Kannammal v. Joseph Sam and others — 1997 DIGILAW 650 (MAD)

Judgment : Second respondent in R.C.O.P. No.4229 of 1982, on the file of IX Judge, Court of Small Causes at Madras (Rent Controller) is the revision petitioner. 2. Eviction petition was filed by first respondent herein on two grounds, namely, (1) that the first respondent, who is the sole tenant of the schedule premises, has committed wilful default in payment of rent; and (2) he has also unauthorisedly sub-let the building to respondents 2 to 6. During the pendency of the proceeding, the original tenant died and his legal representatives have been impleaded as respondents 7 to 11. It is said that the (deceased) tenant committed wilful default in payment of rent from 12. 1952 onwards, though he restricted his claim for the period from 10. 1960 to 37. 1982. This, according to the landlord, is wilful and wanton default, which makes the tenant liable to be evicted from the building. It is said that there is no written consent from the landlord to sub-let the building, and the occupation of respondents 2 to 6 is exclusive and amounts to unauthorised sub-letting. Even when notice was issued to the tenant, it was returned as no such addressee. Copies of notice were also sent to the alleged subtenants, and some of them refused to accept the same. 3. Second respondent, i.e., the revision petitioner herein, in her counter, submitted that she is not a sublessee, and that she has been in possession for more than 30 years without disturbance. She said that the superstructure belongs to her and she put up the schedule building 30years ago. It is said that she has improved the site, and, after levelling the same, has put up the structure. It is her case that there was no sublease at all. She said that originally there was a mud wall and later it was converted into a brick wall. The building was destroyed in fire in 1969, and the revision petitioner received financial assistance from the local Tahsildar and reconstructed the same. It is said that the second respondent is neither a sub-tenant of the first respondent and, therefore, she is not liable to be evicted. She also pleaded that her title is barred by limitation and adverse possession. 4. In the counter statement filed by 5th respondent, he said that he came into possession in the year 1960. It is said that the second respondent is neither a sub-tenant of the first respondent and, therefore, she is not liable to be evicted. She also pleaded that her title is barred by limitation and adverse possession. 4. In the counter statement filed by 5th respondent, he said that he came into possession in the year 1960. He believed the statement of the first respondent that he was empowered to sub-lease the building, and authority was given to him by deceased tenant himself. After the death of the original tenant, his legal representatives did not come and collect the rent. He said that he is ready to pay the rent to whomever he is liable to pay. He is a bona fide occupant of the building. .5. In the counter statement filed by 6th respondent, he said that he is a direct tenant under the 2nd respondent, who is the owner of the superstructure. 6. On the above pleadings, the Rent Controller took oral and documentary evidence, and, as per order dated 24. 1978, he came to the conclusion that grounds have been made out for eviction. He came to the conclusion that respondents 2 to 6 are only subtenants under the deceased tenant N.Ganesan, and at present respondents 7 to 12. He further came to the conclusion that there was wilful default in payment of rent. Eviction was ordered. 7. Against the said order, appeal was filed by the revision petitioner herein in R.C.A. No.314 of 1988 before the Appellate Authority. The Appellate Authority also dismissed the appeal and confirmed all the findings of the Rent Controller. It is against the concurrent orders of the authorities below, the present revision is preferred. 8. The revision petitioner has also filed C.M.R No.4545 of 1997 to receive additional evidence. In the affidavit filed in support of the application, she contended that the schedule premises has now been declared as slum area and, therefore, without the permission of the authorities under the Tamil Nadu Slum Areas (Improvement and Clearance) Act (XI of 1971), the eviction petition is not maintainable. The revision petitioner seeks permission to adduce additional evidence in revision. A photostat copy of the said notification is also filed along with the affidavit. 9. Landlord has filed serious objection for receiving the additional evidence. 10. To will consider the C.M.P in the later portion of this order. 11. The revision petitioner seeks permission to adduce additional evidence in revision. A photostat copy of the said notification is also filed along with the affidavit. 9. Landlord has filed serious objection for receiving the additional evidence. 10. To will consider the C.M.P in the later portion of this order. 11. Even though in the revision, the legal heirs of the original tenant were also impleaded as party respondents, on 13. 