Dr. M. R. Srinivasan v. V. Balakrishnan — 1996 DIGILAW 495 (MAD)

Judgment :- 1. By consent of both parties, both the Civil Revision Petitions are taken up for final hearing. 2. The landlord is the petitioner in these two Civil Revision Petitions. He filed RCOP Nos. 61 and 63 of 1985 under Sec. 10(2)(i) (wilful default) and 10(2)(iii) (act of waste) of the Act respectively for eviction of the tenant. R. Balakrishnan, the respondent in both these Civil Revision Petitions. Since the landlord and the tenant in both the eviction petitions are one and the same, the Courts below passed a common order in both the eviction petitions. The landlord filed a petition for eviction, contending that the petition premises bearing door Nos. 12 and 13 was leased out to the father of the respondent on monthly rent basis. At the time of the lease, door No. 13, was having a tiled building measuring 25 20 with compound wall on four sides. Door No. 12 was having a tiled house measuring 50 25 in the west and another third house measuring 15 12 in the south east corner. The respondents father died four years back and after that the respondent had been paying the rent, However, he defaulted in payment of rent after 1.8.1983 for a period of 19 months up to February, 1985. The respondent-demolished a portion of the building few months ago. Hence, the petitions for eviction were filed on the ground of wilful default and act of waste. 3. The respondent filed a counter affidavit, mainly contending that the tenancy was only with regard to the vacant site. There was neither a tiled nor a thatched shed at the time of lease. The father of the respondent took the vacant site alone for storing timber. He became a tenant even as early as in 1955. At that time, the property was lying vacant and there was only a katcha compound. There was no building at any point of time. Only one office room was put up by the tenant with timber props and wooden provisional make shift shed is put up by the respondent. Since the lease is for vacant site alone, the provisions of the Act will not apply. The respondent never committed any acts of waste or damage, as alleged by the landlord. There was no wilful default in the payment of monthly rents by the tenant. Since the lease is for vacant site alone, the provisions of the Act will not apply. The respondent never committed any acts of waste or damage, as alleged by the landlord. There was no wilful default in the payment of monthly rents by the tenant. It is an admitted fact that Rajarathinam, father of the respondent was doing timber business. He died in the year 1981 and thereafter his son, the respondent herein was continuing the said business and was paying the monthly rent. 4. Before the Rent Controller, P.Ws. 1 to 3 were examined on the side of the landlord and the respondent/tenant examined himself as RW. 1. Exs. A1 to A18 were marked on the side of the landlord and Exs. B1 to B 20 were marked on the side of the tenant. 5. The Rent Controller dismissed both the Rent Control Petitions, by a common order, dated 23.2.1988, on the ground that even though there is no evidence that the superstructure was put up by the tenant, the landlord has not proved that the lease is with regard to the building and not for vacant site. The trial court also gave a finding that the lease was only for the vacant site and so, the Rent Control Act is not applicable to the facts of this Case. 6. The Revision Petitioner filed an Appeal before the Appellate Authority. The Appellate Authority gave a finding that the tenant has committed wilful default. However, the Appellate Authority confirmed the findings of the trial court in all other respects and dismissed the appeal. 7. The main point that arises for consideration in both these Civil Revision Petitions is whether the lease is in respect of the building, as claimed by the landlord or in respect of the vacant site and that the superstructure was put up by the tenant, as claimed by him. 8. I have been taken through the entire pleadings and the evidence let in, both oral and documentary and I have also perused the same. 9. The landlord in order to prove that the lease in respect of the building filed Exs. A5 to A9, house tax receipts, dated 10.11.1982, 5.12.1979, 10.11.1982, 27.1.1977 and 15.10.1981 respectively. 8. I have been taken through the entire pleadings and the evidence let in, both oral and documentary and I have also perused the same. 9. The landlord in order to prove that the lease in respect of the building filed Exs. A5 to A9, house tax receipts, dated 10.11.1982, 5.12.1979, 10.11.1982, 27.1.1977 and 15.10.1981 respectively. As far as Door No. 13 is concerned, prior to the lease in favour of the respondents father, one Paramasivam took the property on lease under a lease Agreement, dated 27.4.1959, which was marked as Ex. A16. Ex. A16 dated 27.4.1959 was entered into between Dr. M.R. Srinivasan, the revision petitioner herein and one Paramasivam. It is very pertinent to note that in Ex. A16, dated 27.4.1959, the respondents father, Rajarthinam has signed as a witness. In the said document, there is a mention of the existance of a Pandhal and a thatched roof in the property, which is the subject matter of the present lis . The property was leased out to the tenant Paramasivam for the purpose of carrying on furniture business. The respondent, as RW 1 has categorically admitted in his evidence that prior to his father, Paramasivam was the lessee and after him, his father took the very same property on lease. This is in respect of the property bearing Door No. 13. As far as the property bearing Door No. 12 is concerned, the sale deed, dated 30.5.1966 was marked as Ex. A17 to show the existence of a building. Ex. A17, is a registered document, dated 30.3.1966. The sale deed was executed by Sembayammal and Kuzhandaiswami