{"id":19434,"date":"2006-07-28T00:00:00","date_gmt":"2006-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-bhuvanesh-vs-rakman-bibi-on-28-july-2006"},"modified":"2017-10-25T04:58:01","modified_gmt":"2017-10-24T23:28:01","slug":"k-bhuvanesh-vs-rakman-bibi-on-28-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-bhuvanesh-vs-rakman-bibi-on-28-july-2006","title":{"rendered":"K.Bhuvanesh vs Rakman Bibi on 28 July, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
K.Bhuvanesh vs Rakman Bibi on 28 July, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 28\/07\/2006 \n\nCoram \n\nThe Hon'ble Mr.JUSTICE S.RAJESWARAN       \n\nC.R.P. NPD No.971 of 2003  \n\nK.Bhuvanesh                    .. Petitioner\n\n-Vs-\n\n1.Rakman Bibi \n2.Basheer Ahamad   \n3.Shahul Hameed  \n4.Noor Mohammed   \n5.Tmt.Jamul Bibi\n6.Tmt.Kader Balu                .. Respondents                             ..\n\n        Revision Petition filed against the order dated  9.4.2003,  passed  in\nR.C.A.No.740\/1997,  on  the  file  of  the  VII  Judge, Court of Small Causes,\nChennai confirming the order dated 26.6.1997 in R.C.O.P.No.33\/1992  ,  on  the\nfile of the XVI Judge, Court of Small Causes, Chennai.\n\n!For Petitioner         :  Mr.V.Ragavachari\n\n^For Respondents        :  Mr.V.Eapen Varghese\n\n:ORDER  \n<\/pre>\n
        This  Revision  Petition  has  been  filed  against  the  order  dated
\n9.4.2003, passed in R.C.A.No.740\/1997, on the file of the VII Judge, Court  of
\nSmall    Causes,   Chennai   confirming   the   order   dated   26.6.1997   in
\nR.C.O.P.No.33\/1992, on the file of the  XVI  Judge,  Court  of  Small  Causes,
\nChennai.\n<\/p>\n
        2.   The  unsuccessful tenant before both the authorities below is the
\nrevision petitioner before this court.\n<\/p>\n
        3.  The respondents 1 to 6 herein filed RCOP  No.33\/1992  against  the
\nrevision  petitioner  under Sec.10(2)(i) of the Tamil Nadu Buildings ( Lease &
\nRent Control) Act, 1960 (hereinafter called ‘the Act’)  for  eviction  of  the
\npetitioner herein  on  the  ground of wilful default.  The revision petitioner
\nresisted the RCOP by contending that the respondents are not the owners of the
\nproperty and the building was put up by his father  R.Krishnan  and  the  land
\nbelonged to  Sri Sowmiya Damodara Perumal Devasthanam.  The Rent Controller by
\norder dated 26.6.1997 ordered eviction against which an appeal  was  filed  in
\nRCA  No.740\/1997  and  the Appellate Authority also confirmed the order of the
\nRent  Controller  and  dismissed  the  Appeal  by  order  dated  9.4.2003  and
\nchallenging  the  order  dated  9.4.2003  the above Revision Petition has been
\nfiled by the tenant under Sec.25 of the Act.\n<\/p>\n
        4.  Heard the learned counsel for  the  revision  petitioner  and  the
\nlearned counsel  for  the  respondents.  I have also perused the documents and
\nthe judgments relied on by them in support of their submissions.\n<\/p>\n
        5.  The learned counsel for the  revision  petitioner  submitted  that
\nwhen  the  title of the landlord was denied by the tenant, the Rent Controller
\nshould go into the bona fide of such denial and if the denial  is  bona  fide,
\nthe parties  should  be  directed  to  approach  the civil court.  The learned
\ncounsel found fault  with  the  Rent  Controller  for  going  into  the  title
\nelaborately as if it was a civil court.  According to the learned counsel, the
\nAppellate Authority has also committed the same mistake of the Rent Controller
\nand therefore both the orders are bad in law and liable to be set aside.\n<\/p>\n
        6.    He   relied  on  the  following  judgments  in  support  of  his
\ncontention:-\n<\/p>\n
(1) 1963(II) SCJ 475 (Om Prakash Gupta v.  Dr.Rattan Singh)<\/a>
\n(2) 1982(I) SCC 223 (Chhaganlal K.Mehta v.  P.N.Haribhai<\/a>
\n(3) 1987(4) SCC 424 (D.Satyanarayana v.  P.Jagadish<\/a>
\n(4) 1990(4) SCC 286 (LIC v.  India Automobiles & Co.)
