Bombay High Court
Smt. Sumati Naik vs Shri Dilip Fatarpekar & Others on 24 November, 1998
Equivalent citations: 1999(3)BOMCR597
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. The points for determination which arise in the present petition are:--
i) Whether the Rent Controller can proceed to hold an enquiry under section 21 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, hereinafter referred to as the said Act, unless the applicant landlord prima facie establishes the existence of the relationship of the landlord and the tenant between the applicant and the opponent.
ii) Whether in case of failure on the part of the applicant landlord to establish prima facie such relationship, mere denial of title of the landlord ship of the applicant would justify eviction of the opponent under the said Act.
2. The facts in brief relevant for the decision are that the respondent No. 1 herein filed an application for eviction of the petitioner on the ground that the father of the respondent No. 1 had leased out two rooms of the house bearing No. 23 situated in Ward No. 9 at Tisk, Ponda and that the petitioner had defaulted in the payment of rent since May, 1981 and that inspite of the notice served upon the petitioner, no payments were made in relation to the arrears as required under the law. The claim of the respondents was sought to be disputed by the petitioner on the ground that she was the mundkar of Fabrica to whom the property in which the house existed belonged and that she had never paid any rent to the respondent No. 1. The petitioner denied the case of the respondent No. 1 regarding the petitioner being the tenant of the respondent No. 1. Therefore, the matter was proceeded under section 21 of the said Act and on account of denial of title, the petitioner was called to establish the bona fide of his denial by leading necessary evidence prior to the evidence of the respondent No. 1. The petitioner examined herself and two more witnesses namely Satyawan Gaude and Silverio Gracias whereas the respondent No. 1 examined himself and one witness by name Shrirang S. Dongrekar. The Rent Controller by his Order dated 28th February, 1990 held that the denial of title of respondent No. 1 as landlord of the premises by the petitioner was not bona fide and, therefore, by exercising powers under section 22(2)(g) of the said Act, ordered the eviction of the petitioner. The petitioner challenged the Order before the Administrative Tribunal in Eviction Appeal No. 12/90. However, the Appeal was dismissed by the impugned order dated 1st June, 1995.
3. Shri S.D. Lotlikar, learned Advocate for the petitioner while assailing the impugned judgment as well as that of the Rent Controller submitted that both the authorities below have adopted wrong approach in the matter while considering the matter in controversy and have analysed the materials on record assuming that the burden of proving the denial of title to be bona fide was upon the petitioner without considering and totally overlooking the basic requirement of law which required the respondent No. 1/landlord to establish the existence of relationship of tenant-landlord between the petitioner and respondent No. 1 before considering the aspect of denial of title of landlordship of the respondent No. 1. Drawing my attention to the provisions contained in section 22(1) of the said Act, he submitted that in cases where a proceeding for eviction of the tenant is filed in Court of Rent Controller under the provisions of the said Act, it is necessary for a landlord to establish prima fade that there exists relationship of the landlord and tenant between the applicant and the opponent and only then the Rent Controller assumes jurisdiction to entertain the application and to look into the grievance of the landlord regarding the claim against the opponent for seeking his eviction and unless such relationship is prima facie disclosed and established, there cannot be a question of holding any enquiry or concluding the denial of the title of landlordship of the applicant by the opponent to be not bona fide. Taking me through the judgments of the Rent Controller and the Administrative Tribunal, the learned Advocate submitted that neither of the lower Authorities has held that the materials on record in any manner disclosed existence of relationship between the petitioner and the respondent No. 1 as that of landlord and tenant. In that regard, he also drew my attention to the depositions of the parties and the witnesses recorded before the Rent Controller which according to learned Advocate clearly disclose total absence of relationship of tenant and landlord between the petitioner and the respondent No. 1. He sought to rely upon the judgment of the Apex Court in the matter of Dr. R.G. Ranbir Singh v. Asharfi Lal, .
