IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.03.2010
Coram
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
C.R.P.(NPD) No.383 of 1996
1.Sakunthala
2.Savithri
3.G.G.Girija
4.Karthikeyan ... Petitioners
Vs.
1.G.S.Ramanathan (deceased)
2.G.S.Subramaniam
3.G.S.Govinda Rajulu (deceased)
4.S.Gubendran
5.Krishnamoorthy
6.Rajalakshmi
7.B.Annapoorani
8.R.Susila
9.Rukma Bai
10.S.Vimala
11.K.Jayalakshmi
12.R.Murugaprasad
13.Jagadeesan
14.R.Mahalakshmi (deceased)
15.B.Jeyashree
16.J.Rani
17.Umarani
18.Ganesan
19.Uma
20.Krishnamurthy
21.K.Durgasaran ... Respondents
(Respondents 12 to 16 brought
on records as Lrs of the deceased
first respondent vide order made
of Court dated 2.12.2006 and made in
C.M.P.No.10877 of 2006)
(Respondents 17 to 19 brought
on records as Lrs of the deceased
3rd respondent vide order made
of Court dated 03.03.2004 and made in
C.M.P.No.13075 of 2002)
Civil Revision petition is filed to set aside the Decree and Judgment dated 6.12.1995 passed in R.C.A.No.2 of 1994 on the file of the Rent Control Authority (Sub-Court), Gobichettipalayam, Reversing the Decree and Judgment dated 12.9.1994 and 4.9.1995 passed in R.C.O.P.No.9 of 1990 on the file of the Rent Controller (District Munsif), Gobichettipalayam.
For petitioners : Mr.R.J.Doraisamy
For Respondents
2, 4 to 13, and
15 to 19 : Mr.N.Damodaran
For Respondents
20 and 21 : Not ready in notice
O R D E R
The revision petitioners/respondents 1 to 4 have filed this civil revision petition as against the order dated 6.12.1995 in R.C.A.No.2/94 passed by the Learned Rent Control Appellate Authority viz; Learned Subordinate Judge, Gobichettipalayam, in allowing the Rent Control Appeal by setting aside the order dated 12.09.1994 in R.C.O.P.No.9 of 1990 passed by the Learned Rent Controller,viz; Learned District Munsif, Gobichettipalayam.
2.The learned Appellate Authority viz., learned Subordinate Judge, Gobichettipalayam while passing orders in R.C.A.No.2 of 1994 on 6.09.1995 has held that there was a relationship of landlord and tenant between Sambasiva Chettiar and Gopal Chettiar and further held that the tenant’s denial of lanlord’s right was not bona fide and came to the conclusion that the Gopal Chettiar was not a person who deliberately failed to tender his monthly rent and also held that the petition mentioned property was required for own use of the landlord and resultantly allowed the appeal without costs by granting two months time to hand over the possession.
3.The Rent Controller viz; the District Munsif, Gobichettipalayam while passing orders in R.C.O.P.No.9 of 1990 filed by the respondents/landlords came to the conclusion that in regard to the petition mentioned property, it was not established that there was a relationship of landlord and tenant between the parties and consequently dismissed the Original Petition without costs.
4.The learned counsel for revision petitioners/tenants urges before this Court that the order of the First Appellate Authority in R.C.A.No.2 of 1994 dated 6.12.1995 in reversing the order of the learned Rent Controller passed in R.C.O.P.No.9 of 1990 dated 12.09.1994 is contrary to law, weight of evidence, probabilities of the case and further, the First Appellate Authority committed an error in arriving at the conclusion that the petition mentioned building was required for owner’s occupation by placing reliance on the report of the Commissioner in I.A.No.182 of 1974 in O.S.No.468 of 1971 to which the revision petitioners are not parties. Further, the Landlords had not filed even a single rent receipt or kist receipt etc. to prove the tenancy and they had not discharged their burden of proving the relationship as Landlord and Tenant between the parties. Moreover, the house in which the respondents reside was very much sufficiently a big one which could accommodate more than four families and that apart, there was no rental agreement, no rental receipts and in this regard there was absence of any tangible evidence, and these had not been adverted to or appreciated by the First Appellate Authority in a proper perspective and therefore, prays for allowing the civil revision petition in the interest of justice.