\n(5) 1997-1- L.W.  1 (Thangavelu v.  Ramadoss)<\/a>
\n(6) 1996-1-L.W.  83 (Annamalai and another v.  The Official     Receiver,
\n                     North Arcot Ambedkar District and another)<\/p>\n
(7) AIR 2002 S.C.  2171 (A.V.G.P.Chettiar & Sons v.     T.Palanisamy Gounder)<\/a><\/p>\n
(8) AIR 2005 Cal.  281 (Sambhunath Mitra v.  Khattan    Consultant Ltd.)<\/p>\n
        7.  Per contra, the learned counsel for the respondents submitted that
\nboth the authorities below did go into the question of whether the  denial  is
\nbona fide and having considered that the denial is not bona fide, the order of
\neviction is passed by the Rent Controller which was confirmed by the appellate
\nauthority.   Therefore  according  to  him there is no infirmity in the orders
\npassed by the courts below.\n<\/p>\n
        8.   In  RCOP  No.33\/1992  the respondents herein have stated that the
\nrevision petitioner is in arrears of rent from April 1991 to November 1991 and
\nthe tenant  has  deliberately  committed  wilful  default.     It   was   also
\nspecifically pointed out in para 4 of the petition that on a previous occasion
\nalso  the  tenant  committed  wilful default in payment of rent from September
\n1988 to March 1991 amounting to Rs.3,720\/and the entire arrears was paid after
\nthe issue of lawyer’s notice dated 12.4.1991 after admitting  the  default  in
\nthe reply notice dated 19.4.1991.\n<\/p>\n
        9.  Even though the tenant has denied the title  of  the  landlord  by
\ncontending  that  the  land belonged to Devasthanam and his father constructed
\nthe building as early as 1950, he did  not  deny  the  lawyer’s  notice  dated
\n12.4.1991 and his reply notice dated 19.4.1991 and also the subsequent payment
\nmade by  him  towards the rental arrears.  The lawyer’s notice dated 12.4.1991
\nwas marked as Ex.P4 and the reply notice dated 19.4.1991 was marked as  Ex.P5.
\nIn  Ex.P4,  the  tenant was called upon to pay the entire arrears of rent from
\nSeptember 1988 to March 1991 amounting to Rs.3,720\/-.    In  the  reply  dated
\n19.4.1991  (Ex.P5) the tenant contended that when he tendered the rent for the
\nmonth of August 1988 and also  on  subsequent  date,  the  respondents  herein
\nevaded  to accept the rent by stating that the entire rent be kept in the bank
\nin a lump sum and the same would be received after  his  return  from  abroad.
\nFurther it was stated in Ex.P5, that as per the demand made in Ex.P4, a Demand
\nDraft for Rs.3795\/- was enclosed, comprising of a sum of Rs.3,720\/-towards the
\nrental arrears and Rs.75\/- being the cost of notice dated 12.4.91.\n<\/p>\n
        10.   Exs.P4  and  P5  would  make  it  very  clear  that the revision
\npetitioner has accepted the landlord-tenant relationship.  In Ex.P4 it is also
\nvery clearly stated by the landlord that he is the absolute owner of the  shop
\nportion under the tenant’s occupation on a monthly rent of Rs.120\/-.  This was
\nnot  at  all denied and the demand in the notice was complied with by not only
\npaying the rental arrears, but also by paying the cost of notice  as  demanded
\nby the  landlord.    If  at all the tenant’s father had put up the building as
\nearly as in the year 1990 on the lands owned by Devasthanam, the tenant  would
\nhave never  given a reply as in Ex.P5.  This fact was specifically adverted to
\nby both the authorities below to come to a conclusion that the setting  up  of
\ntitle  by  the tenant on Devasthanam and his father cannot be accepted at all.
