JUDGMENT
R. Balasubramanian, J.
1. There were three Rent Control Petitions being R.C.O.P. No. 48 of 1988, R.C.O.P. No. 49 of 1988 and R.C.O.P. No. 51 of 1988 on the file of the Rent Controller (District Munsif) Tirupattur. The petitioner in each of these three cases is the same landlord. The respondent in each of these three cases are three separate tenants respectively. In all these three cases, eviction was sought for on the ground of wilful default in the payment of rent and for owner’s occupation of a non-residential building from each of the tenant. The Rent Controller agreed with the landlord in all the three cases on both the grounds and ordered eviction. Each of the tenant filed three independent appeals and that were taken on file as R.C.A. No. 4 of 1992, R.C.A. No. 5 of 1992 and R.C.A. No. 3 of 1992. All the three appeals were allowed on merits and therefore these revisions before this Court namely, C.R.P. No. 3137 of 1993, C.R.P. No. 3145 of 1993 and C.R.P. No. 3577 of 1993.
2. I heard Mr. R.M. Krishna Raja, learned Counsel appearing for the revision petitioner in each of these three revisions and Mr. V. Ragavachari, learned Counsel appearing for the respondent in each of these three revisions. According to the learned Counsel for the revision petitioner, the Appellate Authority had completely erred in law and on facts in reversing the order of the Rent Controller, when the landlord had made out the case the grounds of eviction in each of these three cases. According to him, it is established that the landlord is the owner of the property being the subject matter of tenancy in favour of each of the tenant; each of the tenant have committed wilful default in the payment of rent and the requirement for owner’s occupation of the premises for non-residential purposes. In addition to this, the learned Counsel for the revision petitioner also submitted that each of the tenant is guilty of denying the title of the landlord; it is not bona fide and if it is found established, then there would be no impediment for this Court to order eviction on that ground as well, though the rent control petition is not amended including that cause of action. As against these submissions, Mr. V. Ragavachari, learned Counsel for the respondent in each of these three cases submitted that it is true that the tenants have not paid the rent to the landlord. However from the mere non-payment of the rent itself, it cannot be said that it is a wilful default. The learned Counsel would add that the circumstances and materials available in this case would not lead to the conclusion that the tenants are guilty of committing wilful default. On the other hand, the learned Counsel submitted that each of the tenant was justified in their conduct. As far as the requirement of owner’s occupation is concerned, the submission of the learned Counsel is that on the facts pleaded and the evidence let in by the landlord, it cannot be said that the requirement has been made out. As far as the last issue is concerned about the denial of the title not being bona fide, the learned Counsel would state that the stand taken by each of the tenant in their respective counter statement would not amount to denying the title. Even assuming it amounts to, yet it has to be held that it is only bona fide. In any event, the learned Counsel for the respondent in each of these three revisions submitted that unless the rent control petition is amended including that ground also as a cause of action in the present case, no relief could be granted on that.
3. In the light of the submissions made by the learned Counsel on either side, I perused the pleadings, the records as well as the order under challenge. In order to appreciate the submissions of the learned Counsel on either side, it is better I extract the bare minimum pleadings. The pleadings in all the three cases (both the petition and the counter) are more or less on the same terms. The rent per month is Rs. 250 in the first case, Rs. 300 in the second case and Rs. 250 in the third case. The portions in the occupation of each of the tenant is situated in the ground floor, first floor and the ground floor of premises No. 70, (in the first and the third case) and premises No. 71 (second case) Broad Bazaar, Ambur. The original owner of the above referred to premises and the erstwhile landlord of each of the tenant is one Umapathy. The landlord in each of the rent control case had purchased the properties including those in the occupation of the tenants from Umapathy under a registered sale deed dated 13.2.1988 and he was put in possession of the property. The tenants were informed about the purchase and they were directed to attorn. However the tenant in each of these three cases had not paid the rent to the petitioner from 13.2.1988. Thus each one of them were in default of the rent from 13.2.1988 till 30.6.1988. The petition premises is also bona fide required by the landlord for doing business and he does not own any other premises of his own. The landlord had also terminated the tenancy of each of the tenant by a notice dated 5.4.1988 and called upon them to vacate the premises on the ground of wilful default and personal use. The counter affidavit of each of the tenant is also more or less on the same lines. It discloses, the following:
The tenancy under the erstwhile landlord and the quantum of rent was admitted. The erstwhile landlord always used to pass receipts for having received the rent. The tenants does not know the sale transaction between the erstwhile landlord and the present landlord. No intimation regarding the attornment was given to them. Immediately after receipt of the notice, they met the erstwhile landlord and they were informed that the tenancy was not attorned to the petitioner. Therefore there is absolutely no relationship of landlord and tenant between the petitioner and the respondent as contemplated in law. When there is no relationship of landlord and tenant, the court has no jurisdiction to entertain the eviction petition. As there is no such relationship, the tenant has not paid any rent in the capacity of the tenant to the petitioner. Therefore the question of wilful default in the payment of rent does not arise. As statutory tenants, they continued to pay the rent to the erstwhile landlord who was also receiving the same and passing the necessary receipts therefor. There is no bona fide in the requirement of owner’s occupation since there is no landlord tenant relationship and the question of owner’s occupation should not be considered at all. The tenant had given a suitable reply to the petitioner for the notice given to him and the same may be read part and parcel of this counter (this last statement is found in each of the three counter affidavits). The erstwhile landlord is a necessary party and therefore his non-joinder is fatal.
