Madras High Court
Arumugam And Ors. vs Tuticorin Visvakarma Dharma ... on 31 August, 1998
Equivalent citations: (1999)1MLJ266
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
JUDGMENT P.D. Dinakaran, J.
1. While the revisions C.R.P. No. 3500 of 1992 and C.R.P. No. 8 of 1993 were filed by the tenants against the concurrent order of eviction made in R.C.O.P. Nos. 60 and 50 of 1987 on the file of the learned Rent Controller (Additional District Munsif), Tuticorin confirming in R.C.A. No. 68 of 1989 and 5 of 1991 respectively, other revisions namely C.R.P. Nos. 3501 to 3510 of 1992 are preferred by the tenants against the order of eviction passed by the learned, Appellate Authority made in R.C.A. Nos. 75 of 1989, 23 to 30 and 45 of 1990, reversing the order of the learned Rent Controller, dismissing R.C.O.P. Nos. 62, 66, 64, 67, 63 and 61 of 1987 12 of 1988, 65 of 1987, 13 of 1988 and 57 of 1987 respectively.
2. In the case of C.R.Ps. Nos. 3503, 3505, 3509 of 1992 and 8 of 1993, the respondent-landlord filed the respective R.C.O.Ps. under Sections 10(2)(i), 14(1)(b) and 10(2)(ii)(a) on the ground that
(a) the respective revision petitioner-tenant had committed willful default in paying the rent for the period April to June 1987, May & June, 1987, April to June, 1987 and April to September, 1987 respectively;
(b) the petition premises requires immediate demolition and reconstruction and
(c) the revision petitioner-tenant had sub-let the petition premises.
3. In the case of other revisions namely, C.R.P. Nos. 3500 to 3502, 3501, 3506 to 3508 and 3510 of 1992 the respondent-landlord filed respective R.C.O.P.S. under Section 10(2) (i) and 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act), seeking eviction of the respective revision petitioner-tenant on the ground that
(a) the revision petitioner-tenant had committed wilful default in paying the rent for the period from May to June, 1987, April 1987 to June, 1987, April to June, 1987, January to June, 1987, May & June, 1987, May & June, 1987, April to June, 1987 and September 1986 to June, 1987 and
(b) the respective petition premises requires immediate demolition and reconstruction.
4. The learned Rent Controller, placing reliance on Exhibit P1 -a registered rental agreement duly stamped, evicted the petitioner in the case of C.R.P. No. 3500 of 1992, in R.C.O.P. No. 60 of 1987, which was also confirmed by the learned Appellate Authority in R.C.A. No. 68 of 1989. Similarly, in the case of C.R.P. No. 8 of 1993, the learned Rent Controller, placing reliance on Exhibits P3, P4, P5 and P6, found that the petition premises requires immediate demolition and reconstructions and the petitioner-tenant had committed wilful default in paying the rent for the period from December, 1983 to June, 1987 and also found that the petition premises was sub-let to third parties and therefore, passed an order of eviction in R.C.O.P. No. 58 of 1997, which was also confirmed in R.C.A. No. 5 of 1991.
5. According to the respondent-landlord, even though originally only the land was leased out to the revision petitioners-tenants, who have put up a superstructure namely a wall and thatched shed to carry on the respective business, subsequently, the respective premises were surrendered to the respondent-landlord under Exhibits P5, P7, P9, P11, P13 and P15 and the revision petitioner-tenants were thus continuing to pay the rent for the petition premises as well as for the superstructure. The respondent landlord further contended that in the case of revision in C.R.P. No. 3500 of 1992, there was a registered tenancy agreement which is marked as Exhibit P1, duly stamped, wherein the surrender of the superstructure by the respective tenants to whom the revision petitioner in C.R.P. No. 3500 of 1992 have sub-let the premises to the other revision petitioners in C.R.P. Nos. 3501 to 3510 of 1992 and in C.R.P. No. 8 of 1993, whose tenancy have been directly accepted subsequently between the revision petitioner-tenant and the respondent-landlord.