5.It is useful for this Court to refer to main Rent Control Original Petition No.9 of 1990 filed by the deceased landlord G.S.Sambasiva Chettiar as petitioner under Section (2) (i) and Section 10(3)(a)(i)of Tamil Nadu Buildings (Lease and Rent Control) Act wherein it was mentioned among other things that the petition mentioned building originally belonged to the family of the original petitioner consisting of himself and his brothers and that it was a joint family property. Subsequently, one of the brother viz; Bala Krishna Chettiar filed the suit for partition of the joint family property in O.S.No.205 of 1982 against the original petitioner and others. In the said suit after a prelilminary decree, a final decree was passed in I.A.No.939 of 1982 on 26.04.1988 and that the petiton mentioned premises was allotted to the original revision petitioner and after the final decree, the orginal petitioner was the absolute owner of the petition mentioned premises.
6.Also, in the original Rent Control Petition it was averred that the original tenant Gopal Chettiar viz; (husband and father of the revision petitioners 1 to 4) entered into an oral agreement in respect of the petition mentioned building with the elder brother of the deceased landlord Sambasiva Chettiar viz; V.S.Gopal Krishna Chettiar as he was the then joint family Manager at the rent of Rs.15/- p.m and the prevailing rent now was Rs.150/- p.m for the last four years and also that the tenant viz; deceased Gopal Chettiar had not paid rent for the last 35 months, etc.
7.At this stage, a perusal of the petition averments do point out that the original landlord/petitioner (under Rent Control Proceedings) demanded the rent personally after explaining the final decree proceedings from the deceased tenant Gopal Chettiar and also it was explained to the tenant that the original petitioner’s married three sons were not having their own house and they were residing in rental house and that vacant possession ought to be handed over to him for the occupation of his sons, but the tenant had not vacated the petition mentioned premises and therefore, a notice dated 16.4.1990 was issued to the original tenant to vacate the petition mentioned building but the tenant came forward with a reply of false allegations and in fact in the reply it was mentioned by the tenant that the premises was given to him free of rent and that he worked freely in the said joint family business.
8.The plea of the respondents/landlords is that the deceased tenant Gopal Chettiar was paid only for the work done by him and he was paying the rent for the petition mentioned building till three years back and he was allowed to reside in he house only as a tenant and not otherwise.
9.It is pertinent for this Court to make a mention that the original tenant Gopal Chettiar in Ex.A.2 reply notice dated 3.5.1990 had taken a plea of perfected title to the petition mentioned premises by way of adverse possession but such a plea was not accepted by the respondents/landlords. Indeed, in the petition it was averred by the deceased landlord Sambasiva Chettiar that the original tenant Gopal Chettiar was not a bona fide person and he had not paid the rental dues and thereby committed wilful default.
10.In the counter, the original tenant Gopal Chettiar (husband and father of revision petitioners 1 to 4) had taken a specific plea that he had not taken the petition mentioned building on a monthly rent and that he had not paid any amount as rent in respect of the petition mentioned building and therefore, there was no necessity for him to pay the rent and there was no oral rent agreement and it was not correct to state that he had not paid the monthly rent for 35 months etc and for the petition mentioned property, the deceased landlord/petitioner (in RCOP petition) was not the owner and the alleged monthly rent of Rs.50/- mentioned in the petition and furhter averment that the original landlord was in receipt of monthly rent on Rs.150/- for the past four years were not correct.
11.In the counter, it was also pleaded by the original tenant that he was employed in the joint family business of the respondents and he only improved the said business and also he worked at Masanakudi at Ooty, in the place where the respondents took an explosive contract and he worked without any return and no salary was paid by the joint family members for the work turned out by him. He was treated as one of the members of the joint family of the respondents and they only saw a girl for his marriage and conducted his marriage in the year 1954. For his work as salary, the respondents gave him the petition mentioned house for his residence and from that date, he resided in the said house along with his wife and children as his own house and till 1961 he worked in the joint family textile shop, explosive shop and with the help of the deceased petitioner’s elder brother Gopal Krishna Chettiar he joined in Karur Vysya Bank at Gobichettipalayam Branch as a Class IV employee and worked till the year 1978.
