IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28/07/2006
Coram
The Hon'ble Mr.JUSTICE S.RAJESWARAN
C.R.P. NPD No.971 of 2003
K.Bhuvanesh .. Petitioner
-Vs-
1.Rakman Bibi
2.Basheer Ahamad
3.Shahul Hameed
4.Noor Mohammed
5.Tmt.Jamul Bibi
6.Tmt.Kader Balu .. Respondents ..
Revision Petition filed against the order dated 9.4.2003, passed in
R.C.A.No.740/1997, on the file of the VII Judge, Court of Small Causes,
Chennai confirming the order dated 26.6.1997 in R.C.O.P.No.33/1992 , on the
file of the XVI Judge, Court of Small Causes, Chennai.
!For Petitioner : Mr.V.Ragavachari
^For Respondents : Mr.V.Eapen Varghese
:ORDER
This Revision Petition has been filed against the order dated
9.4.2003, passed in R.C.A.No.740/1997, on the file of the VII Judge, Court of
Small Causes, Chennai confirming the order dated 26.6.1997 in
R.C.O.P.No.33/1992, on the file of the XVI Judge, Court of Small Causes,
Chennai.
2. The unsuccessful tenant before both the authorities below is the
revision petitioner before this court.
3. The respondents 1 to 6 herein filed RCOP No.33/1992 against the
revision petitioner under Sec.10(2)(i) of the Tamil Nadu Buildings ( Lease &
Rent Control) Act, 1960 (hereinafter called ‘the Act’) for eviction of the
petitioner herein on the ground of wilful default. The revision petitioner
resisted the RCOP by contending that the respondents are not the owners of the
property and the building was put up by his father R.Krishnan and the land
belonged to Sri Sowmiya Damodara Perumal Devasthanam. The Rent Controller by
order dated 26.6.1997 ordered eviction against which an appeal was filed in
RCA No.740/1997 and the Appellate Authority also confirmed the order of the
Rent Controller and dismissed the Appeal by order dated 9.4.2003 and
challenging the order dated 9.4.2003 the above Revision Petition has been
filed by the tenant under Sec.25 of the Act.
4. Heard the learned counsel for the revision petitioner and the
learned counsel for the respondents. I have also perused the documents and
the judgments relied on by them in support of their submissions.
5. The learned counsel for the revision petitioner submitted that
when the title of the landlord was denied by the tenant, the Rent Controller
should go into the bona fide of such denial and if the denial is bona fide,
the parties should be directed to approach the civil court. The learned
counsel found fault with the Rent Controller for going into the title
elaborately as if it was a civil court. According to the learned counsel, the
Appellate Authority has also committed the same mistake of the Rent Controller
and therefore both the orders are bad in law and liable to be set aside.
6. He relied on the following judgments in support of his
contention:-
(1) 1963(II) SCJ 475 (Om Prakash Gupta v. Dr.Rattan Singh)
(2) 1982(I) SCC 223 (Chhaganlal K.Mehta v. P.N.Haribhai
(3) 1987(4) SCC 424 (D.Satyanarayana v. P.Jagadish
(4) 1990(4) SCC 286 (LIC v. India Automobiles & Co.)
(5) 1997-1- L.W. 1 (Thangavelu v. Ramadoss)
(6) 1996-1-L.W. 83 (Annamalai and another v. The Official Receiver,
North Arcot Ambedkar District and another)
(7) AIR 2002 S.C. 2171 (A.V.G.P.Chettiar & Sons v. T.Palanisamy Gounder)
(8) AIR 2005 Cal. 281 (Sambhunath Mitra v. Khattan Consultant Ltd.)
7. Per contra, the learned counsel for the respondents submitted that
both the authorities below did go into the question of whether the denial is
bona fide and having considered that the denial is not bona fide, the order of
eviction is passed by the Rent Controller which was confirmed by the appellate
authority. Therefore according to him there is no infirmity in the orders
passed by the courts below.
8. In RCOP No.33/1992 the respondents herein have stated that the
revision petitioner is in arrears of rent from April 1991 to November 1991 and
the tenant has deliberately committed wilful default. It was also
specifically pointed out in para 4 of the petition that on a previous occasion
also the tenant committed wilful default in payment of rent from September
1988 to March 1991 amounting to Rs.3,720/and the entire arrears was paid after
the issue of lawyer’s notice dated 12.4.1991 after admitting the default in
the reply notice dated 19.4.1991.
