Madras High Court
K.M. Ranganathan vs S. Sankaralingam on 3 April, 2002
ORDER V. Bakthavatsalu, J.
1. The landlord is the revision petitioner. The landlord filed R.C.O.P under Section 10(3)(c) of Tamil Nadu Buildings (Lease and Rent Control Act) 18/60 (in short 'the Act').
2. The case of the landlord/petitioner is as follows:- The petitioner is the owner of the property described in the petition schedule. The respondent has been inducted as the tenant for the period of three years from 15.1.1982 to 15.1.1985 on a monthly rent of Rs.1000/-. There is an advance payment of Rs.15,000/- paid by the respondent to the petitioner. As per clause-6 of the agreement, it has been agreed that after the expiry of the lease period of three years, if the tenant continues in the petition mentioned property with the consent of the petitioner, he is liable to pay enhanced rent of Rs.1200/- per month. Under this condition, the respondent is continuing in the occupation of the petition mentioned property, but the respondent has been paying Rs.1000/- only. Atlast, the respondent agreed to pay rent at the rate of Rs.1,250/- from 16.5.90 onwards. The tenanted premises under the occupation of the respondent is in Door No.392 and in respect of the adjacent portion of tenanted premises, which is under the occupation of the petitioner is in Door No.391, wherein the petitioner is running a flour mill in the rear side of his premises in Door No.391 under the name and style "Manickam Flour Mill". In the front side of the petitioner's premises in Door No.391, the petitioner's son by name K.R.Parthasarathy is doing business in General Merchants and maligai goods especially wheat and wheat products under the name and style "Cow and Calf" brand products. The petitioner's son product achieved a unique name and reputation among the wholesale dealers and it has attained popularity and therefore, for expanding its show-room facilities and for its wide publicity, the petitioner was insisting the respondent for vacating the petition mentioned property on the ground of additional accommodation. Further, the petitioner's another son by name Venkatesan is also a dealer in the similar line of business at Door No.391 and hence for his expansion of the business also, the petitioner requires additional accommodation. The petitioner's flour mill and his two sons business are under the same roof in Door No.391, which is very unaccommodative and the petitioner's sons are put to very much hardship in carrying on their trade. Though the petitioner was all along demanding the premises for additional accommodation, the petitioner lost hope in settling the issue with the respondent. The respondent began to infringe the petitioner's son trade mark and brand name "Cow and Calf Products", which resulted in the trade mark suit filed in O.S.No.18 of 90 on the file of District Judge, Coimbatore. Hence, the petitioner has issued legal notice to the respondent on 24.7.90 calling upon the respondent to vacate and handover the petition mentioned premises on or before 15.8.90. The petitioner also sought eviction of the respondent on the ground of wilful default in the payment of rent from 16.5.90 onwards at Rs.1250/- per month. The respondent denied that he is liable to pay monthly rent of Rs.1250/-. The respondent has sent two cheques for Rs.2000/- and Rs.1000/- representing three months arrears of rent. The petitioner reserves the right to seek eviction on the ground of respondent's wilful default in the payment of rent, if the cheques sent by the respondent are bounced or dishonoured. The claim of the petitioner is bonafide. Therefore, the respondent is liable to be evicted and handover possession to the petitioner.