12.The core contention of the deceased original tenant and also the present revision petitioners is that there was no relationship of landlord and tenant between the parties to the Rent Control Proceedings and that inasmuch as the deceased the original tenant was not a tenant, the Rent Control Original Petition filed by the original landlords was not maintainable in law and therefore, the same has to be dismissed in limini.
13.In the counter filed by the third revision petitioner/third respondent before the Learned Rent Controller, it was mentioned that herself, 1 and 4 revision petitioners were residing in the petition mentioned premises and that the Door No. of the petition mentioned premises was 117, Vaikkal Road and in the petition it was wrongly mentioned that they were residing at Door No.177 and in Door No.177 they were not residing and they were residing only at Door No.117.
14.Before the learned Rent Controller, one Ramanathan (deceased first respondent) was examined as P.W.1 and he deposed that the revision petitioners were residing in the petition mentioned premises as tenants for the past 39 years and he does not know whether there was any rent chit between Gopal Krishna Chettiar and the first respondent and in the suit in O.S.No.202 of 1982, the tenants in the house were not added as parties and as per the final decree passed in the said suit, the plaintiffs, the first defendant and his father were to take joint action. It is his further evidence that his father alone filed the Rent Control Original Petition and at the time of filing the Rent Control Original Petition, Nagamani Chettiar was alive and he had no reason as to why the first respondent in Rent Control Original Petition was added as a party in O.S.No.205 of 1982. The tenant Gopal Chettiar had not worked in the explosive shop at Pisrangkudi and further he had not stayed in their house but stayed separately but does not know the place where he stayed separately and also that he was paid the monthly salary and in the register, his signature was obtained.
15.The evidence of P.W.1 is to the effect that in the petition there was no mention about the payment of monthly rent by the deceased tenant Gopal Chettiar and that the Salary Register was not produced before the Court and since the petition mentioned property was shown as gift to the deceased first respondent viz; (husband and father of the revision petitioners) and therefore, they had not objected to the repair made by the deceased tenant Gopal Chettiar and added further, he was not in possession of rental accoutns and he does not know as to what amount he received as rent from the deceased Gopal Chettiar.
16.Also, P.W.2 Janarthanan in his evidence would depose that he was not aware of what date the Gopal Chettiar took possession and the said Gopal Chettiar looked after the business of the Gopala Krishna Chettiar by staying in the house and he was not aware on what basis Gopal Chettiar was given a house and the house was given by three persons to Gopal Chettiar.
17.It is the evidence of P.W.3 Sarathamani that she was not aware in what capacity the said Gopal Chettiar was residing in the house and in Ex.B.25 the name of the house owner was mentioned as Gopal Chettiar.
18.R.W.1 in his evidence has stated (3rd Revision petitioner) that her father Gopal Chettiar was brought by Bala
Gopala Krishna Chettiar Gopichettipalayam to look after the textile and explosive shops for which, her father was not paid any salary and her father took food in the family of Bala Gopala Krishan Chettiar who was the Manager of the family and Bala Gopala Krishan Chettiar only performed her father’s marriage and that her father was given petition mentioned property by means of gift and therefore they were enjoying the petition mentioned property in their ownership capacity. Moreover, it is the categorical evidence of P.W.3 that Gopala Krishna Chettiar allowed her father to reside in the petition mentioned and the said Gopala Krishna Chettiar only gifted the petition mentioned premises to her father and she was aware of the said gift and there was no record to show that her father was living with Gopala Krishna Chettiar from the year 1952 to 1954 and that she had filed house tax receipt from the year 1969 but no house tax receipts from the year 1954 to 1968 were filed by her.
