two. 'B' schedule property was given to Ramasami Naicker, and 'A' schedule property was allotted to the heirs of Krishnasami Naicker. According to the said document, the parties concerned can absolutely manage the properties according to their will and pleasure. The property in question is added in the schedule 'A', thereby it came to the management of Krishnasami branch, admittedly, the rent was being paid only to the said branch of Krishnasami, by the tenants. The receipts were given originally in the name of E. Venkata Naicker trust, Erode/E.V. Krishnasami Sons (management). From July, 1984, the receipts were given by the said Gouthaman, mentioning him as the proprietor of the property, till the said property was sold to the petitioner. After selling the said property, it is not in dispute that under Ex.P-3 the said Gouthaman also sent a notice to the tenants to pay the rent to the petitioner. On the abovesaid undisputed facts, now it has to be decided as to whether the petitioner is entitled for an order of eviction as prayed for.
6. The appellate authority mainly concentrated on the title of the petitioner as to whether his vendor has right to sell the property in question, as the same being the trust property. Unfortunately, the appellate authority failed to appreciate the scope of the said Act itself. Section 2 (6) of the said Act defines 'landlord' which reads as follows:
'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant. Explanation: A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant.
7. On the basis of the abovesaid definition, the learned senior counsel appearing for the petitioner has submitted that since the vendor of the petitioner and the petitioner can be construed as the landlord, they can maintain the eviction petition.
To file a petition under the provisions of the said Act for eviction, the landlord need not be the owner of the property. I seek support from the decision in Kamuthi Madalaichamy v. Thangarathina Nadar , wherein, the learned Judge has held as follows:
...The decision relied on by the learned Counsel for the petitioners reported in Nagalingam v. Ramaswamy (1976) 1 M.L.J. 149. A.I.R. 1976 Mad. 149, will apply to the fact of this case since as far as rent control applications are concerned, it is not the ownership of the property that entitles a person to file an eviction petition, but when a person comes under the definition of 'landlord' mentioned in Section 2(6) of the Act he is entitled to file a petition for eviction. The appellate authority has found that the petitioner is the landlord agreeing with the view of the trial court. With regard to wilful default, I am of the view that the respondent should have deposited the rent into court by filing a separate application under the Act if he has got any doubt as to whom the rent has to be paid. The respondent has not chosen to do so. Having obtained possession as a tenant, it is not open to the respondent to deny the relationship of landlord and tenant. But the learned Counsel for the petitioner has not seriously made any argument with regard to the plea of bona fide requirement for demolition and reconstruction. Even the lower appellate authority has negatived this contention of the petitioner, and I accept the same. Therefore, the respondent is liable to be evicted on the grounds of wilful denial of title and wilful default in the payment of rent. The order of the lower appellate authority is set aside and the order of trial court is restored and the eviction petition is ordered. But in the circumstances, there is no order as to costs. C.R.P. is allowed. Time to vacate three months.
8. Moreover, admittedly, from 1984, accepting the said Gouthaman as the proprietor of the property the rent has been paid though it is stated that the same was paid under protest, which was accepted by the appellate authority. Unfortunately that was not established. Without any material to that effect, the appellate authority has come to the conclusion that the rent paid to the said Gouthaman as proprietor of the property from 1984 was under protest. So, it has to be taken that at all material times, the parties understood that the said Gouthaman as the proprietor of the property from 1984 and the respondents are the tenants under him. While construing the similar issue, the Apex Court in the decision in Kasturchand v. Raman Rajan , has held as follows:
The trial court accepted the contentions of the landlord and ordered eviction on the ground of default. The trial court found that the appellant Kasturchand was the tenant of the premises. All cheques in payment of rent were paid by him in his personal capacity. Receipts were issued to him, and the counterfoils of such receipts were duly signed by him in his personal capacity. At all material times, the parties understood the appellant as the tenant and the respondent as the landlord. This finding was confirmed by the appellate court. In the memorandum of appeal, a ground had been raised for the first time by the appellant to the effect that the plaintiff was not the owner of the building because he had parted with his ownership and possession in favour of his adult sons. Although this ground was raised, apparently no argument was urged, for there is no reference to it in the judgment, and no point was raised on it. This point was, however, urged in revision before the High Court. The High Court found that at all material times, the parties treated each other as landlord and tenant. The appellant understood the respondent as the landlord. The respondent treated the appellant as the tenant. The document evidencing the lease indicated that they understood each other as landlord and tenant.
