{"id":155372,"date":"2010-08-20T00:00:00","date_gmt":"2010-08-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-jagadeesan-revision-vs-k-balasubramanian-on-20-august-2010"},"modified":"2014-12-16T22:02:11","modified_gmt":"2014-12-16T16:32:11","slug":"p-jagadeesan-revision-vs-k-balasubramanian-on-20-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-jagadeesan-revision-vs-k-balasubramanian-on-20-august-2010","title":{"rendered":"P.Jagadeesan … Revision vs K.Balasubramanian on 20 August, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
P.Jagadeesan … Revision vs K.Balasubramanian on 20 August, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 20\/08\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE R.S.RAMANATHAN\n\nC.R.P.(NPD)No.2608 of 2001\n\n1.P.Jagadeesan             ... Revision Petitioners\/\n2.P.Senthilkumar                Appellants\/Petitioners\n\nvs.\n\n\nK.Balasubramanian          ... Respondent\/Respondent\/\n                              Respondent\n\n\nThis  civil revision petition has been filed under   section 25 of the\nTamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23 of\n1973 and by Act 1 of 1980), to set aside the fair and decretal order in\nR.C.A.No.7 of 1997 on the file of the Rent Control Appellate Tribunal, Trichy\nand dismiss the RCOP No.304 of 1986, on the file of the Rent Controller, Trichy.\n\n!For Petitioners       ... Mr.S.Anand Chandrasekar\n                           for Sarvabhauman Associates\n^For Respondents       ... Mr.Ramesh\n\n:ORDER\n<\/pre>\n
\tHeard both sides.\n<\/p>\n
\t2.The tenants are the revision petitioners.  The respondent\/landlord filed
\nRCOP No.304 of 1986, on the file of the Principal Rent Controller, Trichy, for
\neviction on the ground of wilful default in the payment of rent and for
\ndemolition and reconstruction.\n<\/p>\n
\t3.The learned Rent Controller allowed the application on the ground that
\nthe tenants committed wilful default in the payment of rent and denied the title
\nof the landlord and rejected the eviction petition on the ground of demolition
\nand reconstruction. The tenants aggrieved by the same, filed appeal in RCA.No.7
\nof 1997, on the file of the Rent Control Appellate Authority, Trichy and the
\nlearned Rent Control Appellate Authority confirmed the finding of the learned
\nRent Controller and dismissed the appeal and aggrieved by the same, this civil
\nrevision petition is filed by the tenants.\n<\/p>\n
\t4.The case of the landlord is that the tenants executed an agreement of
\nlease, dated 30.04.1985 agreed to pay Rs.1,500\/- per month as rent and the
\nperiod of lease is 11 months and they have committed wilful default in the
\npayment of rent from August 1985 and the landlord requires the building for
\ndemolition and reconstruction.\n<\/p>\n
\t5.The tenants filed the counter stating that the schedule property
\nmentioned in the petition does not exist and they have not executed any
\nagreement of lease in favour of the landlord and they purchased the property
\nfrom Narayanaswamy Konar and before his purchase, he was a tenant under him and
\nthe vacant site was leased out to him and thereafter, the tenant has put up
\nconstruction and paid electricity bills in his name and the landlord\/respondent
\nsubsequently purchased some portions of property from the said Narayanaswamy
\nKonar and therefore, the revision petitioner is in possession of the property in
\nhis own right and he is not a tenant under the landlord\/respondent and hence,
\nthere is no question of payment of rent much less wilful default and there is no
\nrelation of landlord and tenant between the parties.\n<\/p>\n
\t6.Before the Rent Controller, the landlord examined himself and one of the
\ntenants examined himself and on the side of the landlord, three documents were
\nmarked and on the side of the tenants, 3 documents were marked and an Advocate
\nCommissioner was appointed to inspect the suit property and he has also filed a
\nreport as well as a rough plan and those documents were marked as Exs.C1 to C2.\n<\/p>\n
\t7.The learned counsel appearing for the revision petitioners\/tenants,
\nMr.S.Anand Chandrasekaran,  vehemently contended that in this case, admittedly