4. All the three rent control petitions were taken up for trial together and it was disposed of by a common order. On behalf of the landlord he examined himself as P.W.1. On behalf of the three tenants, the tenant in the third case (whenever mere is a reference to first case, second case and third case in this order, it is in relation to the seriatim of the three revisions before this Court) alone examined himself as R.W.1. On the side of the landlord, Exs.A-1 to A-18 were marked and on the side of the tenants Exs.B-1 to B-33 were marked. When the appeal was pending, Exs.B-34 to B-97 were marked. Though before the Rent Controller only two issues were framed namely, whether the tenants are guilty of committing wilful default in the payment of rent and whether the requirement of owner’s occupation is justified and bona fide, yet before the Appellate Authority besides those two issues one additional issue was also framed namely, whether mere exists the relationship of landlord and tenant between the parties. The issues framed in the appellate court was common in all the three cases. The appellate Judge took up the issue of jural relationship between the parties in detail and answered it in favour of the tenant in each of these three cases. On that finding the appellate Judge came to the conclusion that the rent control petitions themselves were not maintainable and thus allowed all the appeals.
5. On these broad facts available in this case and the findings rendered by the Appellate Authority, let me take up for decision first whether mere exists the landlord and tenant relationship in each of these cases between the parties. There is no dispute that each of the tenant were inducted into possession by one Umapathy who was the original owner of the petition premises. Ex.A-3 is the registered sale deed dated 13.2.1998 executed by the said Umapathy in favour of the present landlord. The consideration reserved under the sale deed is Rs. 1,97,000. It is an absolute and unqualified sale in favour of the present landlord. The recital in Ex.A-3 shows that out of the consideration reserved under this document, the buyer has to discharge certain encumbrances created by the vendor, Exs.A-4 to A-6 are the discharged mortgage deeds. Pursuant to Ex.A-3 in the revenue records mutation of names in favour of the present landlord took place and it is marked as Ex.A-7 Ex.A-8 to A-11 are the house tax receipts relating to the petition premises in favour of the present landlord. Exs.A-12 to A-15 are the proceedings of the Tamil Nadu Electricity Board for transferring the service connection of the petition premises in the name of the present landlord. The landlord in his evidence as P.W-1 had deposed to the factum of purchase under Ex.A-3; discharging the encumbrances; issued Ex.A-1 notice, which have been served on each of the tenant and his right to collect the rent. The landlord had also stated in his evidence that the erstwhile landlord took him to the tenants and told them to pay the rents to him and that the tenants did not pay the rent, though asked on several occasions. He would also state that he is working in a Sweet Stall and he needs the building for his own business.
