Madras High Court
Elumalai Naicker .. Petitioner - vs - on 17 April, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.04.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.(NPD).No.3086 of 2010 and M.P.No.1 of 2010 Elumalai Naicker .. Petitioner -Vs- Kanchanamala .. Respondent Petition filed under section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the Judgment and decree dated 09.08.2010 made in RCA.224 of 2004 on the file of the VII Judge, Court of Small Causes, Chennai, confirming the order and decreetal order dated 21.01.2004 made in RCOP.No.290 of 2001 on the file of the XVI Judge, Court of Small Causes, Chennai. For Petitioner : Mr.P.Haridass, Senior counsel for Mr.K.Shakshpere For Respondent : Mr.D.Rajagopal .......... O R D E R
This revision is directed against the order passed by the learned Rent Control Appellate Authority in RCA.No.224 of 2004 dated 09.08.2010 confirming the eviction order passed by the learned Rent Controller made in RCOP.No.290 of 2001 dated 21.01.2004 on the ground of wilful default.
2. The Revision Petitioner was the tenant and the respondent herein was the landlady before the learned Rent Controller.
3. For convenience sake, the parties are addressed as landlady and tenant, even though the landlady and tenant relationship has to be decided in this order.
4. The brief facts of the case of the petitioner / landlady before the Rent Controller would be as follows:-
The petitioner has purchased the property bearing Door No.63, R.K.Mutt Road and also No.14, Arunagiri Mudhali Street, Mandaveli, Madras - 600 028 under a registered sale deed executed by Mrs.Janakiammal. At that time, one Duraisamy Naicker was residing in a portion of the property and also rearing cattle in the asbestos shed in the rear portion of the property bearing No.14, Arunagiri Mudhali Street, Madaveli, Madras - 600 028. The said Duraisamy Naicker attorned the tenancy and paying the monthly rent to the petitioner till his death during June 1996. Subsequent to the death of Duraisami Naicker, the respondent has been continuing the occupation of the portion and the cattle shed, but not paid any rent to the petitioner. The respondent has committed wilful default in payment of rent from June 1996 till the end of December 2000. Therefore, the respondent has to be evicted on the ground of wilful default.
5. The brief facts of the case of the respondent / tenant before the Rent Controller as stated in the statement of objections would be as follows:
The petition property belongs to G.Saraswathi Bai. Hence, the said Janakiammal has no right to sell the property to the petitioner. Mr.Duraisamy Naicker, who is the paternal uncle, entered into transaction for purchase of vacant land alone from deceased Saraswathi Bai. In view of the above, the respondent's uncle enjoyed the property as the owner. On the vacant site given to Duraisamy Naicker, he and the respondent put up pucca building. After the demise of Duraisamy Naicker, the respondent is enjoying the property as owner. The respondent is occupying only No.14, Arunagiri Mudhali Street, Madaveli, Madras - 600 028 and not No.63, R.K.Mutt Road. This itself shows that the petitioner is not aware of the ownership of the property. So, the default in payment of rent to the petitioner does not arise at all. The petitioner had never approached for payment of rent so far. Since the petitioner is not the owner of the property, she is not entitled to collect the rents from the respondent. Hence, this petition is not maintainable, and therefore, this petition is liable to be dismissed.
6. The learned Rent Controller had framed relevant points for enquiry and after enquiry, he found that the revision petitioner herein was the tenant and he had committed wilful default in paying the rent and therefore, the eviction order was passed. Aggrieved against the said eviction order, the tenant preferred an appeal in RCA.No.224 of 2004 before the learned Rent Control Appellate Authority. The learned Rent Control Appellate Authority heard both sides after framing necessary points in the appeal and had come to the conclusion of confirming the eviction order passed by the learned Rent Controller and thus, dismissed the appeal. Again aggrieved by the orders passed by the learned Rent Control Appellate Authority, the tenant has preferred the Revision before this Court.
7. Heard Mr.Mr.P.Haridass, learned senior counsel appearing for Mr.Shakshpere, learned counsel for the revision petitioner / tenant and Mr.D.Rajagopal, learned counsel for the respondent / landlady.