\nIn fact in his cross-examination the tenant deposed that he only signed  Ex.P5
\nbut the  same  was  obtained  by  him  under  threat and coercion.  As rightly
\nobserved by both the authorities below that if at all Ex.P5  was  obtained  by
\nthreat and coercion, the tenant would have definitely stated so in the counter
\nstatement filed in RCOP No.33\/1992 while countering the averments contained in
\npara 4  of  the  petition  filed  in RCOP No.33\/1992.  Therefore this claim of
\nobtaining Ex.  P5 under threat and coercion is only an  after-thought  to  get
\nover Ex.   P5 and the tenant having admitted the ownership and having paid the
\nrental arrears as contained in Ex.P5 is  now  estopped  from  contending  that
\nthere  is no landlord tenant relationship between the parties under Sec.116 of
\nthe Indian Evidence Act.\n<\/p>\n
        11.  In (1982) 1 SCC 223 cited supra, the Hon’ble Supreme  Court  held
\nthat estoppel  deals  with  question of facts and not of rights.  A man is not
\nestopped from asserting a right which he had said that he would not assert and
\nthere can also be no estoppel against a statute.\n<\/p>\n
        12.  In the above decision, the Hon’ble Supreme Court dealt  with  the
\nconcept  of  estoppel as contemplated under Sec.115 of the Indian Evidence Act
\nand discussed the instances under which a case could  be  brought  within  the
\nscope of estoppel as defined under Sec.115 of the Indian Evidence Act.  But in
\nthe  case  on  hand  the  estoppel is contemplated under Sec.116 of the Indian
\nEvidence Act and therefore the above decision is not useful  for  the  learned
\ncounsel for the petitioner.\n<\/p>\n
        13.  In  AIR  2002  S.C.   2171 cited supra, the Hon’ble Supreme Court
\nheld that mere giving of undertaking by the tenant to vacate the premises  for
\nobtaining  stay  of  execution of eviction decree, does not foreclose a tenant
\nfrom availing of any statutory remedies available to him by way of  appeal  or
\nrevision or under the Constitution.\n<\/p>\n
        14.   The  case of the Hon’ble Supreme Court is easily distinguishable
\nfrom the facts of the present case.\n<\/p>\n
        15.  The learned counsel for the petitioner placed strong reliance  on
\nthe  decision  of the Hon’ble Supreme Court reported in (1987) 4 SCC 424 cited
\nsupra wherein it was held that when there is a threat of eviction by a  person
\nclaiming  title  paramount, i.e., head lessor the tenant is not estopped under
\nSec.116 of the Evidence Act from  challenging  the  title  and  the  right  to
\nmaintain the  eviction  proceedings of the other lessor.  The relevant portion
\nof the judgment of the Hon’ ble Supreme Court is as follows:-\n<\/p>\n
        “3.  The appeal must be allowed on the short ground that there being a
\nthreat  of  eviction  by  a  person claiming title paramount i.e., head lessor
\nKrishnamurthy, the appellant  was  not  estopped  under  Section  116  of  the
\nEvidence Act from challenging the title and his right to maintain the eviction
\nproceedings of  the  respondent  P.Jagadish as the lessor.  Section 116 of the
\nEvidence Act provides that no tenant of immovable property shall,  during  the
\ncontinuance  of  the  tenancy,  be permitted to deny that the landlord of such
\ntenant had, at the beginning  of  the  tenancy,  a  title  to  such  immovable
\nproperty.   Possession  and  permission being established, estoppel would bind
\nthe tenant during the continuance of the tenancy and until he  surrenders  his
\npossession.   The  words  “during  the  continuance  of the tenancy” have been
\ninterpreted to mean during the continuance of the possession that was received
\nunder the tenancy in question, and the courts have repeatedly laid  down  that
\nestoppel  operates  even after the termination of the tenancy so that a tenant
\nwho had been let into possession, however defective it may be, so long  as  he
\nhas  not  openly  surrendered  possession,  cannot  dispute  the  title of the
\nlandlord at the commencement of the tenancy.  The rule  of  estoppel  is  thus
\nrestricted  not only in extent but also in time, i.e., restricted to the title
\nof the landlord and during the continuance of the tenancy;  and  by  necessary
\nimplications,  it  follows  that  a  tenant  is not estopped, when he is under
