{"id":137502,"date":"2004-04-05T00:00:00","date_gmt":"2004-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/george-thomas-vs-t-selvapathy-on-5-april-2004"},"modified":"2018-11-01T07:09:51","modified_gmt":"2018-11-01T01:39:51","slug":"george-thomas-vs-t-selvapathy-on-5-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/george-thomas-vs-t-selvapathy-on-5-april-2004","title":{"rendered":"George Thomas vs T.Selvapathy on 5 April, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
George Thomas vs T.Selvapathy on 5 April, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 05\/04\/2004\n\nCoram\n\nThe Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN\n\nCivil Revision Petition No.2280 of 1998\n\n1.George Thomas.\n2.Arokianathan.\n3.Edwin.\n4.Tmt.Jeslee.\n5.Mrs.Rita.\n6.Mrs.Flora.\n7.Mrs.Asuntha Mary.\n8.Mrs.Salina Mary.\n9.Fathima.                                  ... Petitioners.\n\n-Vs-\n\n1.T.Selvapathy.\n2.Dhoras.                                   ... Respondents.\n\n        Civil Revision Petition filed under  Section  25  of  the  Tamil  Nadu\nBuildings  (Lease and Rent Control) Act, 1960 against the judgement and decree\ndated 17.3.1998 and made in R.C.A.No.924 of 1994  on  the  file  of  the  Rent\nControl   Appellate  Authority  (VIII  Judge,  Small  Causes  Court),  Madras,\nreversing  the  order  and  decretal   order   dated   31.8.1994   passed   in\nR.C.O.P.No.2877  of 1992 on the file of the Rent Controller ( XII Judge, Small\nCauses Court), Madras.\n\n\n!For petitioners :  Mr.A.Muthukumar for Mrs.K.M.  Nalinishree\n\n^For respondents :  Mr.Robert Chelliah for R1\n\n:O R D E R\n<\/pre>\n
        The revision petitioners are the  unsuccessful  landlords  before  the
\nRent Control Appellate Authority.\n<\/p>\n
        2.   The  revision  petitioners along with S.Rosemary alias Vasuki and
\nthe second respondent herein filed the Rent Control Original Petition  seeking
\neviction  of  the  first  respondent  herein  from  the  petition  residential
\npremises, viz., thatched hut bearing door No.3, Narayana Maistry First  Street
\n(now   Second   Street),   Villivakkam,  Madras-49,  under  Section  10(2)(i),
\n10(3)(a)(i) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control
\nAct, 1960 (hereinafter referred to as “the  Act”)  on  the  ground  of  wilful
\ndefault in payment of rent, that the petition residential premises is required
\nbona fide for own use and occupation and on the ground of denial of title.\n<\/p>\n
        3.   It  is  stated  in  the  Rent  Control Original Petition that the
\nrevision petitioners and two others are the  owners  of  the  property  having
\ninherited  the  same  from late C.Thomas alias C.Kothandan, the husband of the
\nfirst petitioner in the Rent Control Original Petition, viz., S.Rosemary alias
\nVasuki and the father of the petitioners 2 to 11 in the Rent Control  Original
\nPetition.   The  petition  premises,  which  is a hut, constructed by the said
\nC.Thomas alias C.Kothandan was let out to the first respondent herein  and  on
\nhis  death  intestate  on  9.4.1988,  the  revision petitioners and two others
\nsucceeded to the petition property.    The  first  respondent  herein  was  in
\narrears  of  rent for two months, viz., from February, 1988 at the time of the
\ndeath of C.Thomas alias C.Kothandan, and the first respondent herein failed to
\npay the rent wilfully, despite the demand made by the revision petitioners and
\ntwo others even after issuing notice dated 11.9.1992.  In  the  reply  notice,
\nthe  first  respondent herein denied the title of the revision petitioners and
\ntwo others.  The petition premises is also required for own use and occupation
\nsince the place where the revision petitioners and two others are residing  is
\nnot sufficient.  The revision petitioners and two others have claimed that the
\nfirst respondent herein has committed default in payment of rent wilfully from
\nFebruary,  1988  till September, 1992 to the tune of Rs.4,050\/- at the rate of
\nRs.70\/- per month.  The first respondent herein is also liable for eviction on
\nthe ground of denial of  title  of  the  petition  premises  to  the  revision
\npetitioners and two others.\n<\/p>\n
        4.   The  Rent  Control  Original  Petition was opposed in the counter
\ndenying  the  relationship  of  landlords  and  tenant  between  the  revision
\npetitioners and  two  others  and  the first respondent herein.  It is further
\nstated that it is  only  the  first  respondent  herein  who  constructed  the
\nsuperstructure on  his  own  plot.    There  was  no  necessity  for the first
\nrespondent herein to pay rent in respect of the  premises  owned  by  him  and