8. The learned senior counsel appearing for the revision petitioner / tenant would submit in his argument that the eviction petition has been filed by the landlady under the provisions of Section 10(2)(1) of the Act for the alleged commission of wilful default, whereas the tenant had disputed the relationship of landlady and tenant, since there was no payment of rent or any agreement in between both the parties to pay the rent for the occupation of the demised building to the landlady. He would also submit that the landlady even though stated that the tenant was in occupation of the the demised premises as a tenant after one Duraisamy Naicker, who was a tenant under the landlady, and the tenant did not pay any rent after the death of Duraisamy Naicker, the said circumstance would not create any relationship of landlady and tenant and therefore, there cannot be any application of the Act. He would further submit in his arguments that the courts below have found that the tenant was in possession of the demised premises on the basis of the boundary description given in the sale deed produced by the landlady and that would not itself create a relationship of landlady and tenant unless the tenant had paid the rent to the landlady.
9. He would also submit that PW.1 has categorically admitted that no amount has been paid towards rent by the tenant from the date of death of Duraisamy Naicker. He would also submit in his argument that the tenant has claimed title to the premises from one Saraswathi Bai, from whom Duraisamy Naicker, the paternal uncle of the tenant and thereafter, the respondent had bought the property and had paid tax and also obtained electricity service connection and paid electricity charges for the said premises. He would further submit that door numbers given as D.No.63 of R.K.Mutt Road and D.No.14 of Arunagiri Mudhali Street, would show that the property in occupation of the tenant would not belong to the landlady and therefore, there is a bona fide dispute regarding the title of the suit property. He would further submit that when there is a bona fide dispute in respect of the title to the suit property, the civil court alone has got jurisdiction and no eviction petition could be filed. He would also submit that the landlady has cleverly filed the eviction petition in order to avoid law of limitation, if she approaches the civil court. He would also submit that when there is no jural relationship of landlady and tenant in between the parties, there would not be any question of payment of rent to the landlady and there would also be no arrears of rent to be paid nor any default much less wilful default would come. He would also submit that even the title is disputed then the petition should have been filed under Section 10(6) of the Act. He would also refer to a judgment of the Hon'ble Full Bench of the Kerala High Court reported in 2006 (4) CTC 353 (P.M.Parthakumar ..vs.. Ajith Viswanathan and others) for the principle that when the tenant denies the title of the landlady, which would mean a tenant who denies his status as tenant of the premises also. He would, therefore, request the court to find both the courts below have erred in construing a wilful default in payment of rent when the relationship of landlady and tenant itself has not been established and therefore, the Revision Petition has to be allowed and to set aside the order passed by the learned Rent Control Appellate Authority in confirming the eviction order passed by the learned Rent Controller.
10. The learned counsel appearing for the respondent / landlady would submit in his argument that the tenant had categorically admitted the title of the landlady and therefore, he cannot subsequently challenge the title. He would further submit that the alleged owner of the premises, where the tenant was in occupation, namely Saraswathi Bai was not the owner of the property and the electricity power connection and the payment of electricity and other property tax would not give any title either to the tenant or to the said Saraswathi Bai since no title was devolved upon them. He would also submit that the tenant himself, when he was examined as RW.1, categorically admitted that the demised property was purchased by the landlady from one Janaki Ammal and she is in occupation of the backyard of the demised property. Therefore, he would submit in his argument that even though the tenant was denying the title of the landlady in the counter as well as in his chief examination, he had categorically admitted the title of the landlady during his cross examination. He would also submit that when the tenant himself admitted the title of the landlady regarding the property in his possession, he is bound to pay rent as the previous occupier paid it to the landlady. He would also submit in his argument that the relationship of landlady and tenant would be automatically created, when the title of the landlady has been admitted by the tenant and his possession was continued as tenant after Duraisamy Naicker. The admission of the tenant that he was the tenant under one Saraswathi Bai and he was in possession of the demised premises as a tenant, he could be considered only as a tenant of the landlady and not under any other person. He would also submit that when the property has been shown to have belonged to the landlady since the tenant himself had admitted that his possession was as a tenant in the demised premises, he would be the tenant under the landlady only and he could not be considered as a tenant of some other person. He would also submit that a detailed enquiry was conducted in respect of fixation of fair rent in a separate proceedings and a sum of Rs.21,500/- was fixed in the fair rent petition. He would also submit that the tenant had preferred revision in respect of an order passed in Section 11(4) application and the direction to pay the admitted arrears as was confirmed by this court and a sum of Rs.1,00,000/- has been deposited by the tenant before the learned Rent Controller. He would also submit that even though the said order was clarified subsequently by this court that the learned Rent Controller as well as Rent Control Appellate Authority to act without influence of the said findings of this Court, both the courts below have categorically found the relationship of the landlady and the tenant and the wilful default in payment of rent and had ordered eviction on that ground. He would also submit that the definition of tenant under Section 2(8) of the Act would certainly include a person, who is eligible to pay the rent for the premises. Similarly, the definition of the landlord / landlady in Section 2(6) of the Act would also define a person, who is entitled to receive the rent for the demised premises. Both the definitions do not say that there should be an agreement in between the parties before claiming the relationship of landlady and tenant. He would further submit in his arguments that the tenant had deposited the money only upon the filing of Section 11(4) application and he did not pay or deposit any money without prejudice to his claim and therefore, the subsequent conduct of the tenant would go to show that there was a wilful default even during the pendency of eviction proceedings. He would rely upon a judgment of this Court reported in 1997 (III) CTC 39 (S.Venkataesulu ..vs.. V.Chandra). He would also rely upon a judgment reported in 1996 (2) LW 752 (Venkiduswami Pilllai M.V. and 10 others ..vs.. S.Swaminatha Rao) for the principle that the landlady need not chase the tenant to get the monthly rent.
