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2001 DIGILAW 822 (MAD)

A. Mohamed Ali v. Mohamed Yaccob

2001-07-30

B.AKBAR BASHA KHADIRI

body2001
ORDER: Aggrieved by the orders passed by the Appellate Authority in R.C.A. No.14 of 1997, the respondent therein has come forward with the instant revision. 2. The revision has arisen in this way. Yaccob instituted a suit in O.S. No.92 of 1996 against the revision petitioner and another person stating that the suit property, being a hut, bearing door No.4, Raja Veedhi, Neravy in Pondicherry was leased out to the revision petitioner on a monthly rent of Rs.150 per month under an agreement dated 1.6.1994. The second defendant in the suit created a cloud over the title of the plaintiff and therefore, the second defendant was impleaded as party. 3. According to the respondent herein, the revision petitioner had committed default in payment of rent due for the month of February, 1995 onwards and, therefore, he filed the suit for delivery of possession and for recovery of rent. In that suit, the revision petitioner inter alia contended that the ground-site belonged to one Anwar and he had obtained lease of the ground from the said Anwar wherein the revision petitioner had put up a superstructure. He had also raised a contention that the plaintiff has to seek recourse to the Rent Control Act and he cannot straightaway evict the revision petitioner, as the revision petitioner is a statutory tenant. Holding that the revision petitioner is a statutory tenant, learned District Munsif dismissed the suit in O.S. No.92 of 1996. Thereafter, the respondent herein Mohammed Yaccob claiming himself to be the landlord, instituted the proceedings in R.C.O.P. No.2 of 1997 under Sec.10(2)(i) of the Pondicherry Buildings Lease and Rent Control Act, alleging that the petitioner/ tenant has committed default in payment of monthly rent right from February, 1995 which had accrued to Rs.3,450. 4. The revision petitioner/ tenant raised the same contentions which he raised in the suit stating that he had obtained lease of the vacant site from one Anwar on 27.3.1989 and that he had put up superstructure. He had further contended that the respondent/ landlord has no nexus to the property. In short, he denied the title of the landlord. 5. Learned Rent Controller, enquired into the matter and came to the conclusion that the denial of the revision petitioner/ tenant is not a bona fide denial. He had further contended that the respondent/ landlord has no nexus to the property. In short, he denied the title of the landlord. 5. Learned Rent Controller, enquired into the matter and came to the conclusion that the denial of the revision petitioner/ tenant is not a bona fide denial. The Rent Controller held that the lease deed Ex.A-1 proves the existence of landlord and tenant relationship between the respondent and the revision petitioner and on the admission of the tenant that he had not paid the rent, learned Rent Controller held that the tenant has committed wilful default in payment of rent and accordingly, ordered eviction. 6. Aggrieved by the orders passed by the learned Rent Controller, the petitioner/ tenant preferred R.C.A. No.14 of 1997 contending that the learned Rent Controller went wrong in holding that the denial of title is not bona fide. Learned Appellate Authority agreed with the findings of the learned Rent Controller and dismissed the appeal. 7. Aggrieved by the orders passed by the Appellate Authority, the tenant has come forward with the instant revision. 8. Before entering into the revision, I feel, it would be useful to recall the power vested with this Court in dealing with the revision under Sec.25 of the Pondicherry Rent Control Act. While considering the revisional powers conferred on the High Court under the Kerala Buildings Lease and Rent Control Act, 1996 which provision is in pari materia to Sec.25 of the Pondicherry Buildings Lease and Rent Control Act, in Ubaida v. Damodaran, J.T. (1999)9 S.C. 115, the Apex Court has held as under: “Though the revisional power under the Rent Act may be wider than Sec.115 of the Code of Civil Procedure it cannot be equated even with the second appellate power conferred on the Civil Court under the Code of Civil Procedure. Notwithstanding the use of the expression”propriety“in Sec.20, the revisional Court therefore will not be entitled to reappreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court in the light of the aforesaid ratio of this Court it is crystal clear that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlor/ tenant did not exist. On examining the impugned judgment of the High Court in the light of the aforesaid ratio of this Court it is crystal clear that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlor/ tenant did not exist. In the circumstances, the impugned revisional order of the High Court is wholly unsustainable.” 9. The same view has been expressed by the Apex Court in another decision T.Sivasubramaniam and others v. Kasinath Pujari and others, J.T. (1999)6 S.C. 405 and the Apex Court has held as under: “It is true that power exercisable by the High Court under Sec.25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the Courts below. But where a finding arrived at by the Courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the Courts below.” 10. Of Course, it is not as if the Courts should shut its eyes to the appraisal of fact. When the factual materials are transgressed and there had been misconception of principles to be applied, the Court cannot shut its eyes by shirking its jurisdiction of revision to cancel such improper and illegal decision. This has been pointed out by my brother Judge M.Karpagavinayagam, J., in T.V.Jagatrakshagan v. Futaree Bai, (1999)3 M.L.J. 303 , “It is true that concurrent findings based on evidence shall not be interfered with by his Court, exercising jurisdiction under Sec.25 of the Act. It is not the concurrent finding on facts, but both the authorities below by overlooking the factual materials transgressed the governing principles relating to the bona fide requirement and there is a misconception of the principles to be applied, taking into consideration the relevant factors. Under such circumstances, this Court cannot shut its eye by shirking its jurisdiction of revision to cancel such improper and illegal decisions. Under such circumstances, this Court cannot shut its eye by shirking its jurisdiction of revision to cancel such improper and illegal decisions. When both the authorities below have ignored the provisions of law and have been too technical in interpreting the Sections so as to deny the landlord the benefit of getting an order of eviction, the same has to be necessarily rectified in revision, especially, as the revisional jurisdiction is only intended to correct the illegality committed by the authorities below both by misunderstanding the law and also by misinterpreting the evidence available on record.” It thus follows that this Court should not interfere with the findings on the fact merely because it does not agree with the findings of the lower authorities while exercising the revisional jurisdiction and reappraisal of evidence can be made. But that should be for limited purpose to ascertain whether the conclusion arrived at by the trial Court is wholly unreasonable but the revisional Court in reappraising the evidence will not be entitled to substitute its own conclusion in place of the conclusion of the appellate authority. 