Madras High Court
P. Rukmani vs R. Narayani And 6 Ors. on 29 March, 1996
Equivalent citations: (1996)2MLJ477
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. Plaintiff in O.S.No. 1689 of 1979 on the file of the District Munsif, Coimbatore, is the appellant in the above second appeal. He filed the suit for delivery of possession of the suit properties, arrears of rent and for future damages.
2. The averments in the plaint are as follows: The suit properties originally belonged to one R. Janardhanan as per the registered partition deed dated 31.12.1951. The said Janardhanan sold the suit property to the plaintiff under the sale deed dated 2.11.1978 for valuable consideration. The plaintiff thus became the owner of the suit property and she is paying house tax therefor. The previous owner Janardhanan allowed the Uppilipalayam Panchayat to run a school in the suit properties and the panchayat was running a school for some time. After 10 years, the panchayat vacated the school. One Raghava Mannadiar was employed as a watchman-cum-peon in the school run by the panchayat. The said Raghava Mannadiar died about 7 or 8 years ago. When the school vacated the premises, the said Raghava Mannadiar was permitted by Janardhanan to occupy the eastern room of the school premises on a nominal rent. After the death of the said Raghava Mannadiar, defendants 2 to 7 who are his legal heirs are continuing the occupation of the suit premises as tenants. After the purchase, the plaintiff was put in actual possession of the entire premises bearing door No. 127 except the portion in the occupation of the defendants. The defendants agreed to vacate the suit premises after finding a suitable occupation and in the meantime, they agreed to pay a monthly rent of Rs. 15 to the plaintiff. Contrary to the said agreement, the defendants have neither vacated nor paid the rent to the plaintiff in spite of repeated demands. The defendants committed wilful default in payment of rent from November, 1978 onwards. The plaintiff intends to demolish a portion of the premises for constructing the same according to her needs. The plaintiff applied to the Singanallur Municipality for licence for this purpose. She informed the defendants to vacate the suit premises. As the defendants evaded the request of the plaintiff, the plaintiff was constrained to issue a notice dated 25.7.1979 terminating the tenancy of the defendants with effect from 31.8.79 and calling upon them to pay the arrears of rent. The defendants sent a reply dated 8.8.79 containing false and untenable grounds. In the reply notice, the defendants denied the title of the plaintiff and also his predecessor. It has, therefore, become necessary for the plaintiff to file the suit.
3. The first defendant filed a written statement which was adopted by defendants 2 to 7 with the following averments: It is not correct to state that the suit property belonged to one Janardhanan. Janardhanan did not permit anybody to run a school in the suit premises. The Uppilipalayam Panchayat did not run any school and has not vacated the school 10 years ago as alleged. It is equally false to state that one Raghava Mannadiar was employed as a watchman-cum-peon in the said school. He was not in permissive occupation but was in possession of the suit premises in his own right, openly, continuously and to the knowledge of one and all. He had perfected his title by adverse possession. In fact, the said Raghava Mannadiar denied the title of the said Janardhanan. These defendants never promised to vacate the premises at any time. There is no agreement to pay any rent to the plaintiff. The question of committing wilful default in payment of rent does not arise. The notice to quit is invalid and improper. The plaintiff is not entitled to delivery of possession of the suit premises from the defendants. The court has no jurisdiction to try the present suit. With these averments, he prayed for dismissal of the suit.
4. In support of the plaintiff's case, she has examined one Palanisamy as P.W.1 and Jagannathan as P.W.2. She produced and marked Exs.A-1 to A-17 in support of her case. On the other hand, the first defendant was examined as D.W.1 and Exs.B-1 to B-6 were marked in support of their case. On the basis of evidence let in, the learned District Munsif, Coimbatore, came to the conclusion that the defendants have not proved that they are in possession of the suit property in their own right and have perfected their title to the suit property by adverse possession. Regarding maintainability, the trial court accepted the case of the plaintiff and held that Civil Court has jurisdiction to entertain the present suit. Accordingly, by judgment and decree dated 6.7.81, decreed the suit with costs.