\ntherefore  no default much-less wilful default committed in payment of rent as
\nclaimed by the revision petitioners and two others.\n<\/p>\n
        5.  Before the Rent Controller,  the  third  petitioner  in  the  Rent
\nControl  Original  Petition  was  examined  as  P.W.1 and Exs.P-1 to P-14 were
\nmarked on the side of the revision petitioners and the first respondent herein
\nexamined himself as R.W.1 and Ex.R-1 was marked  on  the  side  of  the  first
\nrespondent herein.   The learned Rent Controller considering such evidence let
\nin on either side ordered eviction on all the  three  grounds,  viz.,  on  the
\nground  of  wilful  default  in  payment of rent as claimed, that the petition
\nresidential premises is required bona fide for own use and occupation  by  the
\nrevision  petitioners  and  two  others  and  that  the denial of title of the
\nrevision petitioners and two others to the  petition  premises  by  the  first
\nrespondent herein is without bona fide.\n<\/p>\n
        6.   The first respondent herein filed R.C.A.No.924 of 1994 and during
\nthe pendency of the said appeal, the revision petitioners and two others filed
\nM.P.No.419 of 1997 under section 11(4) of the Act and the learned Rent Control
\nAppellate Authority allowed the said petition on 18.9.1997  that  inasmuch  as
\nthe  first  respondent herein denied the title, it is just and proper to order
\nfor deposit of the arrears of rent in the Court at the  rate  of  Rs.75\/-  per
\nmonth from February, 1988 to 31.8.1997 (115 months) totalling to Rs.8,625\/- on
\nor  before 4.1 0.1997, failing which the petition will be ordered stopping all
\nfurther proceedings.  The  order  was  challenged  in  this  Court  in  C.R.P.
\nNo.3405  of  1997  and  this Court allowed the above revision and directed the
\nlearned Rent Control Appellate Authority to dispose the R.C.A.No.924  of  1994
\nafresh  within  4  weeks  from  the date of receipt of the order of this Court
\ndated 29.1.1998.  It appears, the first respondent herein, who filed the  said
\nCivil  Revision  Petition,  paid Rs.8,925\/- on 29.1.1998 and the same has been
\nacknowledged  by  the  learned  counsel  for  the  respondents  in  the   said
\nC.R.P.No.3405 of  1997,  viz.,  the  revision petitioners herein.  The learned
\nRent Control Appellate Authority after such direction of  this  Court  in  the
\nsaid  C.R.P.No.3405  of  199  7, allowed the R.C.A.No.924 of 1994 filed by the
\nfirst respondent herein that the denial of title of the  revision  petitioners
\nand  two  others  by  the first respondent herein is bona fide and as such the
\nrequirement of the petition premises for own use  and  occupation  is  without
\nbona  fide  and  in the said circumstances the first respondent herein has not
\ncommitted wilful default in payment of rent as  claimed.    The  learned  Rent
\nControl Appellate Authority also allowed M.P.Nos.84, 8 5 and 127 of 1998 filed
\nby  the  first respondent herein to receive additional documents in the appeal
\nand marked the documents filed along with the said  petitions  as  Exs.R-2  to
\nR-4.   The  judgment  of the learned Rent Control Appellate Authority is under
\nchallenge in this Civil Revision Petition.\n<\/p>\n
        7.  The revision petitioners filed C.M.P.No.9773 of  2001  to  receive
\nfour  documents  as  additional  evidence,  viz.,  the xerox copy of plaint in
\nO.S.No.6832 of 1994 on the file of the II Assistant Judge, City  Civil  Court,
\nMadras,  filed  on  6.9.1994 by the first respondent herein, the xerox copy of
\nthe written statement in the above suit  filed  on  5  .8.1996  by  the  third
\ndefendant  in  that  suit,  viz.,  the  third  revision petitioner herein, the
\ncertified copy of judgment dated 10.12.1998, which, it appears, was  dismissed
\nfor  default and the certified copy of the decree dated 10.12.1998 made in the
\nabove suit and the C.M.P.  No.9773 of 2001 was ordered as per  order  of  this
\nCourt dated 10.2.2004 and marked the above documents as Exs.P-15 to P-18.\n<\/p>\n
        8.  The learned counsel for the revision petitioners contended that as
\nper  Exs.P-2  to  P-10, the revision petitioners have proved that the petition
\npremises, thatched hut, is originally belonged to C.Thomas alias  C.Kothandan,
\nthe  father  of  the  revision  petitioners  and  on  his  death, the revision
\npetitioners have become the owners of the petition premises and that the first
\nrespondent herein became a tenant under the said  C.Thomas  alias  C.Kothandan
\nand  even  during  the  life  time  of  C.Thomas  alias C.Kothandan, the first
\nrespondent herein failed to pay the rent and after the death of C.Thomas alias