19.The learned counsel appearing for the respondents 2, 4 to 13 and 15 to 19 submits that the denial of title by the tenants was not bona fide and therefore, the non-payment of rent by them proved the case of the respondents/landlords that there was a wilful default in payment committed by them to lend support to the said contention, he relies on the decision of this Court SURAJMAL SOWCAR AND SONS, REPRESENTED BY ITS ADMINISTRATOR, PREMCHAND VS. AROKIA MARY (1987 (2)MLJ 50) at page 51 whereinit is held as follows:
“In the Instant case, the tenant claims the very ownership of the superstructure. The payment of the property tax to the Corporation and he ground rent to the temple authorities by the tenant could only be taken as payment by an occupier made on behalf of the landlord. Therefore it is to be held that the petitioner is the landlord of the premises and the respondent is its tenant. (para8)
Regarding the objection as to maintainability of the petition for eviction on ability of the petition for eviction on the ground that the partnership firm is the petitioner while the petition for eviction has been filed only by one of the partners and as such the petition is not maintainable by virtue of Sec.10(8) of the Act 38 of 1970, it is not possible to accept the contention of the tenant. (para10)
In this case the denial of title by the tenant has been found to be not bona fide. Therefore non-payment of rent by the tenant amounts to wilful default. (para9)
20.He also cites the decision of this Court K.SAMBANDAN ALIAS BABU VS. S.KRISHNAVENI (2001 (2) CTC 321) at page 329 wherein at paragraph 16 and 17 it is observed thus:
“The fact remains that the respondent herein has come forward with a specific case that the revision petitioner has not paid rent for the demised premises with effect from 1.11.1989 till January, 1991. The revision petitoner admits that he has not paid rent for the abovesaid period on the ground that he is not liable to pay rent as there is no relationship of landlord and tenant between the respondent herein and the revision petitioner. The Courts below have concurrently held that there is relationship of landlord and tenant between the respondent and the revision petioner and that the revision petitioner has committed wilful default in payment of rent. This Court also has concurred with the findings of the Courts below that here is relationship of landlord and tenant between the respondent herein and the revision petitioner. Therefore, the revision petitioner is bound to pay rent at the rate of Rs.210 per month for the premises under his occupation, to respondent herein. The conduct of the revision petitoner in not paying the rent to the respondent for the occupation of the premises owned by the respondent herein by denying of the respondent to the said premisises shows the supine indifference on the part of the revisionpetitoner herein in payment of rent.
17. The Apex Court, in S.Thangappan,V.P.Padmavathay, 2000 (1) L.W 782, has held that if the denial of landlord’s title by the tenant is not bona fide the default in payment of rent to the landlord by the tenant is wilful. The principle laid down in the above case squarely applies to the facts and circumstances of the case on hand and, therefore, the non-payment of rent by the revision petitioner for the period mentioned above will certainly amount to wilful default.”
21.It is to be pointed out that if any civil suit is filed by a party for recovery of possession the same is not affected by the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act in the considered opinion of this Court. It is true that the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 proceeds on the footing that there exists a relationship of landlord and tenant and if the relationship is refuted, the authorities under the Act have to determine on the issue because a simple denial of the relationship cannot oust the jurisdiction of the tribunals under Act where the dispute in regard to the relationship of land lord was not decided, then it can be decided by the Rent Controller. This is incidental question to be decided by him, while deciding question as to whether the ground for eviction has been established, of course, the issue of title to the property is alien for considertion by the Rent Controller.
22.As a matter of fact, the question of relationship of landlord and tenant is very much material. Once it is established that the landlord and the tenant relationship exists, then the principle of Estoppel under Section 16 of the Indian Evidence Act will apply and the tenant cannot dispute the title of the petitioner. In short, the denial is not a bona fide one as opined by this Court. The Civil Suit is maintainable only when the Rent Controller comes to decision that denial of title is mala fide. In the case of denial of title of the landlord, the tenant himself is conferred only by a limited right provided the denial is bona fide in character.
23.One cannot ignore an important fact that a person claiming to be a landlord, may sue the alleged tenant for possession of a building on the grounds mentioned in the Rent Control Act. Such a suit will have to be filed in the Court of Small Causes (Rent Control,) which has the exclusive jurisdiction.
24.Generally speaking, it is the duty of the tenant to pay the rent regularly every month without expecting any demand from the Landlord. As a matter of fact, obligation to pay the rent is not only contractual, but also a statutory. In order to prove the case of wilful default, the Landlord must establish an important fact that the tender of rent was made with the outright knowledge that the tenant was making the default and in that context there was an element of MENS REA in it and he was totally indifferent and there was an overt act on his part.
25.Be that as it may, the term ‘Landlord’ as per definition of Section 2(6) of the Act is quite comprehensive enough to take any persons who are not strictly Landlords under General Law.
