M. Narayanaswami v. Roya Poulle Amala — 1995 DIGILAW 827 (MAD)

Judgment :- 1. The unsuccessful tenant before both the authorities below is the petitioner in this Civil Revision Petition. 2. The respondent/landlady file R.C.O.P. No. 99 of 1992 on the file of the Rent Controller, Pondicherry, against the tenant under Section 10(2)(1) of the Pondicherry Buildings (Lease and Rent Control) Act. 1969, for eviction. The case of the landlady is that she is the owner of the building situated at the junction of lgnacy Mainstry Street and Bharathi Street bearing Door No. 32-A (New No. 42) at lgnacy Maistry Street and Door No. 218 (New No. 466) at Bharathi Street, Pondicherry and that the ground floor portion of the said building was leased out to the tenant on a monthly rent of Rs. 200/-. It is her case that on 3.4.1990, the landlady and her sisters and brothers had effected a partition of their joint family properties under a registered partition deed in which the demised premises and the building was allotted to her share. The tenant, though paid the rent till July, 1991, has committed defeult thereafter and has not chosen to pay the rent in spite of several demands to pay the same. The land lady on 11.1.1992 and 26.3.1992 sent a notice and a corrigendum respectively to the tenant calling upon him to pay the arrears of rent and also vacate and deliver possession. The tenant, though received the same, did not send any reply. Thus, the tenant has committed wilful default in payment of rent since he did not choose to pay the rent even after receipt of the notice. The tenant being a chronic defaulter is liable to be evicted. 3. The tenant filed a counter affidavit denying the allegations of the landlady. According to him, the respondent herein is not the owner of the building and that therefore, she has no authority to collect the rent. He had never seen any person by name P. Raghunath and never paid him any rent as alleged. It is his case that he has been occupying the petition mentioned premises as an absolute owner of the same and never paid any rent to anybody. He also denied the family partition as false and an imaginary one and has been invented for making untenable claim over the premises in question. It is his case that he has been occupying the petition mentioned premises as an absolute owner of the same and never paid any rent to anybody. He also denied the family partition as false and an imaginary one and has been invented for making untenable claim over the premises in question. The tenant is in possession and enjoyment of the property as an absolute owner of the same and the alleged partition deed is only a fabricated document among the members of the family and as such, it will not create any right or interest over the petition mentioned property in favour of the landlady. He has not committed default, much less wilful default in payment of rent. As the tenant is enjoying the property as the absolute owner of the same, the question of payment of rent and the alleged default of the same does not arise. 4. On the side of the landlady, Exs. A-1 to A-12 were marked and the landlady examined herself as P.W. I. On the said of the tenant, no documents were filed. The tenant has examined himself as R.W. I. 5. The learned Rent Controller by his order dated 13-4-1994, on a consideration of the evidence placed before, him, ordered eviction. The learned Rent Controller has held that the respondent herein is the owner of the premises and that the revision petitioner is not the owner of the same and that he is not in possession and enjoyment of the same as an absolute owner. The learned Rent Controller also held that the tenant has committed wilful default in paying the rents and as such, he is in arrears of rent from July, 1991, to July, 1992. The learned Rent Controller further held that the denial of title made by the tenant is not bona fide and that would be sufficient for ordering eviction of the tenant. The tenant preferred an appeal in M.A. No. 26 of 1994 before the Appellate Authority/Second Addl. District Judge, Pondicherry, and reiterated the same contention. The learned Appellate Authority, oh a consideration of the entire materials placed before him, dismissed the appeal. Aggrieved by the said order, the tenant has preferred the above revision. 6. Notice motion was ordered on 28-7-1995. On service of notice, the landlady appeared through her counsel. By consent of both parties, the main revision itself was taken up for final hearing. Aggrieved by the said order, the tenant has preferred the above revision. 6. Notice motion was ordered on 28-7-1995. On service of notice, the landlady appeared through her counsel. By consent of both parties, the main revision itself was taken up for final hearing. 7. Mr. R. Krishnamoorthy, learned counsel for the petitioner/tenant contended that the landlady did not induct the petitioner as a tenant in the premises in question and that therefore, there is no relationship of landlady and tenant amongst them. It is the contention of the learned counsel that the tenant is continuing in possession and enjoyment therefore, he is not liable to pay any rent to the landlady and as such, the question of wilful default does not arise. 8. Per contra, learned counsel for the landlady contended that the respondent has filed voluminous documents to show that she is the owner of the property in question and that the tenant has committed default in payment of rent to the landlady, Since the tenant has denied the title of the landlady, he is liable to be evicted from the premises in question. 9. I have gone through the pleadings and the evidence or record and of the orders passed by the authorities below. In my opinion, the landlady has proved her title to the property in question beyond any doubt. The voluminous documents filed and marked as Exs. A-1 to A-12 clearly establish her title to the property in question. It is her specific case that the property in question was originally owned by the joint family consisting of herself, her brothers and sisters and that in a family partition effected on 3-4-1990, it was allotted to her share, which is registered as Document No. 1690/90. The said document has been marked as Ex. A-2. A perusal of Ex. A-2 will clearly show that the property in question has been allotted to the share of the respondent herein under the partition. 