3. The case of the respondent/tenant is as follows:- The respondent admits the rental agreement dated 15.1.1982. The acceptance of rent of Rs.1000/- per month for all these years after the expiry of the rental agreement amounts to acquiescence and therefore, the petitioner is not entitled to claim enhanced rent. There is no agreement to pay rent of Rs.1250/- per mensem from 16.5.90 onwards. It is not know how the petitioner is entitled to ventilate the grievance of his two sons when they are not parties to the present application. The elaborate description of the business of his son K.R.Parthasarthy is self serving. The nature of the business carried on by the said K.R.Parthasarthy does not require any show-room facility. The petitioner's anxiety to provide additional space for the alleged business of his second son Venkatesan is unsustainable in law. The petitioner cannot plead cause of his two sons whey they are not the parties in the R.C.O.P. There was not even a whisper from the petitioner demanding additional accommodation till he issued notice on 24.7.90. There was no question of any wilful default as alleged by the petitioner. On his own showing, the petitioner has no necessity for any additional accommodation for his flour mill business. The respondent is in occupation of the premises Door No.392 for the last 11 years in a separate building and it is exclusively built for the purpose of running an established business. It has no connection with the premises occupied by the petitioner. Ever since, the construction, the premises bearing Door No.392 has been under the occupation of the tenant or other. The respondent is doing business in wholesale and retail in provisions and other accessories and has established his name and fame in the present locality. If the respondent is to be vacated on the flimsy ground, the hardship that would be caused to the respondent would outweigh the advantage to the petitioner.
4. Before the Rent Controller, the petitioner and his two sons were examined as P.Ws 1 to 3 and the tenant has been examined as R.W.1. On the side of the petitioner, Exs.P-1 to P-50 are marked and on the side of the respondent Exs.R-1 and R-2 are marked. The Commissioner's report and plan are marked as Exs.C-1 to C-4. On a consideration of oral and documentary evidence, the Rent Controller allowed the petition granting two months time to the tenant to vacate the premises. Aggrieved by the said order, the tenant preferred an appeal in R.C.A.No.39 of 95. The Appellate Authority on a consideration of the materials on record has come to the conclusion that the buildings in possession of the respondent/tenant and petitioner/landlord are separate and distinct and as such, the landlord cannot ask for additional accommodation and consequently, the appeal was allowed and the R.C.O.P filed by the landlord was dismissed. Aggrieved by the said finding of the Appellate Authority, this revision is filed.
5. The landlord/revision petitioner has raised the following contentions in this revision:- The Appellate Authority has committed error in holding that the petition mentioned premises is a separate one. The Appellate Authority failed to note that mere existence of a wall dividing the two houses cannot be a valid ground for holding that the buildings are separate and distinct. The reasons given by the Appellate Authority are not sustainable in law. On the other hand, the Rent Controller has analysed the entire evidence and has come to the correct conclusion in allowing the petition.
6. On the other hand, learned counsel for the respondent/tenant contended that the admitted materials will clearly show that the premises in possession of the petitioner and tenant are separate and that the above buildings are divided by a wall, which is evident from the Commissioner's report and plan and that therefore, the findings of the Appellate Authority cannot be interfered with in this revision.
7. There is no dispute that the respondent is the tenant of the premises bearing Door No.392 and the petitioner is the landlord. The petitioner has filed this petition under Section 10(3)(c) of the Act contending that he and his two sons are carrying on business in D.No.391 and that they require the premises i.e., Door No.392 in possession of the tenant for additional accommodation. The landlord has adduced overwhelming documentary evidence to show that he and his two sons are carrying on business.