Chettiar in favour of Dr. M.R. Srinivasan, the revision petitioner herein. In Ex. A.17, there is a specific mention of the existence of a thatched roof shed, a tiled shed, together with a compound wall. It is also stated in the said document that the vendors have delivered possession of the land thatched, tiled sheds (Calicut tiles) together with the compound walls. The revision petitioner also placed reliance upon Exs. A10 and A12 to show and prove the existence of the building. The building, as found, is a small one, supported by wooden planks on either side and covered with tiles. The revision petitioner also placed reliance upon Exs. A10 and A12 to show and prove the existence of the building. The building, as found, is a small one, supported by wooden planks on either side and covered with tiles. There are two walls on either side of the building and the rest of the building is only a vacant site, wherein the timber is stored, as is evident from the above exhibits. The respondent has claimed in his evidence that the superstructure was put up in the year 1985, However, he has miserably failed to prove that the superstructure was put up by him and that be did not obtain the consent of the landlord. The trial court has clearly found that the superstructure was not put up by the respondent/tenant and that there is no evidence that the respondent/tenant has put up the superstructure. Further, the trial court has also observed that the petitioner has failed to prove that the lease is with regard to the building alone and not for vacant site. I am of the view that the finding of the lower Court, as confirmed by the lower Appellate Authority, is against the evidence available in this case. As already seen, the petitioner has filed Exs A1 to A18, Exs. A10 to A12 coupled with the oral evidence clearly and satisfactorily establish the fact that the lease is only with regard to the building and not for vacant site, as claimed by the respondent/tenant. Learned counsel for the respondent Mr. M.S. Umapathi, per contra, relied on Ex. A2, reply notice, dated 10.2.1985, wherein it has been stated that superstructure was put up about four years i.e. in the year 1981 with the consent of the landlord We have already seen the finding of the trial court on this aspect, wherein it was held that there is absolutely no evidence to show that the superstructure was put up by the tenant with the consent of the landlord. This apart, the respondent clearly admits in his evidence as RW1 that he never used to pay rent without getting receipt for such payment, but none of the receipts were produced before the Court below, since there is a mention in the receipt that the rent was for the two godowns bearing Door No. 12 and 13, according to the landlord. The case as put forward by the landlord on this aspect is probable and also acceptable, in the absence of any proof for payment of rent, the Court has to necessarily presume that the tenant has wilfully withheld the rent. The lower Appellate Court though has clearly given a finding that the tenant has committed wilful default in the payment of rent, has however erroneously confirmed the finding of the Rent Controller on this aspect without ordering eviction on this ground. The description given with regard to the property bearing Door No. 13 in the RCOPs and Ex. A16 tallys with each other, even though it is contended by Mr. M.S. Umapathi that the boundary description given in Exs. A16 and A17 and in the RCOPs does not tally with each other and that therefore, they are different properties. In my opinion, the property bearing door No. 13 and the property covered under Ex. A16 are one and the same. Further, it is admitted in the evidence of RW1/tenant himself that after Paramasivams lease under Ex. A16 his father took over the property when he joined as a partner in the business of Paramasivam. During the life time of his father, he was looking after the business and the present respondent was a minor and so, he was not aware of the actual position. That apart, Exs. A5 to A9 house tax receipts also prove the existence of the building. On the other hand, as rightly contended by Mr. R. Gandhi, learned Senior Counsel for the Revision Petitioner/landlord, that the tenant has no materials to show that the superstructure was put up by him. According to the landlord, on the date of filing of the RCOPs, there was no building in the premises bearing Door No. 13 since the same was demolished by the tenant and thereby committed act of waste. Both the Courts below have concurrently found that there was no act of waste. Therefore, Mr. M.S. Umapathi, learned counsel appearing for the respondent/tenant contended that the concurrent findings of the Courts below should not be interfered with. As far as the act of waste is concerned, both the Courts below, in my opinion, have not at all considered that issue since the finding was that the lease was only for a vacant site. As far as the property in door No. 12, is concerned, Mr. As far as the act of waste is concerned, both the Courts below, in my opinion, have not at all considered that issue since the finding was that the lease was only for a vacant site. As far as the property in door No. 12, is concerned, Mr. M.S. Umapathi, learned counsel for the respondent/tenant contended that the boundry description as given in the RCOP and Ex. A17 sale deed does not tally with each other, as they are totally different properties. The landlord in his evidence has stated that this property (door No. 12) fell to his share in 1946 partition (Ex. B8) and that therefore, there could not have been a sale deed under Ex. A17 for the very same property. Hence, according to learned counsel for the respondent/tenant, the identity of the property is not established. It is further contended that in the suit O.S. No. 1049 