9. The same view has been taken by the Apex Court in the decision in Sri Ram Pasricha v. Jagannath , has held as follows:
There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth at the earliest opportunity. It was not done. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.
10. A person who is receiving or entitled to receive the rent of a building has to be construed as a landlord. He need not be the owner of the premises. Even the trustee of the property also should be construed as the landlord. In view of the abovesaid specific definition under the said Act, the said Gouthaman either as a person who is entitled to receive the rent or as the trustee, should be construed as the landlord, and he issued the notice to the tenants to pay the rent to the petitioner and so notwithstanding the sale in favour of the petitioner in respect of the property in question, the petitioner should be construed as the landlord as he has been authorised to receive the rent by a notice dated 18.7.1988 issued to the tenants by the said Gouthaman, and thereby he is entitled to maintain the eviction petition in the capacity as landlord. So, it cannot be said that the relationship of landlord and tenants between the petitioner and respondents is not in existence.
11. To say that the authorities below, under the said Act, has no jurisdiction, the learned Counsel for the respondents relied on the Government Order in G.O.Ms.No. 2000, Home Department, dated 16.8.1976. To bring the property within the mischief of the said Government Order, the case of the respondents is that the property belongs to public trust. The learned senior counsel for the petitioner has further submitted that the appellate authority is not correct in holding that the property in question will come under the Public Religious Endowments and Religious Charity so as to bring the same within the mischief of G.O.Ms.No. 2000, Home 'Department, dated 16.8.1976. According to him, the property may be a trust property, but it cannot be construed that the said trust is a public trust. According to the learned senior counsel, the trust is a family trust and it cannot be construed as public religious and charitable trust. The learned senior counsel appearing for the respondents/ tenants has submitted that in view of the findings of His Lordship Mr. Justice Srinivasan, as then was, in Palanisamy Gounder v. Ponnusamy Chettiar , the property should be construed only as a public trust, and the appellate authority is correct in holding that the eviction petition cannot be maintained in view of the exemption granted in the said Government Order. The said Government Order in G.O.Ms.No. 2000, Home Department, dated 16.8.1976 reads as follows:
No. II(2)/HO/4520/76: In exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and, Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960), and in supersession of the Home Department Notification No.II (2)/HO/3811/74, dated the 19th August, 1974, published at page 444 of Part II, Section 2 of the Tamil Nadu Government Gazette, dated 21st August, 1974, the Governor of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the said Act.
So, from the abovesaid Government Order, only the buildings owned by Hindu, Christian and Muslim Religious Public Trusts are public charitable trusts and they are exempted from the provisions of the said Act. The learned senior counsel for the respondents has not brought to my notice any other document or evidence except the said judgment to show that the property in question is a religious public trust or a public charitable trust, So, the said Government order would stand in the way of the petitioner to maintain the petition under the provisions of the said Act.
12. The above decision arises out of an application in I.A.No. 1024 of 1988 on the file of the learned Principal Sub Judge, Erode, seeking leave to institute the suit for framing a scheme for the management of the trust properties. In the said suit the respondents alleged that there is a provision in the document of the trust against any alienation and so, the sale is void, and so there should be a declaration that the alienation in favour of the third defendant (petitioner herein) is null and void and not binding on the trust, for framing a scheme for the enforcement and smooth running of the trust, and for other reliefs. The lower court ordered the application. Aggrieved, the petitioner herein filed revision before this Court in C.R.P.No. 3368 of 1990. While deciding the same, the learned Judge found that the said endowment is a religious endowment under the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959. It is also found that on the averments made in the plaint and on the terms of the documents relied on by the plaintiffs, the trust is a religious endowment as defined by the Act and it is not an exclusive charitable endowment or secular endowment. On the basis of the above discussion, His Lordship found that the application filed by the respondents herein is not maintainable and deserved to be dismissed and thereby allowed the revision. So, the net result is that the respondents' attempt to get a decree for declaration that the sale in favour of the petitioner herein as void had become futile. The learned senior counsel for the respondents has solely relied on that order in support of his submission to bring the facts of this case within the purview of G.O.No. 2000, Home Department, dated 16.7.1976. Unfortunately, he is not able to point out any observation of the learned Judge so as to enable him to bring the property in question within the purview of the said Government Order.