4. Shri R. G. Ramani, learned Advocate for the respondent No. 1 on the other hand submitted that both the authorities below after detail consideration of entire materials on record have held that the denial of title of the respondent No. 1 as being the landlord of the suit premises by the petitioner to be not bona fide and that itself disclose that both the authorities have held that there exists relationship of tenant and landlord between the petitioner and the respondent No. 1 respectively. He further submitted that the said finding is based on assessment of materials on record and the perusal of evidence recorded before the Rent Controller clearly discloses that the findings arrived at by the authorities below can in no way be held either perverse or arbitrary. Drawing my attention to the findings arrived at by the authorities on the analysis of the materials on record, he submitted that the same disclose that the respondent No. 1 had served necessary notice demanding the arrears of rent as long back as on 18th March, 1986 and was duly received by the petitioner on 21st March, 1986 but was not replied. Even after the order of eviction being confirmed by the Administrative Tribunal, the petitioner had filed a suit before the Civil Court without succeeding to obtain any injunctive relief against respondent No. 1. The petitioner even approached the Appellate Court against the order of the trial Court but could not succeed in getting any favourable order. The challenge to Order dated 1st June, 1995 has been in the present petition nearly after a period of two years from the date of the said order. According to the learned Advocate, the documentary evidence read with the oral evidence on record clearly justifies the findings arrived at by the lower Authorities. In any case, the findings being in relation to the fact about the existence of relationship of landlord and tenant between the parties, it is not permissible for the petitioner to seek intervention of this Court in exercise of its powers under Article 227 of the Constitution of India. According to the learned Advocate, the decision of the Apex Court in the matter of Dr. Ranbir Singh v. Asharfi Lal (supra) rather than assisting the petitioner supports the case of the respondents.
5. There can be no dispute that in exercise of powers under Article 227 of the Constitution of India, the High Court is not empowered to appreciate the evidence on record and to arrive at a finding different from the finding arrived at by the authorities merely because a different view can be taken on assessment of the entire evidence. The point which is sought to be raised by the petitioner is not relating to the incorrect finding arrived at by the authorities on the basis of the evidence on record but relating to the approach of the Courts below while considering the dispute between the parties and the manner in which the same is considered. The point which is sought to be raised in the petition is whether the Rent Controller could have held the denial by the petitioner of title of the landlord claimed by the respondent No. 1 in respect of the suit premises is bona fide or not, without first addressing itself to the point as to whether there exists a relationship of landlord and tenant between the respondent No. 1 and the petitioner respectively. In this regard, the perusal of the judgment of the Rent Controller discloses that there is not even an attempt on the part of the Rent Controller to apply his mind to the fact whether there ever existed relationship of landlord and tenant between the respondent No. 1 and the petitioner, before considering the issue of lack of bona fide. This is apparent on the face of the judgment of the Rent Controller which reads thus:-
"I have gone through the records of the present case and also considered the arguments advanced by the learned Advocates for the parties.
Since the respondent denied the title of the applicant as landlord, the onus to prove that the said denial is bona fide lies on her. It is the case of the respondent as set up by her in her written statement dated 18-8-86 that she is staying in the suit premises for the last more than 15 years in a house constructed by her during the lifetime of the grandmother of the applicant and with her consent as a common wall had to be used for the purpose of construction."
Needless to say that the respondent before the Rent Controller was the petitioner herein. After going through pleadings in the reply of the petitioner and the deposition of the petitioner and her witnesses, the Rent Controller has concluded that it is evident from the record that the suit premises is a bagel attached to the house of the respondent No. 1 and one of the walls of the house of the applicant form a common wall for the house and the bagel and that the petitioner has failed to prove that she constructed the suit premises with her own expenses and with the permission of the Committee and that there is no relationship of landlord and tenant between the respondent No. 1 and herself in respect of the suit premises. After arriving at the said finding based on the evidence placed on record by the petitioner, the Rent Controller has drawn the conclusion that the denial of the title of the respondent No. 1 as the landlord of the suit premises by the petitioner is not bona fide. It is, therefore, apparent from the Judgment of the Rent Controller itself that the Rent Controller did not at all analyse the evidence produced by the respondent No. 1 and only on the basis of the analysis of the evidence produced by the petitioner has held that the petitioner has failed to establish that the suit premises were constructed by her own expenses and with the permission of the Chapel Committee. Simultaneously, the Rent Controller has also concluded that the petitioner has failed to establish that there exists no relationship between the parties as that of tenant and landlord.