10. It is the specific case of the landlady that during her absence from Pondicherry, her power of attorney agent and the auditor were collecting the rent from the tenant and that the tenant has committed default in payment of rent from July, 1991. The landlady has also filed Ex. A-1, certified copy of the title deed in respect of the building standing in her fathers name. The landlady has also filed Ex. A-1, certified copy of the title deed in respect of the building standing in her fathers name. The said document was marked through P.W. I. Ex. A-2, as already seen, is a partition deed effected between the landlady and her brothers and sisters. Ex. A-3 is the landlady and her brothers and sisters. Ex. A-2, is the copy of the lawyers notice dated 11-1-1992 and Ex. A is the corrigendum dated 26.3.1992. Ex. A5 is the extract of patta standing in the name of the landlady. Ex. A-6 is the extract of chitta in respect of the premises in question. Ex. A-8 is the letter d. 13-10-1992 issued by the Public Works Department transferring the water policy in the name of the landlady. Exs. A-9 and A-10 are the letters dated 24.11.1992 issued by the Electricity department transferring the electricity policy in the name of the landlady. Exs. A-11 and A-12 are letters written by the tenant, Exs. A-1 to A-12 were marked through P.W. I and proved. 11. On the side of the tenant, though he claims that he is enjoying the property as the absolute owner of the same, not a scrap of paper has been filed to show that the tenant is the owner of the premises. It is the specific case of the tenant that he is in possession and enjoyment of the property as an absolute owner. There is no accetable explanation from the tenant for not sending any reply to Exs. Aa-3 and A-4, the pre-suit notice issued by the landlady to the tenant asking him to pay the arrears of rent and also deliver vacant possession of the same. As already seen, the landlady has filed Ex. A-1, registration copy of the partition deed and the documents issued by public authorities for electricity connection, water connection etc., to show that the property stands in her name, Ex. A-5 is the patta issued by the authorities in the name of the landlady in respect of the building transferred in her name. Ex. A-6 is the chitta extract standing in the name of the landlady. Likewise, Exs. A-8 to A-10 are standing in the name of the landlady. A reference to those documents, in my opinion, will clearly establish the ownership of the premises by the landlady. Ex. A-6 is the chitta extract standing in the name of the landlady. Likewise, Exs. A-8 to A-10 are standing in the name of the landlady. A reference to those documents, in my opinion, will clearly establish the ownership of the premises by the landlady. Even though the tenant claims title to the property in question by virtue of his alleged continuous possession by his father and after him by himself, he has not produced any record to substantiate such as claim. In my opinion, the denial of title by the tenant is wilful. It is also curious to notice that even though the tenant has pleaded that he has perfected his title to the premises in question by adverse possession no concrete proof is adduced to prove the said plea. This itself shows that the tenant has no consistent case. At one stage he pleads title in his father and after his death in himself to the property in question and at later stage, he pleads that he has perfected his title to the premises in question and at later stage, he pleads that he has perfect his title to the premises in question. 12. The oral evidence let in by the landlady as P.W. I is clear in all respects. Her evidence is clear, cogent and convincing. Nothing has been elicited in cross-examination to discredit her testimony. The tenant, who examined himself as R.W. I. Gives very many inconsistent version during his cross-examination. He says that he did not know the names of the other tenants who occupied the building. The evidence of R.W. I in cross-examination extracted below would go to prove that the tenant has no consistent stand. My father died in or about 1982-1983, My father died at Karaikal. I am a native of Karaikal. I did not purchase the premises. My father also did not purchase the premises. I am not paying taxes for the premises. Patta of premises does not stand in my name. I have not received the electricity demand bill. I do not know as to in whose name the electricity connection for that building stands. Ideny the suggestion that the premises is the ancestral property of the petitioner. I received an advocate notice from the petitioner only after seeing a publication about the premises in a local newspaper. I did not issue reply to the petitioners notice. I do not know as to in whose name the electricity connection for that building stands. Ideny the suggestion that the premises is the ancestral property of the petitioner. I received an advocate notice from the petitioner only after seeing a publication about the premises in a local newspaper. I did not issue reply to the petitioners notice. I am not having any licence to my business. 