\nthere is a dispute with regard to the identity of the property and the tenants
\npurchased property of an extent of 60′ x 13′ from the original owner,
\nNarayanaswamy Konar and he is in possession of the same by putting up
\nconstruction and in the sale deed in favour of the landlord, it is also
\nmentioned that the property sold to the landlord is west of the property
\nbelonging to the tenants and hence, there is no relationship of tenant and
\nlandlord between the parties.\n<\/p>\n
\t8.He further submitted that in the petition filed by the landlord, he has
\nnot mentioned anything about the alleged agreement of lease executed by the
\ntenants and only in evidence, the lease deed was brought into light and the
\ntenants disputed the signature and the execution of the lease deed in favour of
\nthe landlord and the Courts below, without appreciating all these points,
\nallowed the application filed by the landlord and when the tenant has raised the
\nbona-fide dispute about the title of the landlord over the property, the Courts
\nbelow ought to have directed the landlord to file a suit for declaration before
\nthe civil Court and erred in ordering eviction and in support of that, relied
\nupon the judgment reported in 1994(2) MLJ, 447 in the case of E.Venkata Naicker
\nTrust, a Private Trust represented by its Manager, E.V.K.Selvaraj vs. Muthusamy
\nChettiar and<\/a> (2002)3 SCC 98, in the case of J.J.Lal Pvt. Ltd and others vs.
\nM.R.Murali and<\/a> another, in support of his contention.\n<\/p>\n
\t9.On the other hand, Mr.Ramesh, the learned counsel appearing for the
\nrespondent submitted that there is no dispute regarding the identity of the
\nproperty and both the Courts below have elaborately discussed about the identity
\nof the property and have rightly came to the conclusion that the property
\npurchased by the landlord is in Survey No.394 and the property purchased by the
\ntenant is in Survey No.349 and even though, the lease deed was not mentioned in
\nthe petition, the same was mentioned in the notice sent by the landlord prior to
\nthe filing of the petition and therefore, it cannot be stated that it was
\ncreated for the purpose of the petition and even though the tenant has denied
\nthe signature, no attempt was made by the tenant to prove the same by referring
\nthe document to handwriting expert and the Courts below after comparing the
\nsignature found in the vakalat and other documents, rightly came to the
\nconclusion that the signature found in the lease agreement was that of the
\ntenants and ordered eviction.  It is, therefore, submitted that there is no need
\nto interfere with the order of the Courts below.\n<\/p>\n
\t10.I have considered the rival contention of both the counsels.\n<\/p>\n
\t11.In this case, admittedly the tenant has raised the points that the
\nproperty described in the petition does not exist. In the counter, it is
\nespecially stated that the property described in the petition does not exist. He
\nfurther pleaded that the revision petitioner is the owner of the petition
\nmentioned property and the landlord has no title over the same and there is no
\nrelationship of the landlord and the tenant between the parties.\n<\/p>\n
\t12.It is admitted by the landlord in evidence that his property is lying
\nwest of the tenants property and the tenant’s property was also mentioned as
\nbelonging to Subbiah Patarai, in his sale deed and there is a vacant site
\nbetween Subbiah Patarai and the property purchased by him. The specific case of
\nthe respondent is that he sold 500 sq.feet of property and in the remaining
\nextent, the petition mentioned property is situate and that was leased out to
\nthe tenants. In the notice Ex.P3 dated 15.04.1986, the schedule of property was
\nmentioned as having an extent of 40 feet north-south and east-west on the
\nnorthern side 3 feet 10 inches and on the south side 12 feet and 6 inches and
\nbounded on the west of the property belonging to the tenants (o.v!;.394 y;
\njA;fSila nlj;jpw;Fk; fpHf;F) and east of the property purchased by the landlord
\nfrom Narayanasamy Konar and bounded by North and South by east-west pathway. It
\nis specifically stated in the petition that the property is situate in