13. The learned Judge, in the abovesaid decision, has rejected the contention raised on behalf of the plaintiff therein, the respondents herein, that the trust is an exclusive religious charity or religious endowment and held that it is only purely a religious endowment. In view of the abovesaid rejection by the learned Judge, the respondents cannot now reagitate the matter in this case. Since they have not established that it is a public religious and charitable trust, the property in question cannot come within the purview of the said Government Order.
14. Though the learned senior counsel for the petitioner has initially raised a dispute that the property in question is not the subject matter of the trust deed, after the clarification by the learned senior counsel for the respondents that the property has been included in the trust deed, the learned senior counsel for the petitioner is not in a position to substantiate his stand with respect to the same.
15. The learned senior counsel for the petitioner has also submitted that even if any such findings, the respondents cannot take advantage of the same given in the said decision in Palanisamy Gounder v. Ponnusamy Chettiar (1992) 1 M.L.J. 109. According to him, the issue in that case, is only as to whether the application for permission to file the suit can be maintained or not. While dismissing the application if certain observations were made, it cannot be said that they are having binding force. Any passing reference when deciding an issue cannot be held as a finding and cannot be used against whom it has been given.
16. In the decision in P.S.E. Board, Patiala v. Ashok Kumar Sehgal 1990 Lab.I.C. 249, the learned Judges have held as follows:
The reasoning of one decision cannot be applied in another case in the absence of similarity of situation or circumstances. It is also worthy of notice that Ravinder Kumar Sharma opted for the ordinary remedy of a suit for declaration and instituted the suit within the period of limitation. No question of neglect, delay or laches could enter in such a situation. The Supreme Court granted the relief to Ravinder Kumar Sharma 1986 Lab.I.C. 2076, after declaring the law by means of its judgment and that judgment is not to be construed as an Act of Parliament. It is to be read in the context of the questions which arose for consideration in the case.
17. The learned senior counsel for the petitioner has also relied on the decision in P.M. Ametropolitan v. Moran Mar Marthoma , wherein the learned Judges have held as follows:
Having dealt with ex-communication, the controversy about spiritual and temporal powers of the Patriarch and Catholicos, their inter-relationship and the extent to which they have become final by earlier decisions, particularly Moran Mar Basselios A.I.R. 1954 S.C. 526 operate as res judicata may be examined. The pleadings of the parties giving rise to various issues and the question framed by the Division Bench and answered by it have been extracted in extenso. The crucial issue that had been argued was whether the direction of this Court in Moran Mar Basselios 'that the judgment of the Kerala High Court is set aside, the decree of the trial court dismissing the suit must be restored', resulted in restoring the decree and not the judgment, therefore, any finding recorded in that suit could not operate as res judicata. In Satyadhyan Ghosal v. Smt. Deorajin Debi , this Court insisted on finality in the strict sense of the term and observed as under (para 13 of A.I.R.) The very fact that in future litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the terim.
This was affirmed by a Constitution Bench in The Mysore State Electricity Board v. Bangalore Woollen Cotton and Silk Mills Ltd. and it was observed (para 12 of A.I.R.) 'It is well settled that in order to decide whether a decision in an earlier litigation operates as res judicata, the court must look at the nature of the litigation, what were the issues raised therein and what was actually decided in it... it is indeed true that what becomes res judicata is the 'matter' which is actually decided and not the reason which leads the court to decide the 'matter'.
