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2000 DIGILAW 119 (MAD)

E. Annamalai v. S. Nizar Ahamad

2000-01-31

S.S.SUBRAMANI

body2000
Judgment : Landlord in R.C.O.P. No.14 of 1987, on the file of Rent Controller, Tirupattur, is the revision petitioners. 2. Schedule building originally belonged to one Viswanathan and Annamalai, and respondent therein became their tenant from 7. 1981 on a monthly rent of Rs.75. He has also paid a sum of Rs.7,000 as advance. The tenancy was for a period of three years. The revision petitionre purchased the schedule premises on 28. 1986 and he became the absolute owner. Respondent herein attorned the tenancy and is paying the rent at the same rate with effect from 9. 1986. Landlord claimed eviction of the tenant on the ground that he wanted the building for his own occupation. According to him, he is running soda and ice factory in Door No.41, Annamalai Road,Vaniampadi, for the last three years. The building absolutely belonged to their father. The petitioner was doing the said business from 1982, agreeing to pay a monthly rent of Rs.75 to his father. A rental agreement was also entered between him and his father. Petitioner wanted to occupy his own building for his requirement. It is also said that misunderstanding arose between himself and the members of his family, and that is also a reason why he wanted to shift to his own building. A registered notice was issued to the tenant on 1. 1987 setting forth the above facts, for which the tenant sent a reply refusing to vacate. According to the landlord, he is not owning any other property except the schedule building. He has also denied that he is a member of a joint Hindu family. Petitioner/landlords younger brother has taken a shop at Kaderpet Mosque and he is doing his own business, though the father has given him financial assistance. Petitioner/landlord, therefore prayed that he must be granted a decree to take possession of the building in question from the tenant. 3. In the counter statement filed by tenant, rental arrangement with the petitioner is admitted. According to him, the soda and ice factory conducted at Door No.49, C.N.Annadurai Road,Kaderpet,Vaniampadi is not the business of petitioner, but it is the joint Hindu family business, of which petitioner is also a member. According to him, all these businesses are run only by the family. The contention that the petitioner is a tenant under his father, is denied. According to him, the soda and ice factory conducted at Door No.49, C.N.Annadurai Road,Kaderpet,Vaniampadi is not the business of petitioner, but it is the joint Hindu family business, of which petitioner is also a member. According to him, all these businesses are run only by the family. The contention that the petitioner is a tenant under his father, is denied. It is also said that the petitioner also purchased a vacant site for the purpose of constructing a shop and he is owning other shops also. Since it is a joint family business, and the petitioner is having the business in the joint family building, the present petition for eviction is not maintainable. 4. On the above pleadings, the Rent Controller, after taking oral and documentary evidence, held that the petitioner landlords claim is bona fide. Relying on Ex.A-3 and A-5, the Rent Controller found that the petitioner/landlord is doing his own business and the same is now housed at Door No.49, C.N.Annadurai Road, which belonged to the petitioners father. Ex.A-5 is a licence issued in the name of petitioner to do business, and Ex.A-3 is a rent deed executed by petitioner in favour of his father. It was found by the Rent Controller that the claim of the landlord is bona fide and genuine, when the landlord has no other building of his own. 5. Aggrieved by the judgment, the tenant preferred appeal in R.C.A.No.1 of 1995, on the file of Appellate Authority (Sub Judge), Tirupattur. The Appellate Authority reconsidered the entire evidence and came to the conclusion that the landlord is doing only joint family business along with his family members, and Door No.49 is a family asset. The Appellate Authority held that once the landlord is found to be owning a building though along with other members of the family, his claim for eviction cannot be sustained. The Appellate Authority also held that Door No.51 is a new building constructed, and his younger brother is doing business therein. The Appellate Authority held that the claim of the landlord is not bona fide. The eviction petition was dismissed. The said decision is challenged in this revision. 6. The Appellate Authority also held that Door No.51 is a new building constructed, and his younger brother is doing business therein. The Appellate Authority held that the claim of the landlord is not bona fide. The eviction petition was dismissed. The said decision is challenged in this revision. 