11. Let us look at the evidence and the appreciation of the facts by the Courts below. It is the case of the respondent that he is the landlord of both sites and the superstructure. The revision petitioner admits that he is a tenant. But he would plead that he became the tenant of the vacant site under one Anwar and that he had put up superstructure. As rightly pointed out by both the Courts below there is no evidence to establish that the superstructure was put up by the revision petitioner. Ex.A-1 lease deed refers to The question is whether Ex.A-1 would refer to the superstructure alone or the site also. So far as the site is concerned, the revision petitioner denies the title of the landlord. It is pertinent to note that he does not set up title in himself. A superstructure cannot hang in the air, it has to be seated on site. Normally, the site where the superstructure is situate belongs to owner of the superstructrue. In the instant case the revision petitioner is not setting up title in himself. But, he sets up title in a third party, namely Anwar. In other words, he has invoked the doctrine of jus tertii. Normally, the site where the superstructure is situate belongs to owner of the superstructrue. In the instant case the revision petitioner is not setting up title in himself. But, he sets up title in a third party, namely Anwar. In other words, he has invoked the doctrine of jus tertii. The question whether a tenant can set up the plea of jus tertii and deny the title of a landlord and whether such denial would be a bona fide denial. This question came up for consideration before His Lordship Ramprasad Rao, Chief Justice, as he then was, in the decision reported in V.Vatsala v. Official Assignee of Madras, 1992 L.W. 126, the Honourable Judge has held as follows: “The question that arises in the instant case is whether such a denial as contemplated under the second proviso to Sec.10(1) has arisen. The proviso is very clear when it says that the tenant should deny the title of the landlord. It does not say that the tenant can vest the title to the property in his occupation in third parties. This is the concept which is inherent in the principle of jus tertii. It is only in cases where the tenant while opposing an application for eviction under the provisions of Act 18 of 1960, sets up title in himself or herself the second proviso would come into operation and it is in that context alone the Rent Controller would have jurisdiction to find whether the denial of title of the landlord and the setting up of such title in himself or herself by the tenant is”bona fide“or”not“. It is not open to the tenant to plead, taking advantage of the plain language of the second proviso to Sec.10(1), that the denial as regards the title of the landlord might even mean and include the vesting of the title to the property in a third party. On the other hand, such denial of title of the landlord would be the resultant of a claiming of title in the property by the tenant herself or himself and not by setting up title in a third party.” 12. It would be thus evident that the revision petitioner cannot set up title in a third party. Even otherwise, the revision petitioner had not examined the third party in whom he sets up title. It would be thus evident that the revision petitioner cannot set up title in a third party. Even otherwise, the revision petitioner had not examined the third party in whom he sets up title. He had produced Exs.X-2 and X-3 documents to show that his name has been entered in the Commune Register as a tenant. If what the revision petitioner contends is true, in Exs.X-2 and X-3, the said Anwar’s name should find a place in the column owner and not the name of Kamaludeen, who is said to be a co-owner with the respondent/ landlord. His claim of title in third person by name Anwar will be of no avail to him. 13. Even with respect to the superstructure, the revision petitioner had denied the execution of Ex.A-1 lease deed. Both the Courts below have compared his signature in Ex.A-1 with admitted signature in Ex.A-4 and came to the conclusion that Ex.A-1 bears the genuine signature of the revision petitioner. Though much arguments were advanced whether the comparison of signature under Sec.73 of the Evidence Act would be conclusive evidence, time and again, the Courts have held that comparison of signature by the Courts under Sec.73 of the Act, has greater evidenciary value than comparison of signature by an handwriting expert, under Sec.45 of the Act. It is needless to point out that basing a conclusion of comparison of signature is hazardous but there should be corroborative piece of evidence. In the instant case, one of the attestors to Ex.A-1 has been examined. He has stated that he has subscribed his signature in Ex.A-1 at the instance of the revision petitioner. Further, the evidence of P.W.1 himself is available as corroborative piece of evidence. Thus, from Ex.A-1 it is clear that the superstructure belonged to the respondent and so far as the ground is concerned, the title set up by the respondent is not bona fide. Both the Courts below have come to the right conclusion after analysing the evidence placed before them. 14. The re-appraisal of the evidence by me would only lead to the same conclusion. There is nothing to show that the Courts below have overlooked the factual materials or transgressed the governing principles relating to bona fides. There is also no misconception of the principles to be applied. 14. The re-appraisal of the evidence by me would only lead to the same conclusion. There is nothing to show that the Courts below have overlooked the factual materials or transgressed the governing principles relating to bona fides. There is also no misconception of the principles to be applied. They have rightly come to the conclusion that the denial by the revision petitioner is not bona fide. In that view of the matter, I am inclined to dismiss the revision with costs of the respondent/ landlord. Consequently, connected C.M.P. is also dismissed.