13. The above evidence of R.W. I in my opinion, is enough and more than sufficient to order eviction of the tenant. The tenant has come forward with a false case. Though he sets up title in his father and later, in his name and also alternatively, pleads title by adverse possession, in the cross-examination R.W. I. the tenant says that neither he nor his father did purchase the premises and that he is not paying any tax for the premises and that there is no document to prove his ownership. It is totally unbelievable that a person in occupation of a premises in his own right is not in possession of any documentary proof to show that he is paying electricity charges, water charges or taxes to the property in question. The fact of not sending any reply to the pre-suit notices itself will go to show that the tenant has not denied the relationship of landlord and tenant between the parties. I, therefore, have no hesitation in holding that the tenant has committed wilful default in payment of rent. He is also liable to be evicted on the ground of denial of title, which, in opinion, is mala fide. 14. It is worthwhile to refer to the decision of our High Court reported in 1991 (II) L.W. 197 , wherein it has been held that the denial of title made by the tenant even during the course of eviction proceedings without any bona fide proof therefore itself would be sufficient ground for the eviction of the tenant even if the landlady has not has not pleaded for eviction of the tenant on that ground. In the decision reported in Majati Subbarao v. P.V.K. Krishna Rao (A.I.R. 1989 S.C. 2187). In the decision reported in Majati Subbarao v. P.V.K. Krishna Rao (A.I.R. 1989 S.C. 2187). The Supreme Court has observed that the denial of title in the course of eviction petition constitutes a ground for eviction provided the denial is not bona fide and it is not necessary that in order to constitute a ground for eviction, the denial of title must be anterior to the filing of the eviction petition. In instant case, the tenant has set up title in himself even though there is absolute no proof for the same. I therefore, hold that the denial of tide of the landlady is mala fide . As pointed out by the Supreme Court, such a tenant should be evicted from the premises by applying the test laid down by the Supreme Court. 15. I have also taken a similar view in C.R.P. Nos. 4404 and 4405 of 1987 dated 23.3.1995 and ordered eviction of the tenant in that case even though there is omission on the part of the landlord to amended the petition by including the disclaimer as a ground for eviction. In that case, the tenants have taken a plea in the counter affidavit filed before the Rent Controller keeping the title to the property in question on one C.T. Venugopal, a third party to the proceedings. As admitted by the tenants themselves in that case, they have been in occupation of the buildings as such tenants for the last twenty years and odd and all along they had been paying the rent only to the landlady. In such circumstances. I have ordered eviction holding that the landlady is entitled to take this plea in the revision itself seeking eviction on the ground of denial of title even though there is omission on her part to amend the petition by including the said plea as a ground foreviction. I now understand that my decision in C.R.P. Nos. 4404 and 4405 of 1987 dated 23-3-1995 has been affirmed by the Supreme Court of India and the Special Leave Petition filed by the tenants has been rejected. 16. The decision reported in K. Appa Rao v. Maragathammal (I.L.R. 1981 (I) Madras 7 = 93 L.W. 681 can also be referred to with advantage. 4404 and 4405 of 1987 dated 23-3-1995 has been affirmed by the Supreme Court of India and the Special Leave Petition filed by the tenants has been rejected. 16. The decision reported in K. Appa Rao v. Maragathammal (I.L.R. 1981 (I) Madras 7 = 93 L.W. 681 can also be referred to with advantage. In that case a Division Bench consisting of M.M. Ismail, C.J, and V. Ratnam, J, (as he then was) held as follows:— “that proviso merely uses the expression where the tenant denies the title of the landlord. This is a negative concept. But positively, while denying the title of the landlord, the tenant may set up title in himself or herself or in a third party. That is not referred to and that is not even necessary for the purpose of application of the second proviso to Section 10(1). So long as the tenant denies the title of the landlord, it is totally irrelevant, for the purpose of the applicability of the second proviso to section 10(1) whether he sets up title in himself or in a third party, because admittedly the language of the second proviso does not impose any restriction that it will apply only to a case where the tenant, while denying the title of the landlord, sets up title in himself or herself. So long as the tenant has denied the title of the landlord for the applicability of the second proviso to Section 10(1), it is irrelevant and immaterial, whether, in addition to denying the title of the landlord, the tenant claims title in himself or herself or sets up title in a third parry. In the present case, there is no controversy that the tenants denied the title of the petitioner only by putting forward the contention that some body else had become the owner of the property, and to such a situation admittedly the principle of estoppel contemplated by Section 116 of the Transfer of Property Act will not apply.” 17. The Rent Controller and the Appellate Authority in the instant case have, in my view satisfied themselves that the person seeking eviction is a landlady, who has prima facie right to receive the rent of the property in question. The Rent Controller and the Appellate Authority in the instant case have, in my view satisfied themselves that the person seeking eviction is a landlady, who has prima facie right to receive the rent of the property in question. In order, to decide whether the denial of the landladys title by the tenant is bona fide, the Rent Controller necessarily has to go into the tenants contention on the issue. As pointed out by the Supreme Court, the Rent Controller has only to see whether the tenants denial of the landladys title is bona fide in the circumstances of the case. In this case, the Rent Controller and the Appellate Authority have reached a conclusion on merits that landlady has title. They also held that the denial of title was not bona fide. For deciding these issues both the authorities below have, no doubt, also to consider the oral and documentary evidence adduced by the parties. In my view, the authorities below have on an appreciation of the evidence, both oral and documentary, come to the right conclusion that the landlady is entitled to an order of eviction. 18. For the reasons mentioned above, I am of the opinion that both the authorities below have reached the correct conclusion and that this revision by the tenant has to fail. Therefore, the Civil Revision Petition is dismissed. In the circumstances, however, I make no order as to costs.