1997, learned counsel for revision petitioner submitted that he is giving up respondents 2 to 11 from the party array. That means the leral heirs of the original tenant are no more parties to this revision. Even the subtenants were also removed from the party array. According me, the removal of the legal heirs of the original tenant affects the very maintainability of the revision. .12. In this case, the question that has to be considered is whether the revision petitioner is a sub-tenant and whether the landlord or the deceased tenant had right over the building. Both the authorities below have held that the possession or occupation of the revision petitioner is only under the deceased tenant and not on their own. In this revision, when the same is agitated, without the legal heirs of Ganesan the same cannot be proceeded with. It is a right between the landlord, the legal heirs of the deceased tenant and the revision petitioner. In such a case removing the legal heirs of the deceased tenant from the party array materially affects the maintainability. Without them on the party array, the right of the revision petitioner cannot be decided. So far as the tenant is concerned, it has been declared that late Ganesan is the tenant who is now substituted by his legal heirs. When that right is declared and has become final, the present revision petition cannot be proceeded with. That itself is sufficient to dismiss the revision. 13. In fact, learned counsel for the revision petitioner did not argue on the findings entered by the Rent Controller as well as the Appellate Authority. Probably it is because of the removal of the legal heirs of the deceased tenant, he did not challenge the legality of the concurrent findings of the authorities below. 14. 13. In fact, learned counsel for the revision petitioner did not argue on the findings entered by the Rent Controller as well as the Appellate Authority. Probably it is because of the removal of the legal heirs of the deceased tenant, he did not challenge the legality of the concurrent findings of the authorities below. 14. What remains to be considered is, what is the scope of the C.M.P., and whether the revision petitioner is entitled to put forward his contention that the eviction petition is not maintainable. 15. Learned counsel relied on the decision reported in Parthasarathy v. Kuppammal, (1980)2 M.L.J. 83, wherein a Division Bench of this Courtheld that when a land is declared as slum area, institution of eviction proceedings and the actual eviction can only be with the previous permission of the Slum Clearance Board. In the Bench decision of this Court, it was held that prior permission should be obtained before institution of the proceedings for evicting the occupant of any building, and, if decree had been passed before the enforcement of the Act, execution must be after obtaining permission from the Authorities concerned under the Slum Areas (Improvement and Clearance) Act, 1971. 16.Learned counsel for revision petitioner submitted that since no sanction has been obtained for evicting the occupant, the very maintainability of the revision petition could be canvassed in revision. 17. The said contention is seriously opposed by the landlord. In the counter statement, it is stated that the revision petitioner is only a sub-tenant and that finding has become final. Even though the alleged Notification is of the year 1972 and the eviction petition was filed only in the year 1982, the non-production of the Notification and not taking a defence of that nature, precludes the revision petitioner from agitating the same in revision. Learned counsel further submitted that in revision, additional evidence cannot be let in unless the legality, propriety and regularity of the impugned Order could be decided on the materials on record. Learned counsel submitted that only for considering the legality, propriety or regularity of the impugned Order, fresh evidence could be recorded, if at all the same could be adduced. Since no argument has been put forward challenging the concurrent findings of the Authorities below, fresh evidence has nothing to do with the scope of the revi- sion. Learned counsel submitted that only for considering the legality, propriety or regularity of the impugned Order, fresh evidence could be recorded, if at all the same could be adduced. Since no argument has been put forward challenging the concurrent findings of the Authorities below, fresh evidence has nothing to do with the scope of the revi- sion. He further said that when the revision petition itself is not maintainable, adducing fresh evidence in revision cannot also be allowed. Further, the benefit of notification even if it is only to the tenant in occupation and not to a sub-tenant. According to me, the contention of learned counsel for the landlord has to be accepted. 18. The revision petitioner is only a sub-tenant and, as I have said earlier, the findings regarding unauthorised sub-letting and wilful default in payment of rent by the tenant have not been challenged before this Court. That means, the order of eviction passed as against the tenant has now become final. 