6. Under Sec.10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the landlord is allowed to get possession of a non-residential building if he proves that he is not occupying a nonresidential building in the City, Town or village concerned which is his own. The schedule building admittedly belong to the petitioner. The tenant is also paying rent only to the petitioner. The Appellate Authority held that since the building bearing Door No.49, C.N.Annadurai Road is owned by the family, and since the petitioner is also doing the family business, he is disqualified from getting possession of the building in question. If the disqualification as found by the Appellate Authority is not correct, and the same is removed, it is admitted that the claim of the landlord is bona fide. 7. In the Andhra Pradesh Buildings (Lease and Rent and Eviction) Control Act, 1960, there is a similar provision under Sec.10(3) (a) (iii) of that Act which reads thus: (Relevant portion) “10. 7. In the Andhra Pradesh Buildings (Lease and Rent and Eviction) Control Act, 1960, there is a similar provision under Sec.10(3) (a) (iii) of that Act which reads thus: (Relevant portion) “10. Eviction of tenants: (1) - (2) **** (3) (a) A landlord may subject to the provisions of clause (d), apply to the controller for an order directing the tenant to put the landlord in possession of the building (i) (ii) * * * * (iii) in case it is any other non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise - .(a) for the purpose of a business which he is carrying on, on the date of the application; or .(b) for the purpose of a business which in the opinion of the controller, the landlord bona fide proposes to commence; Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered: Provided further that, where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this clause - .(i) in case he has obtained possession of a residential building, for possession of another residential building of his own; .(ii) in case he has obtained possession of a non-residential building, for possession of another nonresidential building of his own.” In the case in Boorgu Jagadesh Waraiah & Sons v. Pushpa Trading Boorgu Jagadesh Waraiah & Sons v. Pushpa Trading Boorgu Jagadesh Waraiah & Sons v. Pushpa Trading [1998] 5 S.C.C. 572 which is a case under the Andhra Pradesh Act, the landlord who was in possession of a nonresidential premises filed a petition for eviction of a building in the possession of a tenant on the ground that the non-residential building in his possession is not sufficient and suitable for textile and cloth business carried on by him since the building in which he was carrying on the business was situated in a locality where textiles business was not in vogue. The Honourable Andhra Pradesh High Court declined to pass an order in favour of the landlord on the ground that the landlord is in possession of another non-residential premises. For the said purpose, the Andhra Pradesh High Court relied on a decision D.Devaji v. K.Sudarshana Rao D.Devaji v. K.Sudarshana Rao D.Devaji v. K.Sudarshana Rao (1994)1 S.C.C. (Supp.) 729. The matter was taken before the Honourable Supreme Court, and their Lordships of the Honourable Supreme Court have extracted the observation made in Devajis case, which is as follows: “The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature thereby is clear that a landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover possession of another non-residential building belonging to him by evicting the tenants therefrom.” The aforesaid observation in , (1994)1 S.C.C. (Supp.) 729 was doubted by a three Bench of the Honourable Supreme Court in the decision Boorgu Jagadeshwarath & Sons v. Pushpa Trading [1998] 5 S.C.C. 572 and it was held thus: “The aspects of quality, size and suitability of the building have been totally put out of consideration. We think this would frustrate the purpose of the Act. Here was a claim set up by the landlord that the non-residential premises he owned did not serve the purpose of his need of setting up a textile and cloth business and that the need could only be met in seeking eviction of the tenant from the premises sought. As we view it there is no difficulty in D.Devaji case,(1994)1 S.C.C. (Supp.) 729, standing in the way of the landlord appellant to have the issue examined from the point of view which would carry out the purposes of the Act. We refrain from mentioning any facts on the basis of which the landlords claim is based lest the manner they are recounted cause prejudice to either of the parties.” 8. In this case, the petitioner has stated that the building bearing Door No.49, C.N.Annadurai Street belongs to his father alone and the business that is conducted therein belongs to him. We refrain from mentioning any facts on the basis of which the landlords claim is based lest the manner they are recounted cause prejudice to either of the parties.” 