\nT.S.No.394 and bounded on the east and west by the petitioner’s property and
\nnorth and south by east-west pathway.\n<\/p>\n
\t13.It is seen from the tenancy agreement Ex.P2 that the land, which was
\nleased out to tenants was situate within the following boundaries:-“Western
\nboundary is the property of the tenant(o.v!;.394y; jA;fSila nlj;jpw;Fk;
\nfpHf;F)situate in Survey No.394, eastern boundary is the property belonging to
\nthe landlord purchased by him from Narayanasamy Konar and North-south is bounded
\nby East-west pathway. The same boundary is mentioned in the notice.  But in the
\npetition, it is stated that the property is situate in T.S.No.394 and bounded on
\nthe east and west by the petitioners’ property and north and south by east-west
\npathway. It is also admitted that in the sale deed of the revision petitioner,
\nthe eastern boundary is described as property belonging to the tenant, which is
\nmentioned as Subbiah Patarai. It is further admitted by the landlord that he
\nsold a portion of the property purchased by him from Narayanasamy Konar and out
\nof the remaining extent, a portion was let-out to the tenant. The Courts below
\ntaking note of the discrepancy in survey number mentioned in the tenants’ sale
\ndeed came to the conclusion that the tenants have purchased the property in
\nsurvey No.349 whereas the landlord has purchased the property in Survey No.394
\nand therefore, the tenant cannot claim any right of ownership over the property
\npurchased by the landlord and no attempt was made by the tenant to prove that
\nthe property in dispute is his property and therefore, the tenant has committed
\ndefault in the payment of rent and wilfully denied the title of the landlord and
\ncommitted default in the payment of rent and therefore, eviction was ordered,
\nwhich according to me is erroneous.  As rightly pointed by the learned counsel
\nappearing for the revision petitioners, in the notice sent by the landlord,
\nEx.P3, it is stated that the tenanted property is situate on the western side
\nand it is in Survey No.394. The same recitals regarding the description of the
\nwestern boundary was also mentioned in the lease deed.  Therefore, from these
\ntwo documents, Exs.P2 and P3, it is made clear that the property purchased by
\nthe tenant is also in survey No.394 and it is not in survey No.349 as found by
\nthe Courts below.\n<\/p>\n
\t14.In the notice as well as in the agreement of lease, western boundary is
\nthe property belonging to the tenant, which is in Survey No.394.  In the sale
\ndeed, Ex.P1 it is clearly stated that the western boundary is the property
\nbelonging to Subbiah patarai, which is admittedly the property belonging to the
\ntenant.  Therefore, from Exs.P1, P2 and P3, it is made clear that the western
\nboundary of the property alleged to have been leased out to the tenant is the
\ntenants’ property. But in the petition, it is stated that the western and
\neastern side are the properties of the landlord.\n<\/p>\n
\t15.As stated supra, in Exs.P2 and P3, it has been specifically stated that
\nthe tenants’ property is situate in Survey No.394. Therefore, from the exhibits
\nfiled in support of this petition and the schedule property as described in the
\npetition, there are discrepancies with regard to the western boundary.  Though,
\nthe landlord has mentioned about the agreement of lease deed, dated 30.04.1985
\nin the notice, it was not mentioned in the petition and it was also not included
\nalong with the documents filed along with the plaint and only during evidence,
\nthe unregistered and unstamped documents were produced.  As per Ex.P3, the
\nperiod of lease is for 11 months and therefore, it does not require
\nregistration.  Nevertheless, it requires stamp duty and under section 35 of the
\nIndian Stamp Act, without proper stamp duty, the Court should not have been
\nadmitted the documents.  It is further admitted by the tenant that the suit
\nproperty has not been identified by the Commissioner in the plan, and the
\nlandlord has not filed any objection to the Commissioner report.\n<\/p>\n
\t16.In the Commissioner’s plan, the suit property was described as ‘ABCD’
\nand it does not tally with the measurement given in the petition and no