11. He would also rely upon a judgment of this Court reported in 1997 LW 212 (Sambandam ..vs.. Saraswathi Ammal) for the principle that when there was a concurrent finding and the appellate authority had also no perversity in reaching such finding, there would be no cause to interfere with the said finding under Section 25 of the Act. He would rely upon the judgment of the Hon'ble Apex Court reported in 2004 (4) LW 231 (Ram Dass ..vs.. Davinder) for the principle that the High Court, while exercising its revisional jurisdiction, cannot entered into re-appreciation of evidence should be done. He would, therefore, request the Court that the non-payment of rent in respect of the demised premises was therefore wilful and the denial of title of the landlady was also not bona fide and in the said circumstance, the eviction order passed by the learned Rent Controller, which was confirmed by the learned Rent Control Appellate Authority, may not be interfered and the Civil Revision Petition may be dismissed.
12. I have given anxious thoughts to the arguments advanced on either side.
13. The landlady is said to have purchased the demised premises in the year 1989 from one Janaki Ammal. The said document was produced as Ex.P2. In Ex.P2, it has been categorically referred that the said Janaki Ammal was the daughter of one Appasamy Vandaiyar. It is further stated that the said Appasamy Vandaiyar left his wife Mrs.Rajayee Ammal, who died on 01.05.1989 and thereafter, the said Janaki Ammal D/o. Appasamy Vandaiyar was alone legal representative of both Appasamy Vandaiyar and Rajayee Ammal and thereby, she got the title to the suit property and she conveyed the same in favour of the landlady. The said property described in Ex.P2 sale deed was in Old D.No.41, New D.No.63 in R.K.Mutt Road, Mylapore, measuring totally about 2119 sq.ft. The said property was bounded on the north by house of Venkatachala Sastri, South by Arunagiri Mudhali Street, West by R.K.Mutt Road and East by Mari Chetty Street. The said boundaries of the property purchased in Ex.P2 were shown to have been road and streets except on its northern side. Therefore, the portion lying on the back of the said house would be Arunagiri Mudhali Street. The said document has been produced by PW.1 and he had spoken to that effect of proving the said document. When we go through the evidence of RW.1 - tenant, he would admit that the petition mentioned property is D.No.63, R.K.Mutt Road and the said land is located behind the said house and the said property is totally measuring 2119 sq.ft and the tenant was in occupation of the backyard, which is a part of the demised building. This admission of RW.1 would go to show that he is in occupation of the demised property as conveyed in Ex.P2. Even in his chief examination done on 30.10.2003, he would further admit that the demised premises in D.No.63, R.K.Mutt Road was also lying on the side of the Arunagiri Mudhali Street and the Corporation has mistakenly assessed the said property in Door No.14, Arunagiri Mudhali Street. Tax was paid by Saraswathi Bai as per Ex.R3. No doubt, the occupation of the tenant in the demised premises, in which the assessment as Door No.14 has been given for the said area, was also admitted by RW1. Therefore, there is no confusion in respect of the demised property, comprised in Ex.P2.