8. In this case, the petitioner has stated that the building bearing Door No.49, C.N.Annadurai Street belongs to his father alone and the business that is conducted therein belongs to him. Ex.A-5 shows that he has obtained licence for doing business at Door No.49. It is admitted that the father is alive. If it is a joint family business, the licence can be only in the name of the father, as the head of the family. So, by taking licence under Ex.A-5, it is clear that it is the petitioner who is doing business at Door No.49. No document is produced by tenant to show that the family is doing the business. 9. An argument was taken before the Appellate Authority that the building where the business is run is a joint family house, and when the father and son are not divided, the business also must be taken as a joint family business. It has come out in evidence that in Door No.51, his brother is doing a similar business after obtaining licence in his own name. Even though D.W.2 says that is also part of the joint family business, no materials were placed before the Appellate Authority to hold that it is a family business. Merely because there is no division by metes and bounds, it cannot be inferred that a business run by a member of the family is a joint family business. 10. As stated earlier, the case of the petitioner is that Door No.49 belongs to his father. The tenant cannot say whether the building belongs to petitioner or it belongs to the joint family. The Appellate Authority held that no document has been produced regarding the title of Door No.49 and when the family is joint, it has to be taken that Door No.49 is a joint family property. According to me, the approach of the Appellate Authority is not correct. When the petitioner alleges that it is not his building, and it is a building of his father, it is an admission against his own interest. The Appellate Authority has not considered this point while holding that it is a joint family building. The tenant was making some allegation without any document. When the petitioner alleges that it is not his building, and it is a building of his father, it is an admission against his own interest. The Appellate Authority has not considered this point while holding that it is a joint family building. The tenant was making some allegation without any document. When the licence is admittedly in the name of the son and he is doing business in a premises, it is for the tenant to prove that it is a joint family business. When the petitioner was also making an allegation against his own interest, that Door No.49 does not belong to him and he is only a tenant under his father, the Appellate Authority should not have acted on a mere claim put forward by the tenant and the oral evidence of R.W.2. 11. Assuming for arguments sake that the building Door No.49 belongs to the family, what are the consequencese In view of the decision of the Honourable Supreme Court cited supra, the landlord would be entitled to get an order of eviction. The landlord cannot say that the building Door No.49 belongs to him solely as his own. So long as it is a joint family property, the building belongs to the family of which he is only a member. The ownership vests with the family. Even if we accept the contention that a joint family building can be considered as his own, in view of the decision of the Honourable Supreme Court, the landlord can claim eviction on the ground that he wants to do business in his own building. The case of the petitioner is that misunderstanding arose between father and the son, and the petitioner wanted to occupy his own building. When the ‘kartha’ of the joint family does not want the son to do business in the building, the petitioner can very well seek eviction of the tenant on the ground that the building in which he is doing business is not suitable for his business. Suitability does not depend upon the area of the business, or convenience. If it becomes impracticable for the landlord to continue the business, in which he has got a share, the building becomes unsuitable for his business. When the legal conclusion arrived at by the Appellate Authority is not correct, that will be a ground for interference under Sec.25 of the Rent Control Act. If it becomes impracticable for the landlord to continue the business, in which he has got a share, the building becomes unsuitable for his business. When the legal conclusion arrived at by the Appellate Authority is not correct, that will be a ground for interference under Sec.25 of the Rent Control Act. The petitioner has proved the other ingredients underSec.10(3) (a) (ii) of the Rent Control Act. In view of Ex.A-5, it could be seen that the landlord/petitioner is carrying on business in some other building, and he wants to carry on that business in the schedule premises. When a person wants to occupy his own premises for the purpose of his business, a presumption of genuineness is inherent in such cases. The judgment of the Appellate Authority is, therefore, set aside and that of the Rent Controller is restored. 12. In the result, the civil revision petition is allowed, and there will be an order of eviction as prayed for. No costs.