\nC.Kothandan on 9.4.1998 also the first respondent  has  committed  default  in
\npayment  of rent wilfully from February, 1988 till September, 1988 at the rate
\nof Rs.75\/- per month.\n<\/p>\n
        9.  The learned counsel for the revision petitioners pointed out  that
\nthough  in  the reply notice Ex.P-14 dated 26.9.1992, a stand was taken by the
\nfirst respondent herein that he is the owner  of  the  petition  premises  and
\nenjoying  the  same for more than 20 years on his own, in the counter filed on
\n16.4.1993 in the  R.C.O.P.No.2877  of  1992,  it  is  stated  that  the  first
\nrespondent herein put up superstructure on his own plot.  The first respondent
\nherein  as R.W.1 in his evidence has taken definite stand that the site of the
\npremises was leased out to his father R.C.Dhanapal by Govindasamy and his wife
\nMarriammal for which a rental agreement was also executed under  Ex.R-1  dated
\n1.1.1 964.\n<\/p>\n
        10.  Further, the learned counsel for the revision petitioners pointed
\nout  the  suit O.S.No.6832 of 1994 was filed by the first respondent herein on
\n6.9.1994 against the some of the revision petitioners.  The xerox copy of  the
\nplaint  has  been marked as Ex.P-15 as per order this Court dated 10.2.2004 in
\nC.M.P.No.9773 of 2001.  In Ex.P-15, it  is  stated  by  the  first  respondent
\nherein  that  he  is  in possession and enjoyment of the petition premises for
\nmore than 40 years and the superstructure of the house was constructed by him,
\nwithout furnishing details as to how he became the owner of the plot in  which
\naccording  to  him he put up superstructure and the said suit itself was filed
\n6.9.1994 i.e.  immediately after the dismissal of R.C.O.P.No.2877  of  199  2,
\nsubject matter  of  this revision petition, on 31.8.1994.  The learned counsel
\nfor the revision petitioners further argued that the first  respondent  herein
\nallowed the  said  suit  dismissed  for  default  on 10 .12.1998.  Further the
\nlearned counsel submitted that though the first respondent herein  denied  the
\ntitle  of the revision petitioners to the petition premises, he filed the suit
\nO.S.No.6832 of 1994 only for permanent injunction that his  possession  should
\nnot be disturbed and without seeking declaration.  Therefore, according to the
\nlearned  counsel  for  the  revision  petitioners,  inasmuch  as  the revision
\npetitioners have proved that the petition premises originally belonged  to  C.
\nThomas  alias  C.Kothandan,  the  father of the revision petitioners, in which
\nadmittedly, the first respondent herein is in possession and in  view  of  the
\ndefence taken by the first respondent herein that his father Dhanapal became a
\ntenant  in  respect  of the site under one Govindasamy and his wife Marriammal
\nunder Ex.R-1 and in which his father had put up the petition thatched hut  and
\nthe same has not been proved, the first respondent herein, is to be evicted on
\nthe  ground of denial of title and that he has committed default in payment of
\nrent from February, 1998 till the date of filing of the Rent Control  Original
\npetition  and  also  the  requirement of the petition premises for own use and
\noccupation by the revision petitioners is bona  fide,  in  that  the  adjacent
\npremises in which they have been residing, is not sufficient.\n<\/p>\n
        11.   The  learned  counsel  for the first respondent herein contended
\nthat inasmuch as the petition  premises  is  Natham  Poromboke,  the  revision
\npetitioners  or  their father C.Thomas alias C.Kothandan cannot claim title to
\nthe same and in any event, the revision petitioners have not proved  that  the
\npetition premises originally belonged to C.Thomas alias C.Kothandan and on his
\ndeath,  the  revision  petitioners  have  become the owners and that they also
\nfailed to establish that the first respondent herein is a tenant in respect of
\nthe said premises on a monthly rent of Rs.75\/-.  The learned  counsel  further
\nsubmitted  that  as  per  Ex.R-1  dated  1.1.1964,  the  rental agreement, one
\nGovindasamy and his wife Marriammal leased the site to the first  respondent’s
\nfather  Dhanapal  in  which he had constructed, the thatched hut and have been
\nresiding with his family and on his death,  the  first  respondent  herein  is
\nresiding  with  his  family  in  his  own  right  and  as  such, now the first
\nrespondent  has  established  his  case  and  on  that  aspect,  the  revision
\npetitioners are not entitled for eviction on all the three grounds sought for.\n<\/p>\n
        12.   The  petition  premises  is  described  as thatched hut at No.3,
\nNarayana Maistry First Street (now Second Street), villivakkam,  Madras  4  9.