5. Aggrieved by the judgment and decree of the trial court, the unsuccessful defendants filed A.S.No. 234 of 1981 on the file of District Court, Coimbatore. The lower appellate court on the factual position, came to the conclusion that the defendants and Raghava Mannadiar are in possession of the suit properties since 1966 and they have perfected title by adverse possession. On the other issue, namely, the maintainability of the suit in respect of recovery of possession, following the decision of this Court reported in Abdul Khader v. Rajammal (1990) 1 M.L.J. 331, the lower appellate court came to the conclusion that the suit is not maintainable. Ultimately, the lower appellate court allowed the appeal and dismissed the suit.
6. Consequent to the dismissal of the suit by the lower -appellate court, the plaintiff filed the present second appeal before this Court. While entertaining the second appeal, this Court, has framed the following substantial question of law for determination:
Whether on the facts and in the circumstances of this case especially in view of the plea of jus tertii, the finding of the court below on the question of title is sustainable?
7. Learned Counsel appearing for the appellant raised the following contentions:
(i) The reliance on Ex.B-1 voters' list which is not a public document by the appellate court is contrary to Section 77 of the Evidence Act;
(ii) The finding of the lower appellate court with respect to the defendants' title by adverse possession is erroneous in the light of the evidence available.
8. On the other hand, Mr. K. Srinivasan, learned Counsel for the respondents, after taking me through Exs.B-2 to B-4, contended that the defendants have perfected title by adverse possession. He also pleaded that inasmuch as the voters, list is a public document, it is admissible in evidence as per Section 77 of the Evidence Act. With regard to maintainability, relying upon the decision of the Supreme Court in East India Corporation Ltd., v. Shree Meenakshi Mills Ltd. and subsequent judgment of this Court reported in Natesn Pillai v. Sethumani Ammal (1992) 1 M.L.J. 9 : (1992) 2 L.W. 564, he contended that the suit as framed for recovery of possession is not maintainable and he prayed for confirmation of the judgment of the appellate court.
9. In the light of the rival submissions of both the counsel, I have carefully considered in detail.-- It is the case of the plaintiff that originally the suit property belonged to one Janardhanan the said Janardhanan sold the suit property to the plaintiff under the sale deed dated 2.11.78 (Ex.A-1) for consideration. It is the further case of the plaintiff that the previous owner, namely, Janardhanan allowed Uppilipalayam Panchayat to run a school in the suit property and after 10 years, the panchayat vacated the school. Thereafter, one Raghava Mannadiar was employed as watchman-cum-peon in the school run by the panchayat. The said Raghava Mannadiar died 7 or 8 years ago. When the school vacated the premises, the said Raghava Mannadiar was permitted by Janardhanan to occupy the eastern room of the school premises on a nominal rent. It is the further case of the plaintiff that after the death of Raghava Mannadiar, defendants 2 to 7 who are his legal heirs, are continuing the occupation of the suit premises as tenants. After the purchase, the plaintiff was put in actual possession of the entire premises bearing door No. 127 except the portion in the occupation of the defendants Since the defendants refused to vacate, she terminated the tenancy with effect from 31.8.1979 and filed the present suit. On the other hand, it is the definite case of the defendants that Raghava Mannadiar was not in permissive occupation, but was in possession of the suit premises in his own right, openly, continuously and to the knowledge of one and all. The said Raghava Mannadiar denied the title of the said Janardhanan. The defendants further alleged that they never promised to vacate the premises at any time. They also contended that Civil Court has no jurisdiction to try the said suit. On the question of title, the trial court disagreed with the case of the defendants. Even though before the trial court an objection was raised with regard to jurisdiction relying on earlier decision on this Court reported in Rajammal v. Athamarammalu, 1978 T.L.N.J. 272 it held that the Civil Court has jurisdiction to entertain the suit. On the basis of the said finding, the trial court decreed the suit with costs.
