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2005 DIGILAW 1419 (MAD)

Murugesan Muthiriar v. Saraswathi Ammal

2005-08-24

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Section 25 of Act 18 of 69 as amended Act 25 of 1973 against the order dated 14.03.1997 passed by the Appellate Authority (Sub Judge) Kulithalai in R.C.A.No.4 of 1995, confirming the order dated 22.04.1991 passed by the Rent Controller (District Munsif) Musiri in R.C.O.P.No.3 of 1989, as stated therein.) This Civil Revision Petition arises out of the order dated 14.03.1997 passed by the Appellate Authority (Sub Judge) Kulithalai in R.C.A.No.4 of 1995, confirming the order dated 22.04.1991 passed by the Rent Controller (District Munsif) Musiri in R.C.O.P.No.3 of 1989, ordering Eviction under Section 10(2)(i) and 10(2)(b)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The Tenant is the Revision Petitioner. 2. To avoid any mistaken reference, the parties are referred to as per their original rank in R.C.O.P.No.3 of 1989. 3. The Petitioner / Landlady is the Owner of the Demised Premises – bearing Door No.56-B, Kattuputhur Village. The Petitioner has purchased the Property by a Registered Sale Deed dated 27.01.1984. The Respondent became a Tenant of the Building at a monthly rent of Rs.5/- payable on the First of succeeding English calendar month. The Respondent / Tenant was a chronic defaulter in payment of rent. Inspite of repeated demands, he had been persisting in the non-payment of rent. Since the default is wilful, the Petitioner / Landlady had earlier filed a Suit in O.S.No.103 of 1985. In the said Suit, the Respondent / Tenant denied the Title of the Petitioner and claimed right over the Supre structure. The Suit in O.S.No.103 of 1985 was decreed, against which the Respondent / Tenant went on Appeal before the District Court, Tiruchirappalli. In A.S.No.409 of 1987, the District Judge, Tiruchirappalli has allowed the Appeal finding that only Rent Control Petition is to be filed. Accordingly, the Petitioner / Landlady has filed Petition for Eviction under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as "the Act") for Wilful Default, under Sec.10(2)(b)(vii) of the Act for wilful denial of Petitioner's Title, under Sec.10(3)(a)(i) of the Act for requirement of the same for her own occupation. 4. The Eviction Petition was resisted by the Respondent / Tenant that he had become Tenant of the Ground from the previous owner Thiyagarajan in the year 1962. 4. The Eviction Petition was resisted by the Respondent / Tenant that he had become Tenant of the Ground from the previous owner Thiyagarajan in the year 1962. The Respondent / Tenant has spent more than Rs.10,000/- for putting up the super structure. The Respondent has maintained Accounts for the construction of the Superstructure. The Respondent / Tenant is not liable to pay the rent for the Building. He has been regularly paying the rent of Rs.5/- per month for the ground, which he had taken on lease. Since the Petitioner / Landlady had refused to receive the rent, the Respondent / Tenant has filed the Lodgment Schedule for depositing the arrears of rent from 01.10.1987 to 30.12.1989 – for 27 months. Since there is no wilful default, the Petitioner / Landlady is not entitled to seek for Eviction. 5. The Parties have adduced oral and documentary evidence. Upon consideration of the evidence adduced, the Rent Controller found that after the Judgment in O.S.No.103 of 1985, the Respondent / Tenant has not paid any rent. Referring to the evidence of P.Ws.2 to 4, it was held that their evidence would not establish the construction of Superstructure by the Respondent / Tenant. Their oral evidence was disbelieved by the Courts below regarding the defence that the Respondent / Tenant had put up the superstructure. Mainly referring to the recitals in Ex.P.3-Sale Deed, the Rent Controller found that the Petitioner / Landlady had purchased the property with the thatched shed thereon. 6. Learned Rent Controller ordered Eviction on the ground of Wilful default and denial of Title. The Appellate Authority confirmed the findings and the Eviction order passed by the Rent Controller. Pointing out the contradictory plea adopted by the Respondent / Tenant, the Rent Control Appellate Authority held that such contradictory stand cannot be adopted. The contention raised by the Respondent / Tenant regarding Exs.A.1 to A.4 was negatived by the Appellate Authority. Observing that no material had been produced by the Respondent / Defendant showing the payment of rent, the Appellate Authority confirmed the order of Eviction passed by the Rent Controller. 7. Aggrieved over the order of Eviction and the concurrent findings of the Courts below, the Tenant has preferred this Civil Revision Petition. Observing that no material had been produced by the Respondent / Defendant showing the payment of rent, the Appellate Authority confirmed the order of Eviction passed by the Rent Controller. 7. Aggrieved over the order of Eviction and the concurrent findings of the Courts below, the Tenant has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has contended that the Courts below have failed to consider that the Respondent / Tenant had taken only the site and the oral evidence adduced by the Respondent was not properly appreciated. 8. Countering the arguments, learned counsel for the Respondent / Landlady has drawn the attention of the Court to the double stand adopted by the Petitioner / Respondent in the Suit and in the Rent Control Proceedings. Submitting that even the meagre rent of Rs.5/- per month was not paid, learned counsel for the Respondent / Landlady has contended that on the evidence on record, the Courts below have rightly found that the superstructure belonged to the Landlady and the denial is not bonafide. Submitting that the default in payment of rent is wilful, learned counsel for the Respondent / Landlady has contended that the findings of the Courts below are neither erroneous nor perverse calling for interference in this Revision Petition. 