Madras High Court
K.Shyamala vs Khaleel Basha on 22 March, 2018
Author: M.Govindaraj
Bench: M. Govindaraj
In the High Court of Judicature at Madras DATED : 22.03.2018 C O R A M THE HONOURABLE MR.JUSTICE M. GOVINDARAJ C.R.P.(NPD) NOS.2231 AND 2232 OF 2016 K.Shyamala ... Petitioner in both CRPs' Vs. Khaleel Basha ... Respondent in both CRPs' PRAYER IN CRP (NPD) NO.2231 OF 2016: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the fair and decreetal order dated 14.11.2014 made in R.C.A.No.725 of 2011 on the file of the Rent Control Appellate Authority / VII Judge, Small Causes Court, Chennai, confirming the fair and decreetal order dated 15.06.2011 made in RCOP No.1901 of 2009 on the file of the Rent Controller, XV Judge, Small Causes Court, Chennai. PRAYER IN CRP (NPD) NO.2232 OF 2016: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the fair and decreetal order dated 14.11.2014 made in M.P.No.216 of 2013 in R.C.A.No.725 of 2011 on the file of the Rent Control Appellate Authority / VII Judge, Small Causes Court, Chennai. For Petitioner : Mr.S.Bhargavan For Respondent : Mr.G.Ramachandran COMMON ORDER
These Civil Revision Petitions are directed against the concurrent findings of the Rent Control Courts below.
2. The landlady is the revision petitioner. The petitioner filed a petition for eviction for the wilful default committed by the respondent/ tenant. The respondent denied that the landlord - tenant relationship and the tenancy is in respect of the land only and not for the superstructure and therefore, the petition under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is not maintainable. The Rent Controller has found that the tenant has incurred Rs.4,00,000/- for putting up the asbestos sheet superstructure. The Rent Controller, having found that the landlady has not proved that she leased out a building and failed to discharge her burden of proving the fact that the respondent is a tenant for the land and building, dismissed the eviction petition.
3. Against the order of the Rent Controller, the petitioner preferred an appeal in RCA No.725 of 2011 and also filed a miscellaneous petition in M.P.No.885 of 2013 for marking three documents, viz., common order copy in RCOP Nos.1186 of 1985, 1188 of 1985 to 1190 of 1985. The respondent / tenant did not file any counter and the miscellaneous petition was allowed.
4. To prove that the superstructure was built by the petitioner/ landlady, she filed certain documents in M.P.No.216 of 2013. Since the documents were upto the year 2006 and does not pertain to the period of lease, the miscellaneous petition was dismissed. Against which, Civil Revision Petition in CRP (NPD) No.2232 of 2016 has been filed.
5. Since the documents which were sought to be filed in the appeal was dismissed, the findings of the Rent Controller were confirmed on the ground that the petitioner / landlady has failed to prove that the building was leased out to the tenant and that there existed landlord - tenant relationship. Against which, CRP (NPD) No.2231 of 2016 has been filed.
6. From the perusal of the materials available before this Court, it could be seen that the entire issue revolves around as to whether the petition premises leased out is a vacant land or building with vacant land. From Ex.P4 marked before the Rent Control Appellate Authority, it is seen that four eviction petitions were filed against the previous tenants in the year 1985 for 4 shop portions in the petition premises. Eviction was ordered on 25.09.1987. Therefore, the initial presumption is that there were buildings at Old No.28, New No.72, Parthasarathipet Street, Vellala Teynampet, Chennai - 600 086, as has been said by the landlady. Since the other documents pertaining to the proof of superstructure built by the landlady is concerned, they are of the year 2005 and 2006. Since the Rent Control Appellate Authority has rejected the same for the present, they are not referred to deciding this appeal. While deciding the revision petition, it has to be seen whether the denial by the tenant that there is no landlord / tenant relationship is bonafide or not.
7. The title of the petitioner / landlady to the petition premises is clearly admitted by the respondent / tenant. He has also filed a suit in O.S.No.5218 of 2007 for permanent injunction not to evict him by undue process of law from the vacant land. The suit was also decreed on 11.01.2008. Therefore, it is crystal clear that the revision petitioner is the owner of the petition premises.
8. The secondly issue is to note whether the denial of landlord and tenant relationahip is bonafide and sustainable. In order to prove that the landlady is not the owner of the superstructure, the tenant has let in evidence and marked Exs.R1 to R8. Ex.R1 is a letter dated 13.02.2007 written by R.S.Events and Expositions demanding payment for labour charges for the erection of superstructure at the petition premises, which shows that the labour charges for the said construction was demanded to the tune of Rs.40,845/-. However, the author of the said document was not examined before the Court. Ex.R2 is a cash bill dated 15.02.2007 for fixing of rolling shutter at the cost of Rs.9,000/- and nobody was examined to prove the said document also. The crucial document is the letter addressed to the landlady by the tenant dated 17.08.2007 vide Ex.R4. On a perusal of this letter, it is seen that originally it is typed as Rs.1,00,000/- for putting up the superstructure. A careful consideration goes to show that Rs.1,00,000/- was altered as Rs.4,00,000/- and no acknowledgement from the landlady was produced as proof of delivery.