6. In terms of section 21 of Rent Act, a tenant cannot be evicted from the leased premises except in accordance with the provisions of Chapter V of the said Act. The proviso to section 21 provides that where the opponent tenant denies the title of the applicant landlord, the Controller shall decide whether the denial is bona fide and record a finding to that effect and, thereafter the applicant landlord can seek for eviction of the opponent tenant through a Civil Court and the Civil Court may then pass a decree for eviction on any of the grounds mentioned in the said Chapter V of the said Act eventhough, the Civil Court finds that such a denial does not involve forfeiture of the lease. In other words, if the Controller finds the denial of the title of the applicant landlord to be bona fide then the landlord has to seek eviction of the opponent tenant through a civil Court. However, if the Rent Controller finds the denial to be not bona fide, certainly the applicant landlord can seek eviction of opponent tenant under the provisions contained in section 22(2)(g) of the said Act. Moreover, it cannot be forgotten that the eviction proceedings contemplated under section 22 in Chapter V of the said Act are of a tenant by his landlord. The expression "tenant" is defined in section 2(p) to mean any person by whom or on v/hose account or behalf the rent of any building is, or but for the special contract would be payable. It also defines that a tenant includes a sub-tenant as also any person in possession after termination of the tenancy as well as the son or unmarried daughter or father or mother in case of death of a tenant. In other words, a tenant is a person by whom the rent is payable for the premises occupied by him. The expression "landlord" is defined in section 2(j) to mean a person who, for the time being is receiving or is entitled to receive the rent of any building, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant. In other words, the landlord is a person who receives or is entitled to receive the rent in respect of the premises in occupation of a tenant. Section 22(1) of the said Act provides that a landlord who seeks the eviction of his tenant shall apply to the Controller for a direction in that behalf. It is, therefore, apparent that the eviction by the Court of Rent Controller can be sought of a person who can qualify to be a tenant within the meaning of the expression "tenant' under the said Act and by a person who can qualify to be a "landlord" within the meaning of the said expression under the said Act and not otherwise. Therefore, it is necessary for the Rent Controller in order to assume jurisdiction to entertain the application for eviction of the opponent, that there must be a relationship of landlord and tenant between the applicant and the opponent. Therefore, when the Rent Controller decides to proceed to hold an enquiry on the ground of denial of title of the applicant as the landlord by the opponent, the Rent Controller has necessarily primarily to satisfy himself that prima facie there exists relationship of landlord and tenant between the parties to the proceedings. The question of denial of title of relationship can arise only when such title exists either by way of admission or prima facie proof in that behalf.
7. The Apex Court in the matter of Dr. Ranbir Singh v. Asharfi Lal (supra) referring to its earlier judgment in the matter of Life Insurance Corporation of India v. India Automobiles and Company and others, has held that in a suit for eviction based on such relationship of landlord and tenant, the Court has only to decided whether the defendant is the tenant of the plaintiff or not, though the question of title if disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In the matter of Life Insurance Corporation of India v. India Automobiles and Company and others (supra) the Apex Court has held that in a suit for eviction between the landlord and tenant the Court will take only a prima facie decision on the issue as to whether the applicant and the opponent are the landlord or the tenant and if the Court finds the existence of relationship of the landlord and the tenant between the parties, it will have to pass a decree in accordance with law. It is further observed therein that the Court has to satisfy itself that the person seeking eviction is a landlord who has prima facie right to receive the rents of the property in question. In other words, the exercise of analysing the materials on record from the point of view of finding out whether the denial is bona fide or not can be undertaken only after the Court prima facie finds existence of the relationship of the landlord and the tenant between the litigating parties. This conclusion is inevitable from the provisions contained in section 21 r/w section 22 of the said Act. Both the questions for determination as formulated above are, therefore, to be answered in the negative.
8. Considering the provisions of law as stated above and reverting to the case in hand, if one peruses the impugned judgment as well as the judgment of the Rent Controller, it is apparent that both the authorities have not at all bothered to find out whether prima facie there exists the relationship of the landlord and the tenant between the respondent No. 1 and the petitioner. The entire exercise had been to find out whether the denial of the title of landlordship of the respondent No. 1 by the petitioner is bona fide or not ignoring the basic issue regarding the existence or non-existence of the relationship of the landlord and the tenant between the parties.
9. Shri R.G. Ramani, learned Advocate appearing for the respondent No. 1 did try to submit that even though there may not be detail analysis on the issue of existence of relationship between the parties to the litigation, nevertheless the analysis on the whole as disclosed from the judgments of the lower Authorities clearly shows that the authorities did apply their mind to the said issue and the same is disclosed from the materials on record, and have held that inspite of existence of such relationship, the title having been denied, the denial thereto has not been bona fide. He further submitted that even assuming without admitting that the courts below have not arrived at a clear finding on the aspect and relationship between the parties, the materials on record certainly disclose existence of such relationship and, therefore, no case is made out for interference in the matter in exercise of powers under Article 227 of the Constitution. However, perusal of the materials on record, particularly the testimony of the respondent No. 1 before the Rent Controller, does not persuade me to agree with the submission by the learned Advocate. The respondent No. 1 in his testimony before the Rent Controller has clearly stated that there is no document apart from the house tax receipts, the agreement of purchase of the land with the Church Committee and the Record of Rights certificate, to show that the premises in question belonged to the respondent No. 1. He has also stated that the petitioner has been occupying the suit premises prior to 10 years from the date of recording of the evidence before the Rent Controller and his mother expired about 10 years prior to the date of recording of evidence and he came to reside in his house after the death of the mother. There is no dispute that the house in occupation of the respondent No. 1 is adjoining the suit premises and in fact the wall between the premises in occupation of the petitioner and that of respondent No. 1 is a common wall. The respondent No. 1 in his deposition has further admitted that he does not have any written agreement with the petitioner in respect of the suit premises and that they were never issuing any receipt of payment of rent to the petitioner. He has also deposed that it was his father who told him that the petitioner is residing as the tenant in the suit premises. His testimony further discloses that there is no door connecting the two rooms in occupation of the petitioner with the premises in occupation of the respondent No. 1, So also, there is no electricity connection or water connection to the rooms in occupation of the petitioner whereas the premises of the respondent No. 1 are provided with such facilities. He also admitted that some time in October, 1983, he filed a complaint to the Municipality regarding illegal construction done by the petitioner in the suit premises and thereupon the Municipal employees inspected the construction and found the same to be old one and did not take any action against the petitioner. He has further admitted that it may be that the petitioner was carrying repairs of the suit premises. Moreover, in his entire testimony he has nowhere stated that the petitioner had at any time paid any rent either to himself or to his father.