These observations are well settled and reiterate established principle laid down by the courts for the same, sound and general purpose for which the rule of res judicata has been accepted, acted, adhered and applied, dictated by wisdom of giving finality even at the cost of absolute justice.
18. The Division Bench of this Court also in the decision in Manonmaniam Sundaranar University v. K.S. Arts College , following the decision of the Punjab and Haryana High Court and other Supreme Court cases, has held as follows:
Mr. Chandru argued that the law declared by the Supreme Court would in view of Article 141 be binding upon all the petitioners before the High Court and not merely to a particular petitioner as against whom the State had preferred the appeal. The court held in the case of P.S.E. Board, Patiala v. Ashok Kumar Sehgal 1990 Lab.I.C. 249, that it is the principles of law culled out from a judgment of the Supreme Court which alone are declaratory for the nation, and the effective order of the Supreme Court whereunder justice was done to the parties is binding on the parties. Thus while following the ratio of a decision of the Supreme Court, it is not obligatory for the lower Courts to regulate reliefs always on the lines of the Supreme Court decision which is being followed.
So, from the above discussion, the issue raised in the decision in Palanisamy Gounder v. Ponnusamy Chettiar , is only as to whether the respondents are entitled for leave to file the suit, and that was rejected, and the Apex Court also confirmed the said order and so it cannot be said that the learned Judge has decided as to whether the trust in question is a public trust or not.
19. As stated earlier in this case admittedly, the respondents are paying the rent as tenants to the predecessors-in-title of the petitioner and the predecessors-in-title, Gouthaman, had also authorised the petitioner to receive the rent. The learned senior counsel for the petitioner has submitted that unless the dispute is settled, as claimed by the tenants, the tenants are estopped from denying the landlord's title. He has sought support from the decision in Chinniah Gounder v. Ponnusami and the same has been accepted by the Division Bench of this Court in S.M. Sheik Abdulla, Muthavalli v. N.K. Kaliyanam, etc. and three others (1995) 1 L. W. 728.
20. On the basis of the abovesaid discussions, now it has to be found out whether the denial of the title of the landlord by the tenants to the property is a bona fide one or not. In this case, for the notice issued by the said Gouthaman and the petitioner, the tenant in the R.C.O.P. has come forward with the clear case that the said Gouthaman is not having any right to alienate the property, and the petitioner has not derived any title under the sale deed Ex.P-1 and so the landlord cannot maintain the petition. The said defence was effectively pressed into service even before the appellate authority. While construing the similar issue, under the Kerala Buildings (Lease & Rent Control) Act, in the decision in Joseph v. Thomas (1987) 2 K.L.T. 1029, the learned Judge has held as follows:
'bona fide' (or good faith) is a familiar term in legal parlance. Honesty, of course is one of the attributes of good faith, but that is not enough in certain contexts that which is done in good faith. But the word 'bona fide', when used in relation to jurisdictional permutations, has a wider import and a higher degree than the other two attributes.
21. A finding that tenant's denial of title is bona fide can be sustained only if the denial is based on a very fair and reasonable supposition of the plea on the strength of strong and- substantial materials. From the above discussions it is very clear that such materials are lacking in this case. Once it is held that the relationship of landlord and tenant is established, the principles of estoppel under Section 16 of the Evidence Act applies and so the respondents/tenants are barred from disputing the title of the petitioner. In spite of their failure in their attempt to file a suit to declare the sale in favour of the petitioner as void and having paid rent to the vendor of the petitioner as proprietor of the property and in spite of the letter dated 18.7.1988 by the vendor, the respondents have disputed the title of the petitioner and of his vendor.
22. From the above mentioned discussions, it is clear that the denial of title of the petitioner cannot be said to be a bona fide one and the tenants are liable to be evicted from the property on that ground. The .appellate authority has not at all applied his mind on the abovesaid settled principles.
23. For the foregoing reasons, the order of the appellate authority cannot be sustained and it is set aside, and, in view of the findings that the denial of title of the petitioner by the tenants/respondents in respect of the premises in question is not a bona fide one, the order of eviction passed by the Rent Controller is restored. Consequently, this revision is allowed. No costs.