of 1964 filed by Sembayammal in the plaint and decree copy (Exs. B10 and B11), the property description has been given as vacant site, but in Ex. A17 there is a reference about the building. So, they are different one. 10. I am unable to accept the contention of Mr. M.S. Umapathy. I have perused Ex. A17 and also the identity of the property. The boundary description clearly tallies with Ex. A17 and the RCOP. Therefore, I am of the view that the subject matter of the RCOP is a part of the property covered under Ex. A17. As far as the partition deed is concerned, it is true that the property in door No. 12 and other items fell to the share of the landlord, as evidenced by Ex. B8 partition deed. But one Sembayammal, a stranger by creating false records filed a suit against third parties giving the description of the property as vacant site. In that the landlord got himself impleaded and in the supporting affidavits, all these facts have been stated. Since the landlord wanted to settle the matter once for all, in spite of his title he got, another sale deed under Ex. A17 from the said Sembayammal and in the said document itself there is a mention that the property is under the possession of the landlord and that he has put up a superstructure. Ex. B8 was of the year 1946, whereas the subsequent documents Exs. A17 from the said Sembayammal and in the said document itself there is a mention that the property is under the possession of the landlord and that he has put up a superstructure. Ex. B8 was of the year 1946, whereas the subsequent documents Exs. A17 and A16 and the house tax receipts Exs. A5 to A9 clearly establish the existence of the building. It is submitted on behalf of the tenant that the tenant was not at all in arrears as the landlord himself admitted that there was no arrears and that therefore there was no wilful default. In the evidence of PW1, he has clearly stated about the arrears of rent and even the tenant as RW1 has also admitted the arrears and that there is a finding by the lower Appellate Court that there was wilful default which was not challenged by the tenant in these Civil Revision Petitions. Therefore, the finding of the lower Appellate Court in so far as it relates to the question of wilful default, has become final and conclusive, in so far as the tenant is concerned. It is common knowledge that unless there is a building door number will not be given and that the tax for vacant land will be shown only as vacant Land Tax and not as House Tax. 11. Mr. M.S. Umapathi, learned counsel for the respondent/tenant contended that Exs. B12 to B20 which are the ledger and chitta book were marked by the tenant and that they show that the rent was paid only for vacant site. As rightly pointed out by Mr. R. Gandhi, learned Senior counsel for the petitioner the ledgers B12 to B20 are the tenants own document and that therefore much reliance cannot be made on them. In his evidence RW1/tenant has stated that he never used to pay the rent without getting receipts for such payments. But none of the receipts which were in the possession of the tenant were produced before the Court below, since it is contended by the landlord that there is a mention in the receipt that the rent was for the two godowns in door Nos. 12 and 13. Both the Courts below could have drawn an adverse inference from the conduct of the tenant by not producing the receipts. In my opinion, the ledgers Exs. 12 and 13. Both the Courts below could have drawn an adverse inference from the conduct of the tenant by not producing the receipts. In my opinion, the ledgers Exs. B12 to B20 will be of no assistance to decide the question on issue. 12. Mr. M.S. Umapathi, learned counsel for the respondent/tenant cited a decision reported in Irani v. Chidambaram Chettiar ((1952-II-MLJ 221) to say that what the vacant land was leased out is not a “building” within the meaning of the Rent Control Act. It is the categorical case of the petitioner that he has leased out the property bearing door No. 13 having a tiled building measuring about 25 25? with a compound wall on all the four sides. With regard to the property No. 12, it is described that it is a tiled building with an extent of 50 25 in the west and 15 12 tiled building in the south east corner with a thatched shed in the remaining portion with compound walls on all the four sides. According to the respondent/tenant, there is no building either tiled or thatched in any portion of the properties, when it was leased out to the respondent/tenant. Taking all these facts into consideration, what was leased out, was the entire property, with its compound walls and with the buildings of the lessor together with the site, on which the superstructure was erected. So, the petitioner in this case has leased out not only the thatched shed, but also the vacant site. The object of the lease in this case was to run a timber business in the property in question, and as has been rightly pointed out by learned senior advocate appearing for the petitioner, the nature of the superstructures in the property in question and the manner in which the entire premises (vacant site together with compound walls on all four sides with a thatched shed) were being let out and used by the father of the respondent herein for all these years, undoubtedly indicate that it was a building that was leased to the respondent herein. A decision reported in Rajamanikam v. Ranganathan ((1995 II MLJ 139) also was cited to say that the concurrent findings of fact by both the Authorities below will not be interfered with by the High Court. A decision reported in Rajamanikam v. Ranganathan ((1995 II MLJ 139) also was cited to say that the concurrent findings of fact by both the Authorities below will not be interfered with by the High Court. He has also further cited a decision