8. The Rent Controller has held that though there is a dividing wall measuring 6" , the above wall can be easily removed and that both eastern and western portion can be annexed together. The Rent Controller has further held that the petitioner and his two sons are carrying on business in Door No.391. For the above two main reasons, the Rent Controller has allowed the petition. But the said findings are not accepted by the Appellate Authority to be correct. The Appellate Authority has given its own reasons for reversing the order of the Rent Controller. The Appellate Authority has observed that the Rent Controller failed to consider the crucial question as to whether the premises in occupation of the petitioner is part and parcel of the premises in occupation of the tenant. To appreciate the rival contentions of both parties, it would be useful to refer to the Commissioner's report and plan. Ex.C-1 is the report of the Commissioner. Ex.C-2 is the plan. It is seen from Ex.C-1 that the Commissioner inspected the property on 19.8.90, but the tenant was not present at that time. The Commissioner has noted that salesmen and workers were present. It is seen from the Commissioner's plan that Door No.392 faces Rangai Gowder Street on the west. The above property is shown in red colour. The premises in possession of the petitioner is situate to the east of Door No.392. It is stated that the petitioner is carrying on business at the rear end of premises No.391. The Commissioner has noted the portion in which the petitioner's son is carrying on business under the name and style "Cow and Calf products". The Commissioner has stated that the petition mentioned property is a terraced one and the premises under the occupation of the petitioner are partly tiled and partly R.C.Roofed and that the premises under the occupation of the tenant is in a pucca R.C.building and facing Rangai Gowder Street and that there is an entrance from the said street to premises No.392. Regarding the structure of the building, the Commissioner has stated that he has noted four beams in both the premises and that on all these four beams the terrace rests and three beams are in a rented out portion and the fourth beam is across the middle of the packing room of the petitioner. Exs.C-3 and C-4 are the second report and plan of the Commissioner. It is seen from the plan that Door No.391 has a separate entrance and Door No.392 is having entrance on the west facing the street. The Commissioner has stated that on the south of corridor, he has found partly terraced and partly tiled room and that the above room is the rear portion of Door No.392. The Commissioner has also observed that there is no direct access from the premises bearing Door No.392 to the premises bearing Door No.391.
9. Now, the crucial question that arises for consideration is whether the premises in occupation of the petitioner i.e., D.No.392 is part and parcel of D.No.391. On the above aspect of the case, learned counsel for the landlord and tenant relies upon certain decisions. It cannot be disputed that in determining the question whether the premises occupied by the tenant is part of the building where the landlord resides, the oneness of the building and not the oneness of the ownership of two different buildings that has to be taken into consideration. Learned counsel for the petitioner relies upon the decision reported in A.MOHAMMED JAFFAR SAHEB Vs.A.PALANIAPPA CHETTIAR (1964 ILR 34 D.B), which was rendered while the old Rent Control Act 25/49 was in force. Section 7(3)(c) of the old Act corresponds to Section 10(3)(c) of the present Act. In the above decision, it is held thus:-
"that a plain reading of Section 7(3)(a) is that the landlord in occupation of a portion of a block of building could for his own accommodation evict the tenant in occupation of another portion of the same block. This he would be entitled to, whether or not the portion in the occupation of the tenant has got means of separate ingress and egress, whether, it has been registered in the municipal property register as a separate unit of assessment or not, and whether the access to the house is by the same street from which the landlord has got access to his portion or not. These are wholly irrelevant circumstances in order to ascertain the true position under Section 7(3)(c) of the Act.It is, further, held in the above decision that what is meant by bona fide is that the landlord should not seek eviction on the pretence of requiring additional accommodation with the oblique motive of achieving some other purpose. In the above decision, the Court has held that building includes part of the building and that part must be let or must be such as to be let separately for residential or non-residential purposes. Learned counsel for the landlord relies upon the observations in the decision referred to above to substantiate his plea that the fact that two premises which bear separate door numbers will not be a vital factor to decide the crucial question.
The facts of the above case will show that the landlord is the owner of the building which consists of one block and which consist of other shops each bearing a distinct and separate door number and that the upstair portion of the shops facing the road are in possession of the landlord and that he is having residence in the first floor over the shops facing another road. In the above case, the District Judge has given a finding that the landlord is occupying the upstair portion and living there with his family and that he has also got the downstairs portion as his business place and that the premises occupied by the respondent is a portion of the main building. The Court agreeing with the above findings of the District Judge has rendered the ruling referred to above.
10. In B.KANDASAMY REDDIAR Vs. O.GOMATHI AMMAL , the Apex Court has defined the term "building" occurred in Section 10(3)(c) of the Act thus:- "In other words both 'building' and 'part of building' independently is to be construed as 'building' within this definition clause"
There cannot be any dispute that the definition 'building' will also take in a portion or part of the same building. The facts of the above case will show that the landlady is the owner of the building known as "Gomathi Lodge" and in its first and second floor, she runs a lodging house and in the ground floor there are three shops of which one is a betel nut shop and the other is D.No.147 in which a restaurant is run by the tenant.