6. This witness was cross examined stating that there is no landlord-tenant relationship between the parties which was denied by this witness. As against this evidence, the tenant in the third case alone, as already stated, gave evidence and others did not get into the witness box at all. In his evidence, he would state that the portion in his occupation belongs to Umapathy and he is continuing to pay the rent to him. He would also state that he did not know about the sale in favour of the present landlord; Umapathy did not tell him to attorn to the present landlord and there is no agreement between him and the present landlord regarding the tenancy; he had sent a reply to Ex.A-1 notice which is marked as Ex.B-32 in this case. After receipt of Ex.A-1 notice, he had contacted Umapathy and Umapathy had told him that he did not sell the property and that he could continue to pay the rent to him. He would assert that there is no landlord – tenant relationship between him and the landlord in this case and in cross examination he would assert that he is going to examine Umapathy on his side and he did not know about the cancellation of the sale deed in favour of the present landlord. He had received Ex.A-1 notice on 7.4.1988. He had contacted Umapathy immediately after receiving Ex.A-1 and he was told not to pay the rent. The question therefore is whether on these materials, there exists any jural relationship of landlord and tenant between the parties and could it be sustained. Ex.A-3 is the registered sale deed. It mentions the names of the three tenants in this case and also mentions about the advance amount received from each of the tenant by the vendor. Under the sale deed, the advance amount received from each of the tenant lying in the hands of the vendor was treated as part of the sale consideration and the buyer was directed to refund to each of the tenant, the respective advance amounts when they vacate. The tenants were served with Ex.A-1 notice. The notice marked as Ex.A-1 in this case was addressed only to the tenant in the third case and the copies of the notice that had been sent to the other two tenants are not marked. However it may be noticed that in the rent control petition against the tenants in those two cases, there is a reference to the issue of this notice and the counter statement of each of the tenant in those two cases shows the receipt of the said notices and sending a detailed reply. In any event the tenants in the first case and the second case had not chosen to get into of the box. Even assuming for a moment without admitting that the tenants did not have knowledge about the purchase of the property by the landlord on the date of Ex.A-3 and even subsequent thereto, yet from the date of receipt of Ex.A-1 notice, it must be deemed that the tenants have knowledge about the purchase of the property by the landlord. This document, namely Ex.A-3 is a registered instrument and all rights, title and interest of the vendor in the petition premises have been transferred to the buyer. The transfer is complete in “all aspects. Therefore it has to be necessarily held that the landlord had validly purchased the petition mentioned premises from the erstwhile landlord of the tenants in this case. Therefore on and from that date as owner, the present landlord can exercise all his powers including, the collection of the rent in relation to that property, especially when the respondents are already tenants under the vendor. The transferee gets the rights of the transferor under Section 109 of the Transfer of Property Act. The stand of the tenants that they contacted Umapathy and he told them that he had not conveyed the property and that subsequently he had cancelled it by another instrument and therefore the tenants placed implicit faith on such statement cannot be accepted without further materials. The case of the landlord is that the tenants have chosen to collude with their erstwhile landlord to defeat the legal rights of the landlord flowing from Ex.A-3. R.W-1 had admitted categorically in his evidence that he did not know about the cancellation of the sale deed in favour of the present landlord and that he would add that, once the sale deed is executed, then the interest in the property should have been transferred to the buyer.
7. In chief examination R.W-1 would state that he did not know the problem between the buyer and his vendor. He would also state that he wanted to examine Umapathy the vendor and yet he had not chosen to examine him. The tenant cannot simply take shelter under the so called instructions of Umapathy not to pay the rent and wash away his hands. He is a statutory tenant and the Statute mandates that it is his legal obligation to tender the rent to the landlord whomsoever it may be. Under these circumstances, the tenant should have been cautions enough to get at least something in writing from Umapathy regarding the payment of rent and to whom it has to be paid. No such precautions had been taken by the tenant in this case. But on the other hand, though he was ignorant about the cancellation of the sale deed and ignorant about the problem between the vendor and the buyer, he would persist in his attitude on denying the landlord tenant relationship in this case relying upon the oral instructions stated to have been given by the said Umapathy. On the face of the materials and as against the evidence of R.W. 1 who is armed with a registered sale deed in his favour, a very heavy duty is cast upon the tenant (in the third case) to examine the said Umapathy, if at all he can substantiate his case. For the reasons best known to him though he offered to examine him at an earlier stage, did not choose to examine him at all. The very fact that Umapathy continued to receive the rent from each of the tenant as evidenced by Exs.B-2 to B-33 (tenant in the third case) B-34 to B-66 (tenant in the first case) and B-17 to B-97 (tenant in the third case) for the period commencing from 5.2.1988 to 5.8.1988 (third case) 5.5.1987 to 5.7.1990 (first case) and 5.2.1988 to 5.7.1990 (second case) would not by itself establish the right of Umapathy to collect the rent. Assuming that these receipts referred to above evidences the payment of the rent by each of the tenant to Umapathy, yet the arrangement or the circumstances under which it came to be so paid do not stand satisfactorily explained in the absence of the evidence of Umapathy himself or in the absence of any written communication from him. Therefore the evidence available in court is the oral evidence of P.W.1 on the one hand and the evidence of R.W.1 on the other hand, coupled with the document of title in favour of the landlord, Ex.P-1 notice and the various receipts.