6. Per contra, revision petitioners-tenants contended that there was no transfer of title of the superstructure from the revision petitioners-tenant the respondent-landlord in the absence of such transfer of title of superstructure, what was leased out to the revision petitioners-tenants were only the land and not the superstructure and therefore, the provisions of the Act itself is not applicable. They further contended that the respondent-landlord is not entitled to rely upon Exhibits P5, P7, P9, P11, P13 and P15 as they were not duly stamped nor registered and therefore, not admissible in law in view of Section 35 of the Indian Stamp Act. It is further contended that even Exhibit P-1 cannot be relied upon by the respondent-landlord inasmuch Exhibit P1 itself is based on Exhibits P5, P7, P9, P11, P13 and P15, which are not admissible in law.
7. The learned Rent Controller, accepting the case of the respondent-landlord in the case of C.R.P. No. 3500 of 1992 that Exhibit P1 is binding on the parties to the said document namely the revision petitioner in C.R.P. No. 3500 of 1992, held that the relationship of the landlord and tenant has been clearly established under Exhibit P1 and further found that the petition premises requires demolition and reconstruction as the same is merely on the walls and thatched sheds and also found that the revision petitioner-tenant had committed wilful default in paying the rent for the month of May and June, 1987 and thus ordered eviction.
8. Similarly, the learned Rent Controller satisfied with the contentions of the respondent-landlord that the revision petitioner in C.R.P. No. 8 of 1993 also bound by the agreement namely Exhibits P3, P4, P5 and P6 and had sub-let the premises to third parties and also committed wilful default for the period December, 1983 to June 1987 and thus ordered eviction.
9. Both the orders of the learned Rent Controller, in the case of C.R.P. No. 3500 of 1992 and 8 of 1993, in R.C.O.P. Nos. 60 and 58 of 1987 are concurrently confirmed by the learned Appellate Authority in R.C.A: NOS. 68 of 1989 and 5 of 1991 respectively.
10. However, the learned Rent Controller, refused to accept the Exhibits P5 P7, P9, P11, P13 and P15 in the case of the revision C.R.P. Nos. 3501 to 3510 of 1992, as these documents are not duly stamped nor registered and therefore, not admissible in law consequently refused to accept the transfer of title of superstructure of the respective petitions in favour of the respondent-landlord and held that the provisions of the Act is not applicable in the case of the above revisions. But, on appeal, the learned Rent Control Appellate Authority, in R.C.A. Nos. 73 of 1989, 23 to 30 of 1990 and 45 of 1990, reversed the order of the learned Rent Controller in dismissing the R.C.O.P. and ordered eviction holding that Exhibits P5, P7, P9, P11, P13 and P15 could be relied upon for the collateral purpose with regard to the admission of the respective revision petitioner tenants that the superstructure in the respective petition premises were duly surrendered by the respective revision petitioner-tenant to the respondent-landlord, in the light of Exhibit P1 which is duly stamped and registered, and governed between the respondent-landlord and the revision petitioner in C.R.P. No. 3500 of 1992, from whom the respective petition premises in C.R.P. Nos. 3501 to 3510 of 1992 were sub-let to the revision petitioners in C.R.P. No. 3501 to 3510 of 1992, who were, thereafter, continued to pay the rent accepting the tenancy of the land and superstructure. Hence, these revisions.
11. The learned Counsel for the revision petitioners contends that
(a) the learned Appellate Authority erred passing the order of eviction merely oh the basis of Exhibit P1 overlooking the fact that Exhibits P5, P7, P9, P11 P13 and P15 are not admissible in law in view of Section 35 of the Indian Stamp Act, as they are not duly stamped nor registered;
(b) the learned Appellate Authority ought not to have relied upon Exhibits P5, P7, P9, P11, P13 and P15 for collateral purpose of placing reliance on the oral evidence with regard to the transfer of title of superstructure by the revision petitioners-tenants to the respondent-landlord, and
(c) the authorities below ought to have taken into account the respective rental dues paid by the revision petitioner-tenant on the very first hearing and therefore, there is no wilful default in paying the rent, on the part of the revision petitioners-tenants, assuming if there is any default as alleged by the respondent-landlord.