26.In so far as the Rent Control applications are concerned, it is not the ownership of the property that enables a party to project an application for eviction, but when a party comes within the purview of ‘landlords’ as per Section 2 (6) of the Act, this is quite competent to enough to maintain the petition for eviction in the considered opinion of this Court. As a matter of fact, the definition of landlord and tenant as per Section 2(6) and Section 2(8) of the Act are symmetrical and complimentary one. The definition ‘landlord’ is an inclusive mention and does not actually define the term ‘landlord’. As such, the inclusive definition adds to the normal concept of landlord, certain other categorics of persons also.
27.The term ‘Landlord’ under the Act will include the co-owner as much as the sole owner and therefore, the Rent Control Original Petition filed by the co-owner is perfectly maintainable in law.
28.Coming to the aspect of tenant as per section 2(8) of the Act it includes wide terms to include any one by whom or whose account rent is payable for a building and even includes the surviving spouse or any son or daughter any persons continuing in possession after the termination of tenancy in his favour. Where the relationship of landlord and tenant exists between the parties depend on where the parties intended to create a tenancy and such intention has to be gathered from the facts and circumstances of the case.
29.In this connection, this Court points out that the term of “Rent” has not been defined under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960. Therefore, the ordinary dictionary meaning will have to be taken note of. Rent is a periodical payment of specific action. As long as the payment is linked with the right of occupation of the premises, the nomenclature given to the payment should make no difference in principle and the totality of such payment must in the eye of the parties and in the eye of law be regarded as rent. In ordinary parlance, the term ‘rent’ refers to an return in money or
kind for enjoyment of specific property held by the person from or under another. The rent visualised in the Section speaks of only the agreed rate of rent and not the fair rent. As per Section 3(1) of the Act rent means actual rent paid or payable and not the fair rent which has not been determined.
30.As far as the present case is concerned, all the co-owners need not join in the eviction petition and in law, it is suffice that one co-owner can file an eviction petition provided he is entitled to collect the rent. The tenant recognises a member of the family or landlord and pays rent to him, such member cannot be considered to be an agent and therefore, the petition filed by him is maintainable in the considered opinion of this Court.
31.A perusal of Ex.A.5, the report filed by the Commissioner in I.A.No.182 of 1974 in O.S.No. 468 of 1971 on the file of the learned Subordinate Judge, Erode shows that Door No.85 in Vaikkal Street is occupied by a tenant. It transpires from I.A.No.932 of 1982 in O.S.No.205 1982 (Compensation petition filed under Order 23 Rule 3 of Civil Procedure Code) for passing of final decree and the same was entered into between the plaintiffs 5 to 16 and 18 to 22 and defendants 1 and 2 and clause 4 of the compromise petition refers to the items found in 1st and 2nd suit schedule and the house and lands mentioned in Commissioner’s report in the hands of tenants, lease holders and defendants 1 and 2 were to take action to evict them as per law.
32.In the case on hand, there was no proof much less satisfactory proof as to whether the deceased Gopal Chettiar (the husband and father of revision petitioners) had paid rent to the original landlord and rent receipts to prove the factum of rent were also not filed before the learned Rent Controller in the Rent Control Original Petition proceedings in the main petition. Even after the death of the original tenant Gopal Chettiar from his heirs also viz; the revision petitioners no rent receipts were produced to show that the revision petitioners tendered rent to the respondents/landlords. Notwithstanding the fact that the original tenant was not shown as a party in O.S.No.205 of 1982 and later, his non inclusion in I.A.No.939 of 1982, yet the tenor of the final decree proceedings will not only bind the deceased original tenant Gopal Chettiar, but also his legal heirs viz; revision petitioners as opined by this Court. Merely because in Ex.A.5, the Commissioner filed a report in I.A.No.182 of 1974 in O.S.No.468 of 1971 on the file of the learned Subordinate Judge, Erode, there was a mention that Door No.85 in Vaikkal Street was occupied by a tenant, yet in law, the burden is on the respondents/landlords to establish that there exists a relationship of landlord and tenant between the parties, but in the present case, such feature was lacking on the surface in the considered opinion of this Court, but also the evidence of P.W.2 was to the effect that the original tenant Gopal Chettiar was given in possession of the house by three persons Gopala Krishna Chettiar, Sambasiva Chettiar and Bala Venkatarama Chettiar) and he does not know on what capacity, it was given to Gopal Chettiar.