\nUnder  Ex.P-2  notice  was issued to Kothandan to appear on 22.11.19 91 before
\nthe Special Officer, City Measurement  Final  Audit(efu  msit  ,Wjp  jzpf;if),
\nNorth  Chennai,  Purasai, Perambur Taluk Office, Chennai 34, with the property
\ntax receipts and the receipts for payment of urban land tax in respect of  the
\nyears 1989-90  and other documents relating to the property.  Ex.P-3 series is
\nthe house tax receipts issued to Kothandan  in  respect  of  the  premises,  3
\nNarayana Maistry  Street  for  the  years  1966 to 1970.  Ex.P-4 series is the
\nproperty tax demand notice issued to Kothandan for the said property  for  the
\nfirst and  second  half years 1988-89 and 1990-91.  Ex.P-5 is the property tax
\ndemand card issued to Kothandan.  Ex.P-6 is the  proceedings  dated  23.7.1981
\ninforming  the  said  Kothandan  that  assessment  orders  have been passed in
\nrespect of the urban land tax and t hat an appeal can be preferred before  the
\nUrban Land  Tax  Tribunal  relating  to  the petition property.  Ex.P-7 is the
\norder of the Assistant  Commissioner  of  Urban  Land  Tax  dated  13.10.1980.
\nEx.P-8  is  receipt  for  payment of urban land tax dated 28.12.1982 issued to
\nKothandan.  Ex.P-9  is  the  demand  notice  for  urban  land  tax  issued  to
\nKothandan.   Ex.P-10  is  the  receipt  for  payment  of  urban land tax dated
\n9.9.1992 issued to Kothandan.  Therefore, it is clear  from  Exs.P-2  to  P-10
\nthat  the said Kothandan is the owner of the petition premises, viz., thatched
\nhut  bearing  No.3,  Narayana  Maistry  First  Street  (now  Second   Street),
\nVillivakkam, Chennai 49.\n<\/p>\n
        13.   As  against  such evidence produced by the revision petitioners,
\nthe first respondent herein marked lease agreement Ex.R-1 dated 1.1.1964  said
\nto  have been executed by one Govindasamy and his wife Marriammal in favour of
\nhis father R.C.Dhanapal, as per which vacant site has been leased to the  said
\nGovindasamy and his wife and that they had to put up thatched hut in the site.
\nIn  the  reply  notice  Ex.P-14  dated  26.9.1992,  it is claimed by the first
\nrespondent herein that he is the owner of the  petition  premises  and  he  is
\nenjoying it  for  more  than 20 years on his own.  No further particulars have
\nbeen furnished in the notice.  In the counter filed on 16.4.1993 in  the  Rent
\nControl  Original  Petition, it is only set out that there is no landlords and
\ntenant relationship between the revision petitioners and two  others  and  the
\nfirst respondent  herein.  It is further claimed in the counter that the first
\nrespondent herein put up the superstructure in his own right on his plot.   In
\nthe  reply  notice  Ex.P-14 dated 26.9.1992 and in the counter also it was not
\nstated how the first respondent herein  and  his  father  Dhanapal  came  into
\npossession  of  the petition premises as to whether his father became a tenant
\nin respect of the site and that he  had  put  up  the  superstructure.    But,
\nhowever  in his evidence as R.W.1, the first respondent herein has stated that
\nhis father Dhanapal  became  a  tenant  in  respect  of  the  site  under  one
\nGovindasamy  and  his  wife Marriammal for the first time, despite the fact in
\nEx.R-1 dated 1.1.1964, in the reply notice Ex.P-14 dated 26.9.1992 and in  the
\ncounter filed on 16.4.1993, no mention is made about the said agreement.  Even
\nthe  said  agreement Ex.R-1 has not been proved by the first respondent herein
\nand it is unregistered.    Further,  it  is  also  not  proved  by  the  first
\nrespondent  herein  as  to  how  Govindasamy  and his wife Marriammal were the
\nowners of the said vacant site.  Further, no value can be attached to  Ex.R-2,
\nthe  patta  said  to  have  been  issued to the first respondent herein by the
\nspecial Tahsildar ( Assignment), Saidapet dated 9.7.1979 in resepct of  Survey
\nNo.348\/1A Konnur village for 3 cents, in that it is not proved that it relates
\nto  the  petition  premises  and  further it is not stated in the reply notice
\nEx.P-14 dated 26.9.1992 and also in the counter filed on 16.4.1993  that  such
\npatta  was  issued in respect of the petition premises to the first respondent