9. The next document marked by the respondent / tenant as Ex.R6 is the plaint filed before the City Civil Court, Court, in O.S.No.5218 of 2007. At para 4 of the plaint, the expenditure for putting up the superstructure was again typed as Rs.1,00,000/- and thereafter, altered as Rs.4,00,000/-, which is visible from handwriting over the typed script. Other than these documents, there is no proof on the side of the respondent / tenant for having put up the superstructure by spending Rs.4,00,000/- as alleged by him. These material alterations made in Exs.R4 and R6 would clearly show that the respondent / tenant has not acted with bonafides but manipulated the documents to suit his convenience. During the cross examination, he would depose that he has not obtained any permission from the landlady for putting up construction nor got approval from the local authorities for the same. In the absence of any evidence, that the tenant has put up superstructure, it shall be construed that the construction was put up only by the landlady and tenant was inducted into the superstructure owned by the landlady.
10. As mentioned above, Ex.P4, the common order passed in RCOP Nos.1186 of 1985, 1188 of 1985 to 1190 of 1985 goes to show that the petition premises was having four shops in it. The Rent Control Original Petition was contested by the other tenants and eviction was ordered in respect of two shops and dismissed in respect of two other shops. From the order copy, it could be seen that there existed a building. In that event, the burden is on the respondent / tenant to prove that he only put up the superstructure by taking lease of the vacant land from the landlady. Since no evidence has been produced by the respondent / tenant to discharge the burden that he put up the superstructure through suitable witnesses and documentary proof, as observed above, it has to be construed that the petition premises was leased out with building. Once a tenancy is admitted by the respondent, he cannot turn back and state it was only for the land. Therefore, it can be inferred that the landlady has leased out the petition premises with superstructure and there existed a landlord / tenant relationship and that the denial of the title of the superstructure, by the tenant is not proved, much less it is bonafide.
11. Further, it is admitted by the respondent / tenant that he tendered rentals, but it was not accepted by the petitioner / landlady. In the evidence, the respondent / tenant would also admit that he had not paid any rentals after the refusal by the landlady after the tender made vide Ex.R4, demand draft dated dated 17.08.2007. He would admit that after 17.08.2007, he has not taken any steps to deposit the rentals in Court. The evidence of R.W.1 on this aspect reads as follows:
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Further, it is admitted by the respondent / tenant that he was inducted only in February 2007. By his own admission, the wilful default is admitted and therefore, it is clear that the Courts below have failed to consider the petition in proper perspective.
12. The Hon'ble Supreme Court in its judgment in VITHAL N.SHETTI AND ANOTHER VS. PRAKASH N. RUDRAKAR AND OTHERS [2003 (1) SCC 18] has held that to show the bonafides of the tenant, he should have pleaded and proved that he had obtained a written permission for raising superstructure and obtained approval from the Municipal Corporation and prove it by calling the original record from the custody of the Municipal Authorities. If the tenant fails to prove the same by raising specific pleadings, eviction ordered was upheld.
13. This Court in DIWANGANI @ M.S.GANI VS. SAHARVAN BEEVI AND OTHERS [CRP (NPD) (MD) NO.91 OF 2004 DATED 16.03.2015] has held that in the absence of any proof to show that the tenant is the owner of the superstructure, the denial of title of the landlord by the tenant is not bonafide. Eviction can be ordered for the wilful default committed by the tenant.
14. In the present case, the respondent has categorically admitted the title of the landlady, but only deny the existence of superstructure. Mere pleading that he had put up the superstructure does not suffice, but it shall be proved by suitable evidence. As held by the Hon'ble Supreme Court, the respondent has not obtained any written permission from the landlady. In such an event, the superstructure belongs to the landlady and the respondent will fall under the definition "tenant".
15. In the considered opinion of this Court, the denial raised by the respondent / tenant is not bonafide and it is a clear case of admission of wilful default that entitles the petitioner / landlady to get eviction of the respondent / tenant.
16. Therefore, the fair and decreetal order dated 14.11.2014 passed in R.C.A.No.725 of 2011 by the Rent Control Appellate Authority / VII Judge, Small Causes Court, Chennai, confirming the fair and decreetal order dated 15.06.2011 passed in RCOP No.1901 of 2009 by the Rent Controller, XV Judge, Small Causes Court, Chennai is set aside.
17. The documents which were sought to be marked in M.P.No.216 of 2013 are the telephone bills, electricity consumption charges, water tax and property tax paid by the petitioner / landlady. All these documents are pertaining to the year 2006 to 2011. In fact, the property tax payment details was produced up to the year 2010-2011 and the water tax details upto the year 2011. These documents would go to show that during the relevant period of tenancy also, payments were made by the petitioner / landlady for the existing superstructure. In that event, these documents are relevant documents for deciding the issue of the bonafide of the respondent / tenant and the proof of existence of superstructure in the petition premises. However, the Rent Control Appellate Authority without appreciating the documents in proper perspective, dismissed the same. In view of the finding given against the findings in the main appeal itself, these documents are no longer necessary and need not be relied on. Accordingly, CRP (NPD) No.2232 of 2016 is closed.
18. In fine, CRP (NPD) No.2231 of 2016 is allowed and eviction is ordered. Two months time is granted for vacating and handing over vacant possession of the petition premises. CRP (NPD) No.2232 of 2016 is closed. No costs.
22.03.2018 Index : Yes/No Internet : Yes/No TK M.GOVINDARAJ, J.
TK To
1.The Rent Control Appellate Authority / VII Judge Small Causes Court Chennai.
2.The Rent Controller XV Judge Small Causes Court Chennai.
C.R.P.(NPD) NOS.2231 AND 2232 OF 2016 22.03.2018