8. On a consideration of these materials, I am of the opinion that the denial of landlord-tenant relationship in this case by each of the tenant is not well founded. The way in which each of the tenant took the stand in this case denying the landlord-tenant relationship speak volumes about their mala fide intention. None of them have taken even the minimum precaution of ascertaining, after receipt of Ex.A-1 notice, the rights of the present landlord under Ex.A-3 in a manner known to law. The tenants cannot be allowed to take shelter in cases of this type under the alleged oral instruction of the vendor. I can understand that at least after receipt of summons in the rent control petition, they could have recognised the present landlord and explained the circumstances under which they did not pay the rent. In Ex.B-32, which is the reply sent by the tenant (third case), he had categorically denied the landlord-tenant relationship. He continued to persist that stand even in the counter statement. Except the alleged oral instruction of Umapathy, the tenant does not rely upon any other material to deny the landlord-tenant relationship. It is not as though the tenant is made a party to any proceeding either before Civil Court or Criminal Court the instance of the said Umapathy which would disable him from recognising the right of the present landlord as his landlord and attorn the tenancy in his favour. If a tennat can refuse to recognise the relationship of landlord-and tenant between the purchaser and himself on such flimsy material, then there would be no end to it at all. What I am trying to impress upon is that the tenant who wishes to deny his relationship as a tenant with the buyer of the property, should have some materials which would cause a reasonable apprehension in his mind that if he recognises the buyer as his landlord, then he would be facing the risk of saving his possession of the property from the erstwhile landlord. I find no such materials at all in this case in favour of the tenant.
9. Commencing from Ex.B-3 onwards all the receipts are subsequent to the purchase by the landlord in this case and commencing from B-5 onward all the receipts relate to the period subsequent to the receipt of Ex.A-1 notice (third case); likewise Ex.B-38 onwards and Ex.B-40 onwards (first cases) and Ex.B-68 onwards and Ex.B-70 onwards (second case). The fact that each of the tenant continued to pay the rent to the erstwhile landlord even after the sale in favour of the present landlord, would not by itself arm the tenant with a right to deny the landlord-tenant relationship. Under these circumstances, I have to hold that each of the tenant have denied the title of the landlord knowing fully well the consequences of the same. The reasons assigned by the Appellate Authority for holding that there exists no relationship of landlord and tenant are wholly unsustainable in law.
10. As far as the eviction on the ground of wilful default is concerned, the fact remains that none of the tenants have paid the rents to the landlord subsequent to 13.2.1988. I have already held in this case that each of the tenant has denied the landlord tenant relationship and that such denial is not bona fide. On the basis of that conclusion, it has to be necessarily inferred that the default in this case is not a mere default but definitely a wilful default. On this aspect Mr. V. Ragavachari, learned Counsel for the respondents submitted that the present landlord is holding substantial advance amount against each of the tenant in his hands and that the advance is many time in excess of the rent stated to be due. In view of the judgment of the Honourable Supreme Court of India that when the landlord holds an excess advance, he is bound to adjust the alleged arrears of rent whether there is any demand or not for such adjustment from the tenant and therefore the eviction on the ground of wilful default cannot be sustained, is the argument of the learned Counsel for the respondent. There is no scope of considering this argument at all because if a tenant wants to have the benefit of the protection afforded to him under the Tamil Nadu Buildings (Lease and Rent Control) Act, then he must submit himself under the Act and to the jurisdiction of the Rent Controller. However, in this case, by denying the landlord – tenant relationship, which 1 found to be not bona fide, I am of the opinion that each of the tenant have lost his rights to be protected under the Act. Under these circumstances, I hold that each of the tenant is also guilty of committing wilful default in the payment of rent. It must also be noticed that except the tenant in the third case, the tenants in the other two cases have not even chosen to get into the box and therefore the court is not in a position to know what their mental frame is when they decided not to pay the rent to the landlord.