10. In fact, plain reading of the testimony of the respondent No. 1 does not disclose any relationship of the landlord and the tenant between the respondent No. 1 and the petitioner in respect of the suit premises. The house tax receipts no doubt refer to the House No. 23. However, it does not disclose that the House No. 23 also includes the area in occupation of the petitioner. It is true that the records do not disclose any registration of the suit premises independently in favour of the petitioner with the Municipality of Ponda. Moreover, the evidence on record also disclose and the findings in that regard by the courts below are that the petitioner had filed necessary application for registration of the suit premises in her name with the Ponda Municipality after institution of the present proceedings. The issue relevant for the decision is not of ownership of the premises but one regarding the entitlement of the respondent No. 1 to claim rent from the petitioner in respect of the suit premises. Only the payment of rent, in the facts and circumstances of the case, could have been of help to establish the relationship between the parties as that of the tenant and the landlord. Mere absence of registration of the premises in the Municipal records in favour of the petitioner that by itself cannot lead to the conclusion that the petitioner is a tenant in respect of the suit premises and that of the respondent No. 1 is her landlord. As regards the survey records, the contention of the respondent No. 1 in the deposition is that his house occupies an area of 110 sq. metres. The survey records and the certificate of record of right in Form XIV disclose that there are about five houses situated in the property of the Church bearing Survey No. 211/1 wherein lies the suit premises. The records on the face of it do not disclose the area occupied by each of the houses. The certificate also disclose uncultivable area of the property to be 500 sq. metres. Whether the said total area of 500 sq. metres includes the area in occupation of the petitioner or not is not clear. It is true that the name of petitioner is not disclosed in the survey record. But, however, it cannot be forgotten that it is to the common knowledge that the survey was conducted in the year 1971. It is the case of the petitioner that she is in occupation of the premises for about 15 years prior to the filing of the proceedings for eviction. The eviction proceedings were filed in the year 1986. Fifteen years would commence from 1972. If the survey was conducted in 1971, there cannot be any justification to draw any adverse inference against the petitioner on account of absence of her name in those survey records, particularly considering the facts and circumstances of the case. It is true that the petitioner could have made efforts to include her name in the survey record after 1971 since the enquiries regarding the right were conducted thereafter. However, mere failure on the part of the petitioner cannot be of any justification to hold that she is in occupation of the premises as the tenant of the respondent No. 1. The fact that the petitioner is in occupation of the premises is not in dispute. What is relevant for the decision is the existence of relationship of the landlord and tenant between the respondent No. 1 and the petitioner. In that regard, absence of the name of the petitioner in the record of right cannot be of any assistance to decide the issue. The testimony of the respondent No. 1, therefore, on the whole do not in any manner help to decide about the existence of the relationship of the landlord and the tenant between the parties.
11. As already observed above, the courts below have proceeded to decide the denial of title by the petitioner without considering the basic aspect of the case as to whether there existed relationship of landlord and tenant between the parties. As already seen above, even the materials on record do not disclose existence of such relationship. Being so, the findings arrived at by the courts below are apparently arbitrary and perverse and are not borne out from the record and, therefore, cannot be sustained and for the same reasons, the impugned judgment and the judgment of the Rent Controller cannot be sustained.
12. In the result, therefore, the petition succeeds. The judgment of the Rent Controller as well as that of the Administrative Tribunal is quashed and set aside. The application for eviction of the petitioner by the respondent No. 1 is dismissed. Rule is made absolute in the above terms. No order as to costs.
13. Petition succeed.