9. Even though the tenant has denied the title of the landlord by
contending that the land belonged to Devasthanam and his father constructed
the building as early as 1950, he did not deny the lawyer’s notice dated
12.4.1991 and his reply notice dated 19.4.1991 and also the subsequent payment
made by him towards the rental arrears. The lawyer’s notice dated 12.4.1991
was marked as Ex.P4 and the reply notice dated 19.4.1991 was marked as Ex.P5.
In Ex.P4, the tenant was called upon to pay the entire arrears of rent from
September 1988 to March 1991 amounting to Rs.3,720/-. In the reply dated
19.4.1991 (Ex.P5) the tenant contended that when he tendered the rent for the
month of August 1988 and also on subsequent date, the respondents herein
evaded to accept the rent by stating that the entire rent be kept in the bank
in a lump sum and the same would be received after his return from abroad.
Further it was stated in Ex.P5, that as per the demand made in Ex.P4, a Demand
Draft for Rs.3795/- was enclosed, comprising of a sum of Rs.3,720/-towards the
rental arrears and Rs.75/- being the cost of notice dated 12.4.91.
10. Exs.P4 and P5 would make it very clear that the revision
petitioner has accepted the landlord-tenant relationship. In Ex.P4 it is also
very clearly stated by the landlord that he is the absolute owner of the shop
portion under the tenant’s occupation on a monthly rent of Rs.120/-. This was
not at all denied and the demand in the notice was complied with by not only
paying the rental arrears, but also by paying the cost of notice as demanded
by the landlord. If at all the tenant’s father had put up the building as
early as in the year 1990 on the lands owned by Devasthanam, the tenant would
have never given a reply as in Ex.P5. This fact was specifically adverted to
by both the authorities below to come to a conclusion that the setting up of
title by the tenant on Devasthanam and his father cannot be accepted at all.
In fact in his cross-examination the tenant deposed that he only signed Ex.P5
but the same was obtained by him under threat and coercion. As rightly
observed by both the authorities below that if at all Ex.P5 was obtained by
threat and coercion, the tenant would have definitely stated so in the counter
statement filed in RCOP No.33/1992 while countering the averments contained in
para 4 of the petition filed in RCOP No.33/1992. Therefore this claim of
obtaining Ex. P5 under threat and coercion is only an after-thought to get
over Ex. P5 and the tenant having admitted the ownership and having paid the
rental arrears as contained in Ex.P5 is now estopped from contending that
there is no landlord tenant relationship between the parties under Sec.116 of
the Indian Evidence Act.
11. In (1982) 1 SCC 223 cited supra, the Hon’ble Supreme Court held
that estoppel deals with question of facts and not of rights. A man is not
estopped from asserting a right which he had said that he would not assert and
there can also be no estoppel against a statute.
12. In the above decision, the Hon’ble Supreme Court dealt with the
concept of estoppel as contemplated under Sec.115 of the Indian Evidence Act
and discussed the instances under which a case could be brought within the
scope of estoppel as defined under Sec.115 of the Indian Evidence Act. But in
the case on hand the estoppel is contemplated under Sec.116 of the Indian
Evidence Act and therefore the above decision is not useful for the learned
counsel for the petitioner.
13. In AIR 2002 S.C. 2171 cited supra, the Hon’ble Supreme Court
held that mere giving of undertaking by the tenant to vacate the premises for
obtaining stay of execution of eviction decree, does not foreclose a tenant
from availing of any statutory remedies available to him by way of appeal or
revision or under the Constitution.
14. The case of the Hon’ble Supreme Court is easily distinguishable
from the facts of the present case.