\nthreat of eviction by the title paramount, from contending that  the  landlord
\nhad  no  title  before the tenancy commenced or that the title of the landlord
\nhas since come to an end.\n<\/p>\n
        4.  The rule of estoppel embodied under Section 116  of  the  Evidence
\nAct  is  that,  a  tenant  who  has  been  let into possession cannot deny his
\nlandlord’s title, however defective it may be, so long as he  has  not  openly
\nrestored possession  by  surrender to his landlord.  During the continuance of
\nthe tenancy, the tenant cannot acquire by prescription a  permanent  right  of
\noccupancy  in  derogation  of the landlord’s title by mere assertion of such a
\nright to the knowledge of the landlord.  See :  Bilas Kunwar v.  Desraj Ranjit
\nSingh (ILR (1915) 37 All 557 ( PC) and Atyam Veerraju v.    Pechetti  Venkanna<\/a>
\n(1966) 1 SCR  831  :  AIR 1966 SC 629.  The general rule is however subject to
\ncertain exceptions.    Thus  a  tenant  is  not  precluded  from  denying  the
\nderivative title of  the  persons claiming through the landlord.  See :  Kumar
\nKrishna Prosad Lal Singha Deo v.  Baraboni Coal Concern Limited (AIR  1937  PC
\n251 :  169  IC 556 :  (1937) 2 MLJ 286.  Similarly, the estoppel under Section
\n116 of the Evidence Act is restricted to  the  denial  of  the  title  at  the
\ncommencement of  the  tenancy.    From this, the exception follows, that it is
\nopen to the tenant even without surrendering possession to show that since the
\ndate of the tenancy, the title of the landlord came to an end or that  he  was
\nevicted  by  paramount  title  holder  or that even though there was no actual
\neviction or dispossession from the property, under a threat of eviction he had
\nattorned to the paramount title-holder.  In order to  constitute  eviction  by
\ntitle paramount, it has been established by decisions in England and in India,
\nthat  it  is not necessary that the tenant should be dispossessed or even that
\nthere should be a suit in ejectment against him.  It  will  be  sufficient  if
\nthere  was  threat  of  eviction  and if the tenant as a result of such threat
\nattorns to the real owner, he can set up  such  eviction  by  way  of  defence
\neither to an action for rent or to a suit in ejectment.  If the tenant however
\ngives  up  possession  voluntarily  to  the  title-holder, he cannot claim the
\nbenefit of this rule.  When the tenancy has been  determined  by  eviction  by
\ntitle  paramount,  no  question  of  estoppel  arises under Section 116 of the
\nEvidence Act.  See :  Adyanath Ghatak v.  Krishna Prasad Singh  (AIR  1949  PC\n<\/p>\n
124)  The  principle  must  equally apply when the tenant has attorned under a
\nthreat of eviction by the title paramount and there comes into existence a new
\njural relationship of landlord and tenant as between them.  The law is  stated
\nin Vol.  27 Halsbury’s Laws of England, 4th edn., para 238:\n<\/p>\n
                238.  Eviction  under title paramount.  In order to constitute
\nan eviction by a person claiming under title paramount, it  is  not  necessary
\nthat the tenant should be put out of possession, or that proceedings should be
\nbrought.   A  threat  of  eviction  is  sufficient,  and  if  the  tenant,  in
\nconsequence of the threat, attorns to the claimant, he may set this up  as  an
\neviction  by  way of defence to an action for rent, subject to his proving the
\nevictor’s title.  There is no  eviction,  however,  if  the  tenant  gives  up
\npossession voluntarily.\n<\/p>\n
Quite recently, this Court in Mangat Ram v.  Sardar Meharban Singh<\/a> (19  87)  4
\nSCC 319, to which one of us was a party, observed:  (SCC p.327, para 11)<\/p>\n
                The  estoppel contemplated by Section 116 is restricted to the
\ndenial of title at the commencement of  the  tenancy  and  by  implication  it
\nfollows  that  a  tenant is not estopped from contending that the title of the
\nlessor has since come to an end.\n<\/p>\n
See also :  Fida Hussain v.  Fazal Hussain (AIR 1963 MP 232 :  1963 MPLJ  248,
\nK.S.M.  Guruswami   Nadar   v.      N.G.Ranganathan   (AIR<\/a>   1954   Mad  402),
\nS.A.A.Annamalai Chettiar v.  Molaiyan (AIR<\/a> 1970 Mad 396:  (1970) 2 Mad LJ 562:
\n1969 Ren CR 1114 :  1971 Ren CJ 215 and Chidambara  Vinayagar  Devasthanam  v.