12. In support of his contentions, the learned Counsel for the revision petitioners relies upon the decisions in
(a) Ram Rattan v. Parma Nand (1946)1 M.L.J. 295 : L.R.73 I.A. 28 : A.I.R. 1946 P.C. 51; (b) Kuppammal v. Pethctnna Chetty (1956)1 M.L.J. 52; (c) Javer Chand v. Pukhraj Surana ; (d) Ram Rattan v. Bajrang Lal ; (e) Arumughachamy Nadar v. Deivanaiamrrtal .
13. Per contra, learned Counsel for the respondent placing reliance on Section 111 (f) of the Transfer of Property Act, contends that even though originally what was leased out by the respondent-landlord to the revision petitioners-tenants was only the land, by virtue of Exhibit P5, P7, P9, P11, P13 and P15, the subsequent conduct of the revision petitioners-tenants in the light of Exhibit P1 and the payment of rents for the land and superstructure amounts to implied surrender of land and superstructure to the respondent-landlord and consequently, the relationship of the landlord and tenants are satisfactorily established under Exhibits P5, P7, P9, P11, P13, and P15 read with Exhibit P1 and therefore, the orders of eviction by the Appellate Authority is valid and justified. In support of his contention, he relied upon the decision Ramchandra Naidu v. Parameswaran Nair (1970)1 M.L.J. 578.
14.1 have given careful consideration to the submissions of both sides.
15. In this regard, I am obliged to refer Section s 2(6) and 2(8) of the Act, which defines the landlord and the tenant, for the purpose of provisions of the said Act. Section s 2(6) and 2(8) of the Act reads as follows:
Section 2(6): "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 an agent, trustee, executor, administrator, receiver of guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant."
Section 2(8) "tenant means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who-
(i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant, and
(ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continues to carry on such business thereafter, and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or person to whom the collection of rents or fees in a public market, cart-stand or slaughterhouse or of rents for shops has been fanned out or leased by a Municipal Council or a Panchayat Union Council or the Municipal Corporation of Madras or the Municipal Corporation of Madurai.
16. Under the facts and circumstances of the case, it is not in dispute that what was originally leased out was only a land and the revision petitioners tenants had put up the superstructure, It is only under such background, Exhibits P5, P7, P9, p 11, P13 and P15 got to be executed, which ultimately necessitated the execution of Exhibit P1, duly stamped and registered document binding on the respondent-landlord and the revision petitioner in C.R.P. No. 3500 of 1992, namely one Mr. Arumugam, who had subsequently sub-let the petition premises to the other revision petitioners in C.R.P. Nos. 3501 to 3510 of 1992. In view of the admitted facts, I am satisfied that by operation of provision 111 (f) of the Transfer of Property Act, superstructure put up by the revision petitioners-tenants got impliedly surrendered by them to the respondent-landlord irrespective of the fact whether Exhibits P6, P7, P9, P11, P13, and P15 are duly stamped or registered.
17. Of course, in Ram Rattan v. Parma Nand A.I.R. 1946 P.C. 51: (1946)1 M.L.J. 295: L.R. 73 I.A. 28, it is held that in a stamp deed of partition cannot be used for to corroborate oral evidence as to factum of partition.
18. In Kuppammal v. Pethanna Chetty (1956)1 M.L.J. 52, this Court, while interpreting Section 36 of the Stamp Act, has held as follows:
though the language of Section 36 of the Stamp Act is clear and unambiguous the admission contemplated by the Section is the result of judicial determination as its admissibility when an objection is raised; and the mere stamping of the endorsement under Order 13, Rule 4, Civil Procedure Code prior to the determination as to admissibility is only a mechanical act which does not constitute admission under Section 36 of the Stamp Act.
19. In Javer Chand v. Pukhraj Surana the Apex court, again while interpreting Sections 35 and 36 of the Stamp Act has held as follows:
Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly tamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an Exhibit in the case.
20. In Ram Rattan v. bajrang Lal the Apex court has held as follows:
When the document is tendered in evidence by the plaintiff while in witness box and objection is raised by the defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registration, it is obligatory upon the trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence, and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided, it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide the objection.