15. The learned counsel for the petitioner placed strong reliance on
the decision of the Hon’ble Supreme Court reported in (1987) 4 SCC 424 cited
supra wherein it was held that when there is a threat of eviction by a person
claiming title paramount, i.e., head lessor the tenant is not estopped under
Sec.116 of the Evidence Act from challenging the title and the right to
maintain the eviction proceedings of the other lessor. The relevant portion
of the judgment of the Hon’ ble Supreme Court is as follows:-
“3. The appeal must be allowed on the short ground that there being a
threat of eviction by a person claiming title paramount i.e., head lessor
Krishnamurthy, the appellant was not estopped under Section 116 of the
Evidence Act from challenging the title and his right to maintain the eviction
proceedings of the respondent P.Jagadish as the lessor. Section 116 of the
Evidence Act provides that no tenant of immovable property shall, during the
continuance of the tenancy, be permitted to deny that the landlord of such
tenant had, at the beginning of the tenancy, a title to such immovable
property. Possession and permission being established, estoppel would bind
the tenant during the continuance of the tenancy and until he surrenders his
possession. The words “during the continuance of the tenancy” have been
interpreted to mean during the continuance of the possession that was received
under the tenancy in question, and the courts have repeatedly laid down that
estoppel operates even after the termination of the tenancy so that a tenant
who had been let into possession, however defective it may be, so long as he
has not openly surrendered possession, cannot dispute the title of the
landlord at the commencement of the tenancy. The rule of estoppel is thus
restricted not only in extent but also in time, i.e., restricted to the title
of the landlord and during the continuance of the tenancy; and by necessary
implications, it follows that a tenant is not estopped, when he is under
threat of eviction by the title paramount, from contending that the landlord
had no title before the tenancy commenced or that the title of the landlord
has since come to an end.
4. The rule of estoppel embodied under Section 116 of the Evidence
Act is that, a tenant who has been let into possession cannot deny his
landlord’s title, however defective it may be, so long as he has not openly
restored possession by surrender to his landlord. During the continuance of
the tenancy, the tenant cannot acquire by prescription a permanent right of
occupancy in derogation of the landlord’s title by mere assertion of such a
right to the knowledge of the landlord. See : Bilas Kunwar v. Desraj Ranjit
Singh (ILR (1915) 37 All 557 ( PC) and Atyam Veerraju v. Pechetti Venkanna
(1966) 1 SCR 831 : AIR 1966 SC 629. The general rule is however subject to
certain exceptions. Thus a tenant is not precluded from denying the
derivative title of the persons claiming through the landlord. See : Kumar
Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Limited (AIR 1937 PC
251 : 169 IC 556 : (1937) 2 MLJ 286. Similarly, the estoppel under Section
116 of the Evidence Act is restricted to the denial of the title at the
commencement of the tenancy. From this, the exception follows, that it is
open to the tenant even without surrendering possession to show that since the
date of the tenancy, the title of the landlord came to an end or that he was
evicted by paramount title holder or that even though there was no actual
eviction or dispossession from the property, under a threat of eviction he had
attorned to the paramount title-holder. In order to constitute eviction by
title paramount, it has been established by decisions in England and in India,
that it is not necessary that the tenant should be dispossessed or even that
there should be a suit in ejectment against him. It will be sufficient if
there was threat of eviction and if the tenant as a result of such threat
attorns to the real owner, he can set up such eviction by way of defence
either to an action for rent or to a suit in ejectment. If the tenant however
gives up possession voluntarily to the title-holder, he cannot claim the
benefit of this rule. When the tenancy has been determined by eviction by
title paramount, no question of estoppel arises under Section 116 of the
Evidence Act. See : Adyanath Ghatak v. Krishna Prasad Singh (AIR 1949 PC
124) The principle must equally apply when the tenant has attorned under a
threat of eviction by the title paramount and there comes into existence a new
jural relationship of landlord and tenant as between them. The law is stated
in Vol. 27 Halsbury’s Laws of England, 4th edn., para 238:
238. Eviction under title paramount. In order to constitute
an eviction by a person claiming under title paramount, it is not necessary
that the tenant should be put out of possession, or that proceedings should be
brought. A threat of eviction is sufficient, and if the tenant, in
consequence of the threat, attorns to the claimant, he may set this up as an
eviction by way of defence to an action for rent, subject to his proving the
evictor’s title. There is no eviction, however, if the tenant gives up
possession voluntarily.
Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh (19 87) 4
SCC 319, to which one of us was a party, observed: (SCC p.327, para 11)
The estoppel contemplated by Section 116 is restricted to the
denial of title at the commencement of the tenancy and by implication it
follows that a tenant is not estopped from contending that the title of the
lessor has since come to an end.
