BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/06/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.219 of 1997 and C.M.P.No.2569 of 1997 Ramukkannu .. Appellant Defendant Vs Dharmaraj .. Respondent Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 08.07.1996 in A.S.No.106 of 1995 on the file of the Principal District Judge, Thanjavur, confirming the judgment and decree dated 31.03.1995 in O.S.No.439 of 1993 on the file of the learned District Munsif Court, Thiruvayyaru. !For Appellant ... Mr.V.K.Vijayaraghavan ^For Respondent ... No representation. :JUDGMENT
This second appeal is focussed as against the concurrent findings of both
the Courts below vide judgment and decree dated 08.07.1996 in A.S.No.106 of
1995 on the file of the Principal District Judge, Thanjavur, confirming the
judgment and decree dated 31.03.1995 in O.S.No.439 of 1993 on the file of the
learned District Munsif Court, Thiruvayyaru.
2. The gist and kernel, the nitty-gritty of the facts absolutely necessary
for the disposal of this second appeal would run thus:
The plaintiff filed the suit as against the defendant by describing the
defendant as the tenant under him in view of the plaintiff having leased out the
suit thatched shed during the year 1984 for a monthly rent of Rs.20/-.
Subsequently, the defendant committed default in paying the rent. The defendant
went to the extent of denying the title of the landlord namely the plaintiff and
thereupon, the plaintiff had chosen to file the suit for declaration of his
title and for recovery of possession of the suit property without resorting to
the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, even
though the said Act is very much applicable to Tanjavur Town wherein the suit
property is admittedly situated. Both the Courts below decreed the suit.
3. Being aggrieved by and dissatisfied with the judgments of both the
Courts below, the second appeal has been filed on the following main grounds:
The original suit ought not to have been entertained by the trial Court in
view of the embargo contemplated under the provisions of the Tamil Nadu
Buildings (Lease and Rent Control) Act.
4. Based on the appeal grounds, my learned Predecessor at the time of
admitting the second appeal, framed the following substantial questions of law:
“1. Whether suit filed by the plaintiff-respondent was maintainable, in
view of the provisions of the Rent Control Act?
2. Whether suit as framed by the plaintiff for declaration of title and
possession of suit property is maintainable in the Civil Court without resorting
to the Rent Control Act?
3. Whether the appellate Court was right in rejecting the application
filed by the appellant for additional evidence without there being proper
consideration?”
5. Heard the learned Counsel for the appellant in entirety. There is no
representation on behalf of the respondent.
6. The learned Counsel for the appellant placed reliance on the decision
of the Honourable Apex Court in Devasahayam v. P.Savithramma reported in (2005)
7 Supreme Court Cases 653. An excerpt from it, would run thus:
“22. A suit for eviction under the said Act would lie before a Rent
Controller and not before a civil court. In terms of the proviso appended to
Section 10(1) of the said Act before the parties can pursue their remedies in a
civil court a Rent Controller is required to arrive at a finding as regards the
bona fides or otherwise of the claim of the tenant.
23. Under the provisions of the Transfer of Property Act, a landlord can
evict his tenant only upon service of proper notice as envisaged under Section
106 of the Transfer of Property Act. A lease can be determined by forfeiture
inter alia when the lessee renounces his character as such by setting up a title
in a third person or by claiming title in himself. But even in such a case, the
lessor must give notice in writing to the lessee of his intention to determine
the lease.
24. Distinction between clause (g) and clause (h) of Section 111 is that in
the former the right of forfeiture is exercised while the tenancy is still
subsisting while in a case falling under clause (h) the lease is determined by a
notice to quit.
25. The right of the respondents to forfeit the tenancy, if any, had also
not been exercised and no notice therefor was served upon the appellant.
26. It may be true that, as was submitted by Mr Nageswara Rao, the
predecessors-in-interest of the respondents had filed a suit for eviction before
the Rent Controller on the ground of default on the part of the appellant in
payment of rent as it appears from the statement made by PW 1 that the said suit
was dismissed for default. In this appeal, the respondents should not be allowed
to raise a contention for the first time that only in view of such a statement a
suit for eviction was not pursued. Neither there exists any material in this
behalf nor the court below went into the said question. The consequences
resulting from a suit being dismissed for default must ensue and it must be held
that the question as regards the right of the respondents to evict their tenant
on one or more of the grounds enumerated in Section 10 of the Act must be
determined by the Rent Controller in an appropriate proceeding.