10. The lower appellate court with regard to adverse possession, on the basis of the oral and documentary evidence, came to the conclusion that the defendants and Raghava Mannadiar are in possession of the suit property since 1966 and held that they have perfected title by adverse possession. It is seen from the evidence that Raghava Mannadiar was in the suit property for more than 15 years for which reliance was placed on Ex.B-1 voters list for the year 1966 wherein at page 14, serial No. 778 stands in the name of Raghava Mannadiar and his wife Narayani Ammal, who is none else than the first defendant. The trial court, since Ex.B-1 voters list does not contain any official seal or signature of the competent authority, refused to rely upon the said evidence. The conclusion of the trial court that voters list Ex.B-1 is not a public document cannot be accepted. There is a direct authority on this point in the decision reported in Linga v. Ajodhya Mallikan . The Orissa High Court with regard to electoral roll has held that it is a public document. The observation of the Orissa High Court in the said judgment is as follows:
In a suit by the plaintiff for partition and for allotment to her of the share of her deceased husband "S" in the joint family property, an entry in the electoral roll showing the plaintiff to be the wife of "S" is a relevant fact admissible in evidence. The electoral roll is a public document. It is prepared by a public servant in discharge of his official duties and hence admissible under Section 35 of the Evidence Act.
The very same view has been reiterated in another judgment of the Orissa High Court reported in Naladhar Mahapatra v. Seva Dibya . The relevant conclusion with regard to electoral roll/voters list is as follows:
This electoral roll is challenged by the advocate for the respondent on the ground that the certified copy has been proved and his certified copy does not indicate that it was prepared under the Representation of the People Act, 1951. This document has been admitted without objection. It has been held in Kirtan Sahu, after him Uma Sahusani v. Thakur Sahu that Electoral roll is a public document and does not require any formal proof. The certified copy of a public document is admissible in evidence under Section 77 of the Evidence Act.
11. Hence, in view of the above legal position, Ex.B-1 amply proves that Raghava Mannadiar and the first defendant were enjoying the suit property from 1966 onwards. The conclusion of the appellate court in this regard is in accordance with law as laid down in the abovesaid decision. The evidence adduced clearly shows that since 1966 the defendants and Raghava Mannadiar have been in possession of the disputed house openly, continuously, without interruption and in their own right to the knowledge of all. In view of the above factual position, I am in entire agreement with the conclusion of the lower appellate court on point No. 1.
12. The second point, namely, jurisdiction of Civil Court entertaining the suit for recovery of possession, admittedly, the suit property is within the Coimbatore Municipal limits. In this respect, the trial court relying on the decision of this Court reported in Rajammal v. Athamarammalu, 1978 T.L.N.J. 272 came to the conclusion that in spite of provisions of the Rent Control Act, the Civil Court has jurisdiction and held that the suit filed by the plaintiff is maintainable. The lower appellate court, on the basis of the subsequent judgment reported in Abdul Khader v. Rajammal (1990) 1 M.L.J. 331 came to the conclusion that the suit is not maintainable. The Civil Court cannot by-pass the procedure contemplated under the Second Proviso to Section 10(2) and straight-way grant a decree for possession without reference to the provisions of the Rent Control Act and obtaining orders thereunder. In this respect, Mr. K. Srinivasan, learned Counsel for the respondent brought to my notice the recent decision of the Supreme Court reported in East India Corporation Ltd., v. Shree Meenakshi Mills Ltd. is directly on this point. In the said judgment, the Apex Court, after referring the relevant provisions under the Tamil Nadu Buildings (Lease and Rent Control) Act and also referring various earlier decisions, has held that, Section 10 of the Act, as seen above, prohibits eviction of a tenant whether in execution of a decree or otherwise, except in accordance with the provisions of that Section or Sections 14 to 16. These provisions as well as the other provisions of the Act are a self-contained Code, regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by tribunals constituted under the statute and whose orders are endowed with finality. The remedies provided by the statute in such matters are adequate and complete. Although the statute contains no express bar of jurisdiction of the Civil Court, except for eviction of tenants "in execution or otherwise", the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals setup under it, and their competence to administer the same remedy as the Civil Courts render in civil suits. Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the Legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it. Although the jurisdiction of the Civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and this Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute....