See also : Fida Hussain v. Fazal Hussain (AIR 1963 MP 232 : 1963 MPLJ 248,
K.S.M. Guruswami Nadar v. N.G.Ranganathan (AIR 1954 Mad 402),
S.A.A.Annamalai Chettiar v. Molaiyan (AIR 1970 Mad 396: (1970) 2 Mad LJ 562:
1969 Ren CR 1114 : 1971 Ren CJ 215 and Chidambara Vinayagar Devasthanam v.
Duraiswamy (ILR (1967) 1 Mad 624″
16. The decision rendered by the Apex Court will not apply to the
facts of the present case. The revision petitioner’s case is that the land
belonged to the temple and the superstructure was put up by his father. It is
not established by the revision petitioner that there was a threat of eviction
by the temple to evi ct him from the lands to enable him to deny the title of
the landlords. In fact the revision petitioner as tenant asserted his right
as a tenant who is entitled to purchase the land from the temple under the
Tamil Nadu City Tenants Protection Act as pleaded by him in the counter
statement filed by him in RCOP No.33/1992.
17. In AIR 2005 Cal. 281 cited supra, a Division Bench of Calcutta
High Court held that when the tenant due to ignorance of law paid rents to
third party, it will not stand as estoppel against the tenant from denying the
derivative title of the third party and from retendering rent to the real
landlord.
18. This decision is also not applicable to the facts of the present
case as the revision petitioner has categorically admitted the ownership of
the landlord and paid rental arrears as is evident from Ex.P5 .
19. The learned counsel for the revision petitioner strenuously
contended that in a rent control proceedings, title disputes should not be
decided by the Rent Controller as the same is outside the jurisdiction of the
Rent Control Act. He further contended that the Rent Controller has gone into
the title elaborately and held that the ownership lies with the landlord and
the revision petitioner does not have title.
20. In (1990) 4 SCC 286 cited supra, the Hon’ble Supreme Court has
held that by virtue of Section 10(2)(vii) read with the proviso to Section
10(1) of the Tamil Nadu Rent Control Act, the jurisdiction to decide the
question of title is denied to the Rent Controller in a matter of eviction of
tenant.
21. In 1997-1-L.W. 1 cited supra, this court held that for a
petitioner seeking to evict a person who is in occupation of a premises, the
petitioner will have to establish the rights to the relief and he must show
that the occupant is a tenant and the petitioner is his landlord.
22. In 1996-1-L.W. 83 cited supra, this court held that adjudication
on title can be decided only by a civil court and the Rent Controller has to
only go into the question of whether the denial of title is bona fide or not.
23. Citing the above decisions, the learned counsel for the
petitioner submitted that as the authorities below have adjudicated the issue
of title in the rent control proceedings the same is without jurisdiction and
the orders are liable to be set aside.
24. I am unable to accept the contentions of the petitioner. It is
settled law that the Rent Controller has no jurisdiction to adjudicate on
title and the Rent Controller has to only to decide the bona fide of denial of
title by a tenant in a Rent Control proceedings under Tamil Nadu Rent Control
Act, 1960.
25. It is true that the Rent Controller in the present case has gone
into the question of title, but he has clearly observed in his order that the
ownership of the petition building should not be gone into by him, still he
could go into the question of prima facie title of the petition building.
Therefore what was decided by the Rent Controller is only a prima facie title
of the landlord and not the real title of the petition property which can be
gone into by the trial court. Therefore on this ground, the revision petition
cannot be adjudicated in favour of the tenant. That apart, the question of
bona fide or otherwise of the denial of title by the revision petitioner was
gone into by both the authorities and a finding was rendered that the denial
is not bona fide in the light of Exs.P4 and P5. Therefore once it is
established that the denial of title is not bona fide, then the tenant has to
face the rent control proceedings but much to his detriment.
26. In the result, I do not find any merits to interfere with the
orders of the authorities below. Consequently, the Civil Revision Petition is
dismissed. No costs. C.M.P.No.10123/2003 is also dismissed, and
V.C.M.P.No.3744/2005 is closed.
sks
To
The Registrar,
Small Causes Court, Chennai.104.