\nherein.  Further, merely because, in Ex.R-3 dated 7.12  .1925  and  in  Ex.R-4
\ndated 5.10.1946, the southern boundary is mentioned as that of the vacant site
\nof  the father of the first respondent herein, it cannot be said that the site
\nof the petition premises  belonged  to  Dhanapal,  the  father  of  the  first
\nrespondent herein.    Admittedly,  it  is not the case of the first respondent
\nherein that the vacant site of the petition premises belonged  to  his  father
\nDhanapal  since  it  is  seen  from  Ex.R-1,  in that Govindasamy and his wife
\nexecuted the lease agreement in favour of Dhanapal, the father  of  the  first
\nrespondent  herein  in which Govindasamy and his wife Marriammal agreed to put
\nup hut.  Therefore, the first respondent has not proved that  vacant  site  of
\nthe  petition  premises  belonged  to  his father Dhanapal and that either his
\nfather Dhanapal or the first respondent herein put up the thatched hut in  the
\npetition premises.\n<\/p>\n
        14.   At the same time the revision petitioners have clearly proved by
\nmarking Exs.P-2 to P-10 that the  petition  premises  originally  belonged  to
\nC.Thomas  alias  C.Kothandan, the father of the revision petitioners and it is
\nhe who paid the property tax for the property and as such, it  is  clear  that
\ntheir  father  C.Thomas alias C.Kothandan was the owner of the property and on
\nhis death the revision petitioners have become  the  owners  of  the  petition
\npremises  and  the  first  respondent  herein became the tenant under C.Thomas
\nalias C.Kothandan and on his death under the revision petitioners on a monthly
\nrent of Rs.75\/-.\n<\/p>\n
        15.  The first respondent herein denied  the  title  to  the  revision
\npetitioners without bona fide and also has not paid the rent for a period from
\nFebruary, 1988 to September, 1992 which is to be construed as wilful.\n<\/p>\n
        16.   As  regards  the  petition  premises  required  for  own use and
\noccupation by the revision petitioners, such  case  has  been  proved  through
\nP.W.1, who clearly deposed that the adjacent premises, consisting of one room,
\nin  which  they  are  residing,  is  not  sufficient and as such, the revision
\npetitioners are entitled for eviction of the first respondent herein from  the
\npetition   premises   on   the  ground  of  additional  accommodation  through
\nrequirement sought on the ground of owner’s occupation and also on  the  other
\ntwo grounds.   The learned Rent Control Appellate Authority has not considered
\nall these aspects and therefore, the dismissal of the  Rent  Control  Original
\nPetition  by  allowing the Rent Control Appeal reversing the order of eviction
\nmade by the learned Rent Controller on all the three grounds is  improper  and
\nas such, the said order is to be set aside.\n<\/p>\n
        17.   In the result, this Civil Revision Petition is allowed with cost
\nsetting aside the judgment and decree dated 17.3.1998 made by the learned Rent
\nControl Appellate Authority in R.C.A.No.924 of 1994 and restoring the order of
\neviction  dated  31.8.1994  made   by   the   learned   Rent   Controller   in
\nR.C.O.P.No.2877 of 1992.\n<\/p>\n
Index :Yes.\n<\/p>\n
Internet:Yes.\n<\/p>\n
ts.\n<\/p>\n
To<\/p>\n
1) The Registrar,
\nSmall Causes Court,
\nMadras.\n<\/p>\n
2) The Section Officer,
\nV.R.  Section,
\nHigh Court,
\nMadras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court George Thomas vs T.Selvapathy on 5 April, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 05\/04\/2004 Coram The Hon’ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN Civil Revision Petition No.2280 of 1998 1.George Thomas. 2.Arokianathan. 3.Edwin. 4.Tmt.Jeslee. 5.Mrs.Rita. 6.Mrs.Flora. 7.Mrs.Asuntha Mary. 8.Mrs.Salina Mary. 9.Fathima. … Petitioners. -Vs- 1.T.Selvapathy. 2.Dhoras. … Respondents. Civil […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-137502","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nGeorge Thomas vs T.Selvapathy on 5 April, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/george-thomas-vs-t-selvapathy-on-5-april-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"George Thomas vs T.Selvapathy on 5 April, 2004 - 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