14. The learned Rent Control Appellate Authority had extracted the evidence of RW.1 in paragraph 10 of its judgment and had come to the conclusion that the tenant was in occupation of the premises only as a tenant of one Saraswathi Bai, since he admitted that the property was belonging to the landlady and therefore, he could be presumed only as a tenant of the landlady. The said finding has been reached by the learned Rent Control Appellate Authority on the basis of the evidence of the tenant examined as RW.1. The said admission would make the case of the tenant that the landlady was not the owner of the demised property and there was no landlady and tenant relationship in between himself and the landlady it could not be a bona fide one. In the said circumstances, I could see that the finding of the learned Rent Control Appellate Authority in concurrence with the Rent Controller was based upon the oral and documentary evidence produced by both the parties. Whether such concurrent finding of the Rent Control Appellate Authority be varied in appeal? If so, on what circumstances is the question to be answered.
15. In the judgment of the Hon'ble Apex Court reported in 2004 (4) LW 231 (Ramdass ..vs.. Davinder), it has been categorically held as follows:-
" 6. The appellate authority has made an independent evaluation of the evidence and confirmed the findings of the Controller. The High Court has, while exercising its revisional jurisdiction, entered into re-appreciation of evidence not open to the High Court, more so, keeping in view the manner in which the exercise has been undertaken by the High Court. To say the least, we find that there is to some extent misreading of the evidence by the High Court. .......... Thus the High Court has proceeded to reverse, on erroneous assumptions, the findings of facts concurrently arrived at by the two authorities below and such exercise by the High Court as also the conclusions drawn therefrom, we find difficult to countenance inasmuch as they are vitiated. We are clearly of the opinion that the High Court has exceeded its jurisdiction in reversing the well considered findings of fact arrived at by the two courts below"
In the said judgment, it has been clearly mentioned that the High Court need not re-appraise the evidence to come to a different conclusion.
16. In the judgment of this Court reported in 1997 LW 212 (Sambandam ..vs.. Saraswathi Ammal), it has been categorically laid down as follows:-
11. ...... It is not necessary to reiterate what materials had been already taken into account in CRP.No.2875 of 1983 and therefore, when courts below have concurrently held, on an analysis of the relevant evidence adduced herein that the superstructure belongs to respondent, no perversity in the finding having been made out, no cause is made out to interfere under Section 25 of the Act 18 of 1960. It is only that portion of the order which dealt with the terms and conditions of Ex.P3, and which had been separately considered, it is beset with an incorrect understanding of the law relating to unregistered lease deeds."
17. On a careful perusal of the aforesaid judgment, I could see that when there is no perversity on the part of the learned Rent Control Appellate Authority in reaching to a conclusion, there is no necessity for the revisional court to interfere with the said finding. In the earlier paragraphs, it has been held that the learned Rent Control Appellate Authority has reached its finding purely on the basis of the evidence in a correct perception of evidence and there is no perversity on its part for reaching to a conclusion. Therefore, the finding of the learned Rent Control Appellate Authority need not be disturbed as there is no grave error pointed out in this Revision.
18. The learned Rent Control Appellate Authority is of clear view that the tenant did not pay any rent without prejudice to his right even though, he admitted that he was not the owner of the property. Apart from that the denial of the title by the tenant prior to the filing of the petition was found to be not bona fide, in view of his admission in his cross examination. Therefore, the finding of the learned Rent Control Appellate Authority in confirming the order of eviction passed by the learned Rent Controller is not liable to be interfered or disturbed.
19. For the foregoing discussion, I am of the considered view that the Revision Petitioner has not made out any case to interfere with the concurrent finding reached by the learned Rent Control Appellate Authority in confirming the eviction order of the learned Rent Controller against the tenant. Therefore, I am of the considered opinion that the Revision Petition has no legs to stand either to interfere with the concurrent finding reached by the learned Rent Control Appellate Authority or to set aside the same and hence, the Civil Revision Petition is liable to be dismissed.
20. Accordingly, the Civil Revision Petition is dismissed and the order of eviction passed by the learned Rent Controller as confirmed by the learned Rent Control Appellate Authority are confirmed. Time for vacating the premises is four (4) months. No costs. Consequently, connected Miscellaneous Petition is closed.
mra .04.2012 Index : yes/no Internet : yes/no To: 1. The VII Judge, Court of Small Causes, Chennai. 2. The XVI Judge, Court of Small Causes, Chennai. V.PERIYA KARUPPIAH,J., mra Pre-delivery order in C.R.P.(NPD).No.3086 of 2010 and M.P.No.1 of 2010 17.04.2012