reported in Sri Raja Lakshmi Dyeing Works v. Rangaswamy (AIR 1980 SC 1253) to say that the High Court should not interfere with the concurrent finding of the lower Tribunals but the rulings of the Supreme Court and also of this Court (my Judgment in CRP. No. 2208 of 1989, dated 6.3.95) above referred to, have been rendered on the facts and circumstances of that case. In the instant case, the concurrent findings were rendered by the Courts below, based on no evidence. Both the Courts below have committed grave errors in arriving at the conclusions. Documentary evidence have not been properly construed and appreciated. Oral evidence has also not been properly appreciated at all. Therefore, in my view, the findings of both the Courts below that the building was not leased out to the respondent herein and previously to his father, are nothing but perverse. In this context, the Tribunals below have miserably failed to consider Exs. A5, A9 and Exs. A10, 16 and 17 in their proper perspective. The recitals in all the above documents clinchingly prove the existence of the building, which alone was leased out to the tenant The tenant also has miserably failed to prove that the superstructure was put up by him as claimed by him. Ex. A16, which is a crucial document to prove that the lease was in respect of the building was lost sight of by both the Courts below. Prior to the lease in favour of the respondents father, one Paramasivam took the property in question on lease under a lease agreement, dated 27.4.1959, as per the document marked as Ex. A16. It is clearly mentioned in the said document about the existence of the thatched shed and Pandhal . Further, the respondent as RW 1 has categorically admitted that prior to his father, Paramasivam was the lessee and after him, his father took the very same property on lease. All these vital factors would go to prove that the building with vacant site together with compound walls, was alone leased out to the respondent. Further, the respondent as RW 1 has categorically admitted that prior to his father, Paramasivam was the lessee and after him, his father took the very same property on lease. All these vital factors would go to prove that the building with vacant site together with compound walls, was alone leased out to the respondent. When the findings of the Courts below are perverse, this Court sitting and exercising power under Sec. 151 of the Code of Civil Procedure can very well interfere with the findings so rendered by the Courts below. In fact, it is to be noticed that under Sec. 25 of the Tamilnadu Buildings (Lease and Rent Control Act) this Court can call for and examine the records of the lower as well as the Appellate Authorities in order to satisfy itself with regard to the validity of the records. On a close scrutiny of the records, I am not satisfied with the approach made by both the Courts below in arriving at a finding that the building was not leased out to the respondent herein. 13. A decision reported in Rajeshwari Devi v. S.M. Rabi (1982-95-L.W. 290) was cited by learned Senior Counsel appearing for the revision petitioner/landlord. In that case, this Court held that what was leased out was not a mere vacant land but a premises consisting of a vacant site and a shed standing on four poles which the tenant intended to make use of as his automobile shed. To decide a question whether the premises is to be construed as a building or not coming within the ambit of Sec. 2(2) of the Act, the Court will have to consider the nature of the premises and the purpose for which it was leased out and the intention of the parties at the time of granting of lease. In this case, the nature of the premises, the purpose for which it was leased out and the intention of the parties have all been clearly proved. The premises in question is a big vacant site with compound walls on all the four sides together with a thatched shed. The property was leased out for the purpose of carrying on timber business. The premises in question is a big vacant site with compound walls on all the four sides together with a thatched shed. The property was leased out for the purpose of carrying on timber business. Therefore, all these factors clearly point out that what was leased out is a premises, that it was leased out for the purpose of carrying on timber business, being a non-residential purpose and that the petition premises falls within the ambit of Sec. 2(2) of the Act. The view taken by both the Courts below on this aspect cannot be accepted and it will have to be rejected. It cannot be held that once there is a building on the land, however insignificant, and it is let out, the case will be governed by the Rent Control Act. The fact in such cases is that the owner has a building and land and he lets them out together. The definition of the word ‘building’ is an inclusive definition bringing within its ambit house, outhouse, stable, shed, hut and every other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatever, as pointed out by the Supreme Court. The Supreme Court has further held that the word “building” must be given its ordinary, natural meaning ascribable to it including the fabric and the ground on which its stands. The definition of land also is of an inclusive one. Its accompaniments are land which is being built upon or is built upon or covered with water; benefits to arise out of land; things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street. 14. The facts and circumstances of the present case, as discussed above and for all the foregoing reasons do call for interference of this Court. Therefore, the orders of both the Courts below are set aside. Both the Civil Revision Petitions are allowed. The respondent is liable to be evicted from the premises in question. However, there will be no order as to costs.