27. In Sheela V.Prahlad Rai Prem Prakash whereupon Mr Nageswara Rao placed
strong reliance, Lahoti, J., as the learned Chief Justice then was, while
construing the provisions of clause (c) of sub-section (1) of Section 12 of the
M.P. Accommodation Control Act, 1961 observed: (SCC p. 384, para 13)
“13. The law as to tenancy being determined by forfeiture by denial of the
lessor’s title or disclaimer of the tenancy has been adopted in India from the
law of England where it originated as a principle in consonance with justice,
equity and good conscience. On enactment of the Transfer of Property Act, 1882,
the same was incorporated into clause (g) of Section 111. So just is the rule
that it has been held applicable even in the areas where the Transfer of
Property Act does not apply. (See: Raja Mohammad Amir Ahmad Khan v. Municipal
Board of Sitapur.) The principle of determination of tenancy by forfeiture
consequent upon denial of the lessor’s title may not be applicable where rent
control legislation intervenes and such legislation while extending protection
to tenants from eviction does not recognise such denial or disclaimer as a
ground for termination of tenancy and eviction of tenant. However, in various
rent control legislations such a ground is recognised and incorporated as a
ground for eviction of tenant either expressly or impliedly by bringing it
within the net of an act injurious to the interest of the landlord on account of
its mischievous content to prejudice adversely and substantially the interest of
the landlord.”
It was further observed:(SCC p.386, para 17)
“17. In our opinion, denial of landlord’s title or disclaimer of tenancy
by tenant is an act which is likely to affect adversely and substantially the
interest of the landlord and hence is a ground for eviction of tenant within the
meaning of clause (c) of sub-section (1) of Section 12 of the M.P.Accommodation
Control Act, 1961. To amount to such denial or disclaimer, as would entail
forfeiture of tenancy rights and incur the liability to be evicted, the tenant
should have renounced his character as tenant and in clear and unequivocal terms
set up title of the landlord in himself or in a third party. A tenant bona fide
calling upon the landlord to prove his ownership or putting the landlord to
proof of his title so as to protect himself (i.e. the tenant) or to earn a
protection made available to him by the rent control law but without disowning
his character of possession over the tenancy premises as tenant cannot be said
to have denied the title of landlord or disclaimed the tenancy. Such an act of
the tenant does not attract applicability of Section 12(1)(c) above said. It is
the intention of the tenant, as culled out from the nature of the plea raised by
him, which is determinative of its vulnerability. …
30. The civil Court’s jurisdiction to entertain a suit for eviction on the
ground of denial of relationship of landlord and tenant could have been invoked
only strictly in terms of the provisions of the said Act wherefor the
requirement of law, as contained in the proviso appended to Section 10(1) of the
Act was to be complied with.”
7. It is crystal clear from the perusal of the aforesaid decision of the
Honourable Apex Court that the original suit filed by the plaintiff in total
violation of Section 10 (1) of the Tamil Nadu Buildings (Lease and Rent Control)
Act, 1960. Section 10(1) of the said Act, is extracted hereunder for ready
reference:
“10. Eviction of tenants.- (1) 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:
Provided that nothing contained in the said Sections, shall apply to a
tenant whose landlord is the Government:
Provided further that where 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 forfeiture of the lease or that the claim is unfounded.”
(emphasis supplied)
8. Both the Courts below simply misdirected themselves on the mere ground
that the defendant denied the title of the landlord. Whatever might be the plea
of the defendant, the Courts below should have looked into the averments in the
plaint which are to the effect that the defendant entered into the premises as
tenant under him. In such a case, as per Section 10 (1) of the Act, the Rent
Controller was the competent authority to decide whether the denial of title was
a bona fide one or not. In fact, Ex.A.5 is the plaintiff’s pre-suit notice
issued to the defendant which does not disclose that the plaintiff invoked
section 111(g) of the Transfer of Property Act and thereby ushered in the
concept ‘forfeiture of lease’, in view of the plea of denial of title taken by
the defendant.
9. Hence, in these circumstances, no more elaboration in this regard is
required. The judgments and decree of both the Courts below are liable to be
set aside. Consequently, the original suit is liable to be dismissed.
10. In the result, the second appeal is allowed, setting aside the
judgment and decree dated 08.07.1996 in A.S.No.106 of 1995 on the file of the
Principal District Judge, Thanjavur and the judgment and decree dated 31.03.1995
in O.S.No.439 of 1993 on the file of the learned District Munsif Court,
Thiruvayyaru and ultimately, the original suit is dismissed. Consequently,
C.M.P.No.2569 of 1997 is also closed. However, it is open for the plaintiff to
approach the Rent Controller as per law if at all he chooses to seek his remedy.
In the facts and circumstances of this case, there is no order as to costs.
To
1. The Principal District Judge, Thanjavur
2. The District Munsif Court, Thiruvayyaru.