11. As far as the requirement of owner’s occupation (non-residential) is concerned, I find that the materials by way of pleading and proof placed before the court by the landlord are wholly unsatisfactory to sustain that claim. Admittedly the landlord is employed in a sweet stall. That has come out in evidence, but that is not reflected in the pleading. Except stating that he needs the tenanted premises for his business purpose, he has not elaborated on that aspect. There are three tenanted portions. There is no evidence to show that business he is going to carry on and what steps he has taken regarding the same. Whether he needs all the three tenanted portions or not would again depend upon the nature of the business. It has been held that a mere desire of the landlord alone is not sufficient, but he must go one step further and prove that his requirement is really bona fide. Under these circumstances, I am inclined to agree with the submissions of the learned Counsel for the respondent that the landlord has not made out his case on the ground of owner’s occupation (non-residential).
12. It is no doubt true that the denial of landlord-tenant relationship in these cases arose as far as the tenant in the third case is concerned both prior to the rent control petition and during the rent control proceedings and as far as the tenant in the other two cases are concerned, it arose during the rent control proceedings, since the reply notice of the two tenants in the other two cases are not exhibited. The landlord admittedly had not amended the rent control petition to include this ground of denial also as a cause of action. On the pleadings and evidence, the Appellate Authority framed an issue on this aspect and held against the landlord. The question therefore is whether an order of eviction could be passed on this ground also without any pleadings. The point in answered in the affirmative and it is held so in M. Subbarao v. P. V.K. Krishna Rao , M. Narayanaswami v. Roya Poulk Amala, 1995 T.L.N.J. 298, K.T.H. Ahmed Mustapa v. Annapurnathamma, 1996 T.L.N.J. 424, Hussain Lorry Booking Service v. A. Sirajuddin (1991)2 M.L.J. 48. The learned Counsel for the respondents cited a number of judgments for the position what sort of proof and mode of proof is required in respect of a document produced before court. They are as follows: Bhaskar Sahu v. Anama Swara , Karuppanna Thevar v. Rajagopala Thevar (1974)2 M.L.J. 260, Zaibunnissa Bivi v. Madras State Wakf Board (1982)1 M.L.J. 301, 1955 A.P. 418 A.I.R. 1960 Mysore 324. Relying on these Judgments, the learned Counsel for the respondents argued that Ex.P-17, which is a document in writing signed by the erstwhile landlord in favour of the present landlord is not properly proved and that mere production of the same would not amount to the document itself having been proved. Under that document, the present landlord is authorised to collect the rents. Since my decision is not on Ex.P-17, I am of the opinion that the judgments referred to above are of no use. The learned Counsel also relied on the judgment reported in A.I.R. 1925 Cal. 452, for the position that the executant of the receipts marked in this case as Exs.B-2 to Ex.B-97 need not be examined when the payer has sworn to the payment. This judgment may be of use to sustain the payment under Exs.B-2 to B-31 because the tenant in the third case is the payer under these receipts and he has spoken about the same. However the tenant in the other two cases who are the payers under Exs.B-34 to B-97 had not gone into the witness box at all to speak about the payment made by them under those receipts. Under these circumstances, it can be legally said that the payments under Exs.B-34 to B-97 is not established. I have proceeded in this order and decided against the tenants assuming that those payments are true. Lastly the learned Counsel for the respondents brought to my notice the following judgments: Munisami Naidu v. Ranganathan (1991)1 M.L.J. (S.C) 42, Prithi Pal Singh v. Hira Lal (1987)2 R.C.J. 36 and Hans Raj v. Raj Iron Store (1987)1 R.C.J. 627. In the first case the pleading of the tenant was that he was not aware as to who was his landlord. On the broad set of facts in that case, the Honourable Supreme Court of India held that the statement of the tenant as referred to above would not amount to denying the title. In the other two cases on facts, are not applicable to the case on hand.
13. Under these circumstances, I am of the opinion that the landlord is entitled to an order of eviction on the ground of denial of title as well as on the ground of committing wilful default in the payment of rent. Accordingly the judgment and decree dated 27.7.1993 in R.C.A. No. 3 of 1992, R.C.A. No. 4 of 1992 and R.C.A. No. 5 of 1992 on the file of the Appellate Authority (Sub. Court) Tirupattur setting aside the order and decreetal order dated 29.11.1991 in R.C.O.P. No. 48 of 1998, R.C.O.P. No. 49 of 1998 and R.C.O.P. No. 51 of 1998 on the file of the Rent Controller (District Munsif) Tirupattur is set aside. The order of eviction granted by the Rent Controller in the above proceedings stands restored. All the Civil Revision Petitions are accordingly allowed. There will be no order as to costs, in all the C.R.Ps.