The endorsement made by the trial Judge that objected, allowed subject to objection, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situtation Section 36 would be attracted.
21. In Arumughachamy Nadar v. Deivanaiammal (1998) 2 M.L.J. 5 : (1998) 1 C.T.C. 286, this Court, while dealing with the collateral purpose of unstamped, unregistered documents, for the purpose of Section 49 of the Indian Registration Act has held that to be collateral the fact must be independent of, or divisible from the purpose to the effect which the law requires registration.
22. In my considered opinion, there is no disputed about the proposition laid down in the above decisions, but in so far as the instant case is concerned, it is sufficient to test whether the relationship between the tenant and the landlord exists under the facts and circumstances of the instant case, as required under Sections 2(6) and 2(8) of the Act, referred to above.
23. Under the admitted facts and circumstances of the case, there is no dispute that even through what was leased out was originally a land, by the respondent landlord to the revision petitioner-tenants, and the revision petitioner-tenants has put up superstructure, the superstructure were impliedly surrendered by the revision petitioner-tenants who were paying the rent for both the land and superstructure, which is proved by the evidence of Exhibits P5, P7, P9, P11, P13 and P15, in the light of Exhibit P1, as rightly appreciated by the Appellate Authority.
24. In this context, it is relevant to refer the decision in Ramachandra Naidu v. Prameswaran Nair (1970) 1 M.L.J. 578, relied upon by the learned Counsel for the respondent-landlord requires to be referred to, wherein this Court has held as follows:
The rights of the landlord and the tenant will have to be determined with reference to the provisions of the Transfer of Property Act and the City Tenants Protection Act, the provisions of the latter Act, prevailing wherever there is specific provision therein. Under the Transfer of Property Act, when land alone is leased, the lessee has no other right over the land except as a lessee and on the determination of the lease the lesser becomes entitled to possession of the land, Under Section 108 (h) of the Transfer of Property Act, on the determination of the lease, the lessee whilst in possession of the property least can at any time remove the superstructure which the lessee has put on the land and leave the property in the State in which the lessee received it. The lessee the owner of the building put up by him on the land, and even so, his only right is to remove the superstructure. He has no right to compel the landlord to take the superstructure and pay the value thereof. (vide: Sundareswarar Devasthanam v. Marimnthu ). Even with regard to this limited right of the lessee to remove the superstructure, there can be a contract to the contrary by which the lessee may agree not to exercise his right to remove the superstructure with or without any claim for compensation therefore. Vide Dr. K.A. Dhairayawan v. J.R. Thakur . What is important to notice is that if the lessee does not exercise his right to remove the superstructure on the determination of the lease, the superstructure becomes part of the lessee continues in possession as a tenant, he will be a tenant of the land as Well as of the building, In other words, if on the determination of the lease, the lessee does not remove the superstructure it becomes part of the land and the property of the land-lord, without any further conveyance or formal transfer of the superstructure from the lessee to the lesser.
25. Once the conduct of the revision petitioners tenants would show that the revision petitioners tenants were paying the rent and the respondent landlord was receiving the rent for both the land and superstructure, as contemplated under Sections 2(6) and 2(8) of the Act, I am satisfied that the provisions of the Act squarely applies to the facts and circumstances of the case. Therefore, the eviction petitions preferred by the respondent-landlord are maintainable in law. That apart, as it is not in dispute that the building in question are only of walls and thatched shed as found by the Appellate Authority, it requires immediate demolition and reconstruction of the petitioner premises by the respondent-landlord for the construction of a Kalyana Mandapam for which they have already obtained an approved plan and have got sufficient funds to raise, cannot be rejected, Once it is thus held that the relationship between the respondent-landlord and the revision petitioners tenants satisfy the provisions of the Act, there is no justification to interfere with the findings of the learned Appellate Authority that the revision petitioners-tenants had committed willful default in paying the rent for the respective months, for the land and superstructure,
26. For all the reasons stated above, the orders of eviction are confirmed. The revisions fails and are dismissed. However, the revision petitioners-tenants are given three months time to vacate and handover the vacant possession of the petition premises to the respondent landlord.
27. In the result, revisions are dismissed. No costs.