33.To put it precisely, in the present case though the original tenant/respondent (in the RCOP petition) was residing in the petition mentioned premises along with his family from the year 1954 no single accetable document was ever produced before the learned Rent Controller to show that he paid rent to the respondents/landlords and in short, the plea in the original petition that the original tenant had not paid 35 months rent was not established by the respondents/landlords to the subjective satisfaction of this Court and therefore, their plea in regard to the non payment of rent fails.
34.That apart, also there was no convincing proof that from what date the monthly rent of Rs.150/- was collected from the tenant. But on the side of the respondents/landlords, it was mentioned generally that the monthly rent for the four years was at Rs.150/-.
35.Curiously, the First Appellate Authority had come to the conclusion that the petition mentioned property was allotted to Sambasiva Chettiar in O.S.No.205 of 1982 and therefore, there was a relationship of landlord and tenant between himself and the said Gopal Chettiar. Admittedly, no rent receipt was ever filed before the learned Rent Controller in Rent Control Original Petition proceedings to show that the said Gopal Chettiar remitted the rent to the landlord Sambasiva Chettiar.
36.There is no dispute in regard to the principle of law that if a party is allotted a property as per the final decree in Court proceedings, he is entitled to recover possession of the same in the hands of a tenant only by means of legal proceedings before appropriate forum and as a matter of fact, in the present case though the petition mentioned property fell to the share of Sambasiva Chettiar, yet there was no convincing proof that the deceased Gopal Chettiar paid the monthly rent to Sambasiva Chettiar and that there was wilful default committed by him for a period of 35 months.
37.Therefore, this Court is not in agreement with the view taken by the First Appellate Authority that there was a relationship of landlord and tenant between Sambasiva Chettiar and Gopal Chettiar in so far as the petition mentioned property was concerned. Inasmuch as the respondents/tenants had failed to establish that there was a relationship of landlord and tenant in the present case between the parties, this Court opines that it is unnecessary for it to go into the aspect on what capacity the revision petitioners are in occupation of the petition mentioned property and since they plead that it was gifted to their father,
this Court is of the considered view that the proper forum to adjudicate upon the controversy in this regard is only a Civil Court and as such the denial of title by the revision petitioners is bona fide for the present and suffice it for this Court to make a mention that it is otiose to go into the issue whether the petition mentioned property was required for own use of the Respondents/Landlords. For the foregoing reasons and on consideration of the entire gamut of the matter in a cumulative fashion this Court comes to an inescapable conclusion that the conclusion arrived at by the First Appellate Authority in allowing the Rent Contorol Appeal without costs per se is unsustainable on legal plane and resultantly, this Court allows the civil revision petition to prevent an aberration of justice.
38.In the result, the Civil Revision Petition is allowed to leave the parties to bear their own costs. Consequently, the order dated 6.12.1995 in R.C.A.No.2 of 1994 passed by the Learned Appellate Authority viz; the Subordinate Judge, Gobichettipalayam is set aside by this Court for the reasons assigned in this revision. As a logical corollary, the order of the learned Rent Controller, viz; the Learned District Munsif, Gobichettipalayam, dated 12.9.1994 in R.C.O.P.No.9 of 1990 in dismissing the Rent Control Original Petition is restored.
39.It is made clear that the dismissal of the civil revision petition will not preclude the respondents/landlords in initiating necessary recovery of possession proceedings in respect of the subject matter of the property against the revision petitioners before the appropriate civil forum in the manner known to law, if so advised.
17.03.2010
Index:Yes/No
Internet:Yes/No
cla
To
1.The Rent Control Appellate Authority,
(Subordinate Judge),
Gobuchettipalayam.
2.The Rent Controller,
(District Munsif),
Gobichettipalayam.
M.VENUGOPAL, J.
Cla
C.R.P.(NPD)No.383 of 1996
17.03.2010
PRE DELIVERY ORDER IN
C.R.P.(NPD) No.383 of 1996
To
THE HONOURABLE MR. JUSTICE M.VENUGOPAL
Most Respectfully Submitted
by
(C.LATHA)