Judged by this test, the jurisdiction of the Civil Court in respect of eviction of tenants is barred except to the extent and subject to the conditions prescribed under Section 10, the Second Proviso to Section 10 (1) reads:
Provided further that whether the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the court finds that such denial does not involve for forfeiture of the lease or that the claim is unfounded.
What is stated in the second Proviso to Section 10 (1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of eviction. But the jurisdiction cannot be invoked otherwise than as stipulated to the Second Proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil Court is that the tenant should have denied the title of the landlord or claimed right or permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16, notwithstanding that the court has found that the tenant's denial of the landlord's title does not involve forfeiture of the lease, or his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.
Significantly, the jurisdiction of the Civil Court can be invoked only where the Controller comes to a decision, and record a finding, that the denial or claim by the tenant, as aforesaid, is bona fide If the controller were to come to the opposite conclusion, no question of invoking the jurisdiction of the Civil Court would arise. But the decision of the Controller is concerned solely with the bona fides and not the correctness or validity of the denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate Civil Court which is the more competent forum in such matters (See the principle discussed in Magiti Sasamal v. Pandab Bissoi . In such an event, the Civil Court will become competent to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16. On the other hand, if the decision of the Controller is that the tenant's denial or claim is not bona fide the jurisdiction of the Civil Court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction, after affording the parties a reasonable opportunity of being heard, on any one of the grounds specified under the statute, including the ground that the tenant has, without bona fide denied the landlord's title or claimed right of permanent tenancy. What is significant is that the decision of the Controller, duly recorded by him, as regards the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the Civil Court. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the section is, therefore, incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect.
The other judgment relied on by Mr. K. Srinivasan is in the case of Natesan Pillai v. Sethumani Ammal (1992) 1 M.L.J. 9 : (1992) 2 L.W. 564. In the said judgment Bellie, J., alter referring East India Corporation Ltd., v. Shree Meenakshi Mills Ltd. has held that, It is the definite case of the plaintiff that the defendant is a tenant. Now, as per Section 10 (1) of the Act a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 14 to 16. Therefore it is imperative that the plaintiff has to initiate proceedings for eviction against the defendant in a Rent Control proceedings. To this Section 10(1) an exception is provided under the Second Proviso according to which where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial of title is bona fide and if he records a finding to that effect the landlord shall be entitled to sue for eviction in Civil Court and the court may pass a decree for eviction on any of the grounds mentioned in the said Section notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
In this case, in fact, the plaintiff has filed R.C.O.P.No. 17 of 1981, but however, stating that the defendant has denied the tenancy and claimed right to the property by virtue of an alleged agreement of sale, sought to withdraw the petition and the petition was accordingly dismissed as withdrawn. There was no finding of the Rent Controller as to whether there was denial of title by the defendant and that denial is bona fide. Therefore at that stage the landlord need not have withdrawn the petition and ought to have pursued it. This being the case, the present suit is not competent.
Mr. Parthasarathy, in support of his contention has relied on a judgment of the Supreme Court East India Corporation Ltd., v. Shree Meenakshi Mills Ltd. wherein at paragraph 8 it is laid down as follows:
What is stated in the Second Proviso to Section 10 (1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of eviction. But this jurisdiction cannot be invoked otherwise than as stipulated in the Second Proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil Court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16 notwithstanding that the court has found that the tenant's denial of the landlord's title does not involve for future of the lease, or his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.
In paragraph 9, towards the end, it is again stated:
What is significant is that the decision of the Controller, duly recorded by him as regard the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the Civil Court. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit Of the Act, otherwise than as stipulated by Section is, therefore, incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect.
13. The abovesaid decision clearly show that although the jurisdiction of the Civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and the Supreme Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the Section is, therefore incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect. In view of the law laid down by the Apex Court and the subsequent decision of this Court, I am in entire agreement with the arguments of the learned Counsel for the respondents and, consequently, confirm the judgment and decree of the lower appellate court, holding that the suit filed by the plaintiff is not maintainable.
14. For all the reasons mentioned above, I am unable to agree with any of the contentions of the learned Counsel for the appellant, consequently, the second appeal fails and is accordingly dismissed with costs.