\nexplanation was given by the landlord in respect of area described by the
\nCommissioner as the suit property.  Both the Courts below proceeded on the
\npresumption that the tenant has executed the lease deed and in the sale deed of
\nthe tenant the survey number is mentioned as 349 and the suit property is in
\nsurvey No.394 and therefore, the tenant has wilfully denied the title and
\ncommitted default in the payment of rent.  According to me, the findings of the
\nCourts below regarding the identity of the property is not correct. As stated
\nsupra, there is a discrepancy regarding western boundary and even assuming that
\nthe tenant has executed the lease deed as evidenced by Ex.P2, the suit property
\nmentioned in the petition is not the same property as described in the lease
\ndeed and therefore, the lease deed cannot be taken advantage of by the landlord
\nto come to the conclusion that the tenant has admitted the tenancy.\n<\/p>\n
\t17.Both the Courts below have held that there is a difference in the
\nsurvey number in the tenant’s sale deed and the tenant has purchased the land in
\nsurvey No.349 and the landlord purchased the land in survey No.394 and
\ntherefore, the tenant does not have any property in that area without taking
\ninto consideration the description of the property mentioned in Ex.P2 and P3
\nwherein it has been stated that the western property is the property belong to
\nthe tenant which is in survey No.394.  Further, in the sale deed it is mentioned
\nthat the western property belonged to Subaiya Patarai, which belongs to the
\nrevision petitioner. Considering all these aspects, I am of the opinion that the
\nlandlord has not proved that he is the owner of the property mentioned in the
\npetition and the dispute raised by the tenant is a bona-fide one and when the
\ntenant has disputed the title of the landlord over the property and it is bona-
\nfide, the Courts below ought to have referred the matter to the civil Court and
\nshould not have ordered eviction.\n<\/p>\n
\t18.As held by the Honourable Supreme Court in the judgment reported in
\n(2002)3 SCC 98, in the case of J.J.Lal Pvt. Ltd and others vs. M.R.Murali and<\/a>
\nanother, a mere denial of the title of the landlord is not enough; such denial
\nhas to be “not bona-fide” and the Honourable Supreme Court has further held as
\nfollows:-\n<\/p>\n
\t“Not bona-fide” would mean absence of good faith or non-genuineness of the
\ntenant’s plea.  If denial of title by the tenant is an outcome of good faith or
\nhonesty or sincerity, and is intended only to project the facts without any
\nintention of causing any harm to the landlord it may not be “not bona fide”.
\nTherefore to answer the question whether an assertion of denial of the
\nlandlord’s title by the tenant was bona-fide or not, all the surrounding
\ncircumstances under which the assertion was made shall have to be seen.”\n<\/p>\n
\t19.In this case, taking into consideration of the circumstances as stated
\nabove, in my opinion, the dispute raised by the tenant is a bona-fide one and
\ntherefore, the Rent Controller has no jurisdiction to order eviction and ought
\nto have referred the matter to the landlord to establish his title before the
\ncivil Court and without appreciating these facts, both the Courts below have
\nordered eviction.\n<\/p>\n
\t20.Hence, the orders of the Courts below are set aside and accordingly,
\nthis civil revision petition is allowed. No costs.\n<\/p>\n
er<\/p>\n
To,<\/p>\n
1.The Rent Controller,
\n  Trichy.\n<\/p>\n
2.The Rent Control Appellate Authority,
\n  Trichy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court P.Jagadeesan … Revision vs K.Balasubramanian on 20 August, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20\/08\/2010 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(NPD)No.2608 of 2001 1.P.Jagadeesan … Revision Petitioners\/ 2.P.Senthilkumar Appellants\/Petitioners vs. K.Balasubramanian … Respondent\/Respondent\/ Respondent This civil revision petition has been filed under section 25 of the Tamil Nadu […]<\/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-155372","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nP.Jagadeesan ... 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