11. Learned counsel for the petitioner relies upon the recent decision of this High Court reported in KARUR GHEE STROES Vs. N.PALANIAPPAN (2001 (3) CTC 206). In the above decision, the Court on consideration of the other decisions has held that in all the cases it was found on facts that there was no strucutural unity in the building that was in the occupation of the landlord and the building that was in the occupation of the tenant and that in this case, two shops are part of one building which is divided by a wall. The facts of the above case will also show that the landlord was carrying on business at No.67, which is adjacent to the petition premises. The question whether the landlord require the premises in occupation of the tenant as additional accommodation and the question whether the premises in occupation of the tenant is part and parcel of the same building would depend upon the structural unity of a particular building . It is no doubt true that the mere fact that two buildings are separated by a wall will not play any vital role in deciding the crucial question. In fact, in the decision reported in GANGARAM Vs. N.SHANKAR REDDY , the Apex Court has held that the fact that two buildings are separated by a single wall with no intervening space would not alter the situation in any manner because the identity of two separate buildings is not to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them. In the same decision, the Apex Court has formulated a practical test in deciding the above question and has held thus:- "A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord's possession and enjoyment of the premises in his occupation being affected"
If the ratio laid down in the above decision is applied to the present case, the decision rendered by the Appellate Authority cannot be said to be vitiated by any infirmity.
12. As already stated, the Commissioner's plan and report will show that two buildings are separated by a wall and that the buildings are having separate entrance. Though the above fact alone will not establish that two buildings are separate and distinct, the facts as to how the buildings were used and the shop in the occupation of the tenant was altered should be taken into consideration. On this aspect, the evidence of P.W.1, the petitioner will support the case of the tenant. P.W.1 has admitted in his evidence that the petition mentioned building was demolished and reconstructed in the year 1972 and that before that it was a tiled building and that now, the petition mentioned building is a terraced building. He has also admitted that after the demolition and reconstruction, the petition mentioned property is in possession of the tenant only. He has also stated that if the respondent/tenant vacate the building, it would fetch higher rent. On P.W.1's own showing, it is clear that the petition mentioned building was treated as a separate building and that substantial alterations were made and that the original tiled building was converted as a terraced building. It is seen from the features noted in the Commissioner's report that if the petition mentioned building is sold and possession is delivered to the purchaser, the premises in occupation of the petitioner and his two sons would not be affected. Therefore, it cannot be contended by the revision petitioner that the petition mentioned building is part and parcel of the premises in occupation of the landlord.
13. It is seen from the evidence of P.W.1 that from the year 1972, after making alterations in the petition mentioned property, the same is being let out to the tenants. The respondent/tenant is in possession of the building from the year 1982. R.W.1, the tenant has stated that if he is asked to vacate the premises, his business would be affected and his life would be put to peril. It is seen that the tenant has been doing business for number of years in the petition mentioned property. The petition mentioned property is a small building. On the other hand, the landlord is in occupation of the adjacent building which is larger than the petition mentioned building. Therefore, it has to be held that the respondent would be put to hardship and he would loose his business if he is ordered to vacate the premises. For the reasons stated above, I hold that the petition mentioned building and the premises in occupation of the landlord are separate buildings. Therefore, it cannot be said that the tenant is in occupation of the portion in the same building so as to attract Section 10(3)(c) of the Act.
14. The Appellate Authority on consideration of the materials has come to the correct conclusion in holding that the landlord is not entitled to additional accommodation. I hold that the Appellate Authority has rendered the finding on proper appreciation of the evidence and as such, the said findings do not merit any interference in this revision. I hold that there are no merits in the revision petition.
15. In the result, the civil revision petition is dismissed. No costs. The order passed by the Appellate Authority is confirmed