19. Even though the question of sub-tenancy is challenged in this revision petition, learned counsel for the revision petitioner did not challenge the same at the time of arguments. Once he is not challenging the finding of sub-tenancy, the revision petition is not maintainable, and she cannot be considered as a person aggrieved by the Orders of the Authorities below. In Rupchand v. Raghuvanshi, A.I.R. 1964 S.C. 1889: (1965)2 S.C.J. 584, their Lordship held thus: “...It is clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.” Likewise, in Narayan v. Kalan Bcti, A.I.R. 1986 Raj. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.” Likewise, in Narayan v. Kalan Bcti, A.I.R. 1986 Raj. 52, it was held that ‘since there was no privity between the landlord and sub-tenant, he has no authority to challenge the decree of eviction passed against the tenant-in-chief’. Under the Tamil Nadu Buildings (Lease and Rent Control) Act also, eviction order passed against the tenant binds the sub-tenant also, even if he is not made a party. 20. In the decision reported in Varghese Ittoop v. District Judge, (1991)2 K.L.T. 394, a question came for consideration as to whether a sub-tenant is entitled to prefer an appeal or revision, in cases where the subtenancy is not challenged. In that case, the learned Judge held that a sub-tenant is not having an independent right of his own and his right is subject to the right of the tenant. If he has no independent right, he cannot contend that the order of eviction passed against the main tenant is not binding on him. Learned Judge further said that a sub-tenant is like a tenant under mortgage whose right is also co-terminus with that of the mortgagee. In that case, it was held thus: “Under the Kerala Buildings (Lease and Rent Control) Act, the sub-tenant is excluded from the definition of tenant. The order passed against the tenant is binding on the subtenant. The position of the sub-tenant who came into possession of the premises without the consent of the landlord is akin to that of a tenant inducted by mortgagee. Merely because he is made a formal party to the proceedings for eviction it does not clothe him with the right to challenge the order of eviction passed in favour of the landlord against the principal tenant. The sub-tenant cannot be construed as a person aggrieved against such an order. Different considerations may arise if the question of sub-lease itself is a matter of adjudication and the eviction is sought under Sec.ll(4)(2) i.e., unauthorised sub-lease. Respondents 4 to 7 have no case that the landlord permitted them to occupy the building. The sub-tenant cannot be construed as a person aggrieved against such an order. Different considerations may arise if the question of sub-lease itself is a matter of adjudication and the eviction is sought under Sec.ll(4)(2) i.e., unauthorised sub-lease. Respondents 4 to 7 have no case that the landlord permitted them to occupy the building. Under that circumstance they were not entitled to challenge the order of eviction passed and the revision filed by them was not maintainable.” In view of the said decision, and when the question of sub-tenancy is not challenged before me, I hold that the revision itself is not maintainable and the revision petitioner is not an aggrieved person. As I said already, in the very same decision, it has been held that a sub-tenant is a person who is declared to have no independent right. That means, the right which he could claim is independent of others or not dependent on the right of another person. Under the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971, eviction must be against the occupant who has an independent claim. He must have an independent right to occupy the building. If it is subject to claim of another person, I do not think the revision petitioner cannot claim himself as an occupant. His rights are subject to the rights of the deceased. If that be so, even if there is any notification, the petitioner will not be entitled to any benefit thereunder. In this case, it is not the eviction of the sub-tenant that is questioned, though the consequence will be dispossession of the sub-tenant also. Eviction petition is filed only to evict the tenant, and naturally, when the tenant is evicted, all persons claiming under him are also dispossessed. It. is really the eviction of the tenant that is contemplated under the Rent Control Act. If the tenant is evicted, the right of the revision petitioner also has to terminate, in view of the provisions under the Rent Control Act. 21. Being a copy of public document, I do not think there could be any serious objection for receiving the notification as additional evidence. Accordingly, the C.M.P. is allowed. If the tenant is evicted, the right of the revision petitioner also has to terminate, in view of the provisions under the Rent Control Act. 21. Being a copy of public document, I do not think there could be any serious objection for receiving the notification as additional evidence. Accordingly, the C.M.P. is allowed. But, in spite of allowing the additional evidence, I hold that the revision petitioner is not entitled to any benefit, since, when the order of eviction passed against the tenant is held valid, it is binding on the sub-tenant also. 22. In the result, the revision petition is dismissed with costs. C.M.P. No.4545 of 1997 is allowed. No costs.