\nDuraiswamy (ILR (1967) 1 Mad 624″\n<\/p>\n
        16.  The decision rendered by the Apex Court will  not  apply  to  the
\nfacts of  the  present  case.  The revision petitioner’s case is that the land
\nbelonged to the temple and the superstructure was put up by his father.  It is
\nnot established by the revision petitioner that there was a threat of eviction
\nby the temple to evi ct him from the lands to enable him to deny the title  of
\nthe landlords.    In fact the revision petitioner as tenant asserted his right
\nas a tenant who is entitled to purchase the land from  the  temple  under  the
\nTamil  Nadu  City  Tenants  Protection  Act  as  pleaded by him in the counter
\nstatement filed by him in RCOP No.33\/1992.\n<\/p>\n
        17.  In AIR 2005 Cal.  281 cited supra, a Division Bench  of  Calcutta
\nHigh  Court  held  that  when the tenant due to ignorance of law paid rents to
\nthird party, it will not stand as estoppel against the tenant from denying the
\nderivative title of the third party and from  retendering  rent  to  the  real
\nlandlord.\n<\/p>\n
        18.   This decision is also not applicable to the facts of the present
\ncase as the revision petitioner has categorically admitted  the  ownership  of
\nthe landlord and paid rental arrears as is evident from Ex.P5 .\n<\/p>\n
        19.   The  learned  counsel  for  the  revision petitioner strenuously
\ncontended that in a rent control proceedings, title  disputes  should  not  be
\ndecided  by the Rent Controller as the same is outside the jurisdiction of the
\nRent Control Act.  He further contended that the Rent Controller has gone into
\nthe title elaborately and held that the ownership lies with the  landlord  and
\nthe revision petitioner does not have title.\n<\/p>\n
        20.   In  (1990)  4 SCC 286 cited supra, the Hon’ble Supreme Court has
\nheld that by virtue of Section 10(2)(vii) read with  the  proviso  to  Section
\n10(1)  of  the  Tamil  Nadu  Rent  Control Act, the jurisdiction to decide the
\nquestion of title is denied to the Rent Controller in a matter of eviction  of
\ntenant.\n<\/p>\n
        21.  In  1997-1-L.W.    1  cited  supra,  this  court  held that for a
\npetitioner seeking to evict a person who is in occupation of a  premises,  the
\npetitioner  will  have  to establish the rights to the relief and he must show
\nthat the occupant is a tenant and the petitioner is his landlord.\n<\/p>\n
        22.  In 1996-1-L.W.  83 cited supra, this court held that adjudication
\non title can be decided only by a civil court and the Rent Controller  has  to
\nonly go into the question of whether the denial of title is bona fide or not.\n<\/p>\n
        23.    Citing  the  above  decisions,  the  learned  counsel  for  the
\npetitioner submitted that as the authorities below have adjudicated the  issue
\nof  title in the rent control proceedings the same is without jurisdiction and
\nthe orders are liable to be set aside.\n<\/p>\n
        24.  I am unable to accept the contentions of the petitioner.   It  is
\nsettled  law  that  the  Rent  Controller has no jurisdiction to adjudicate on
\ntitle and the Rent Controller has to only to decide the bona fide of denial of
\ntitle by a tenant in a Rent Control proceedings under Tamil Nadu Rent  Control
\nAct, 1960.\n<\/p>\n
        25.   It is true that the Rent Controller in the present case has gone
\ninto the question of title, but he has clearly observed in his order that  the
\nownership  of  the  petition building should not be gone into by him, still he
\ncould go into the question of prima facie  title  of  the  petition  building.
\nTherefore  what was decided by the Rent Controller is only a prima facie title
\nof the landlord and not the real title of the petition property which  can  be
\ngone into by the trial court.  Therefore on this ground, the revision petition
\ncannot be  adjudicated  in  favour of the tenant.  That apart, the question of
\nbona fide or otherwise of the denial of title by the revision  petitioner  was
\ngone  into  by both the authorities and a finding was rendered that the denial
\nis not bona fide in the light  of  Exs.P4  and  P5.    Therefore  once  it  is
\nestablished  that the denial of title is not bona fide, then the tenant has to
\nface the rent control proceedings but much to his detriment.\n<\/p>\n
        26.  In the result, I do not find any merits  to  interfere  with  the
\norders of the authorities below.  Consequently, the Civil Revision Petition is
\ndismissed.  No   costs.      C.M.P.No.10123\/2003   is   also   dismissed,  and
\nV.C.M.P.No.3744\/2005 is closed.\n<\/p>\n
sks <\/p>\n
To<\/p>\n
The Registrar,
\nSmall Causes Court, Chennai.104.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.Bhuvanesh vs Rakman Bibi on 28 July, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28\/07\/2006 Coram The Hon’ble Mr.JUSTICE S.RAJESWARAN C.R.P. NPD No.971 of 2003 K.Bhuvanesh .. Petitioner -Vs- 1.Rakman Bibi 2.Basheer Ahamad 3.Shahul Hameed 4.Noor Mohammed 5.Tmt.Jamul Bibi 6.Tmt.Kader Balu .. Respondents .. Revision Petition filed against the […]<\/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-19434","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.Bhuvanesh vs Rakman Bibi on 28 July, 2006 - 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\/k-bhuvanesh-vs-rakman-bibi-on-28-july-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.Bhuvanesh vs Rakman Bibi on 28 July, 2006 - 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