9. The following points arise for consideration in this Civil Revision Petition: i.Whether the denial of Title (of Superstructure) is bonafide and whether the Respondent / Tenant is right in contending that he has put up the superstructure? ii.Whether the Respondent / Tenant is proved to have committed wilful default? iii.Whether the concurrent findings of the Courts below are perverse and unreasonable warranting interference? 10. The Demised Property relates to Residential House in D.No.56/B, Kudiyiruppu Natham Site, Bagavathi Amman Koil Street, Kattuputhur Village, Musiri Taluk. There is denial of Landlord - Tenancy particularly of the Building. Earlier, the Petitioner / Landlady has filed O.S.No.103 of 1985 on the file of District Munsif Court, Karur. In the said Suit, the Respondent / Tenant has contended that the Suit is not maintainable and that Rent Control Original Petition only is to be filed. The said Suit O.S.No.103 of 1985 was decreed and the learned District Munsif recorded a finding that the Petitioner / Landlady is the owner of the Superstructure and rejected the contention of the Respondent that he had put up the superstructure. The said Suit O.S.No.103 of 1985 was decreed and the learned District Munsif recorded a finding that the Petitioner / Landlady is the owner of the Superstructure and rejected the contention of the Respondent that he had put up the superstructure. He was also found to be in arrears of rent of Rs.65/-. As against the Judgment in O.S.No.103 of 1985, the Respondent / Tenant has preferred A.S.No.409 of 1987 on the file of District Court, Tiruchirappalli. In the Appeal, the Respondent / Tenant raised strong objection regarding the maintainability of the Suit, contending that only the Rent Control Petition ought to have been filed and the Suit is not maintainable. Accepting the contention, learned Additional District Judge has held "...Suit itself is not a maintainable one as per the provisions of Act 18/1960. Since Act 18/60 is a special enactment conferring certain rights to tenants in occupation of buildings covered under the above Act, the defendant is entitled to the above benefit and therefore I hold that the Decree of the Trial Court cannot be sustained on the sole ground that the remey of the Plaintiff is to file an application for eviction of the Tenant viz., the Appellant herein under the appropriate provisions of Act 18/60 or under Act......" 11. The finding of the learned Additional District Judge that the Suit is not maintainable and that only Rent Control Petition is to be filed for Eviction has become conclusive. Thereafter, R.C.O.P.No.3 of 1989 has been filed for Eviction on the ground of Wilful Default. Again in the Rent Control Proceedings, the Respondent / Tenant has put forth the same defence alleging that he had put up superstructure. To substantiate her Claim that the superstructure belongs to the Petitioner / Landlady, the Petitioner has produced numerous documents, including her Title Deed. Ex.A.16 (Dated 20.11.1985) is the Sale Deed in favour of Govindaraju by one Thiyagarajan selling the vacant site and the thatched house site thereon. The said Govindaraju had sold the house site and the thatched house thereon to the Petitioner / Landlady. Ex.A.16 (Dated 20.11.1985) is the Sale Deed in favour of Govindaraju by one Thiyagarajan selling the vacant site and the thatched house site thereon. The said Govindaraju had sold the house site and the thatched house thereon to the Petitioner / Landlady. Both Exs.A.16 and A.3 clearly refer to the site and the thatched house site thereon sold to the Petitioner / Landlady as is clear from When the Title Deed in favour of the Petitioner / Landlady clearly shows the purchase of the Site and the thatched house thereon, it is not open to the Respondent / Tenant to contend that he had put up the superstructure. 12. To fortify the claim of ownership of the superstructure, the Petitioner / Landlady has also produced Exs.A.9 to A.14 – House Tax Receipts paid by the Petitioner relating to the demised property – Door No.56-B and 56-A. The Rent Control Appellate Authority has recorded the definite finding that Exs.A.9 to A.14 relate to the demised premises 56-B. There is no reason to take a different view. 13. To prove that he had put up the superstructure, the Respondent / Tenant has examined R.Ws.2 to 4. R.W.2 has not stated as to the ownership of the superstructure. He has only stated about the existence of the house in the disputed property. R.W.3 has spoken about the construction. His evidence was disbelieved by the Courts below on the ground that he was not able to state the name of the Street and other relevant aspects. The Rent Control Appellate Authority has disbelieved the evidence of R.W.3 on the ground that the name of the Vellaiya Kothanar had not been mentioned in the Counter Statement. R.W.4-Thayumanavan has spoken only about the lease of ground. Though R.Ws.3 and 4 have spoken in support of the Respondent / Tenant, no evidentiary value could be attached to their evidence in view of Ex.A.3. In the light of the recital – Ex.A.3 – Sale Deed, the Courts below have rightly discarded the oral evidence adduced by the Respondent / Tenant. The concurrent findings recorded by the Courts below is neither perverse nor can be said to be erroneous. 14. The Respondent is said to be in arrears of rent from 31.07.1989 – for a period 16 months (Rs.5/- per month). The contention of the Respondent is that he is not in arrears of rent. The concurrent findings recorded by the Courts below is neither perverse nor can be said to be erroneous. 14. The Respondent is said to be in arrears of rent from 31.07.1989 – for a period 16 months (Rs.5/- per month). The contention of the Respondent is that he is not in arrears of rent. According to him, he has deposited the rent in O.S.No.103 of 1985 till 30.09.1987. No evidence has been produced showing the deposit of the amount in O.S.No.103 of 1985. In the Counter Statement, it is alleged that the Respondent is ready to deposit the rent for 27 months from 01.10.1987 to 30.12.1989 calculated at Rs.135/-. Even as per the Counter Statement, the Respondent / Tenant is in arrears of rent. The contention of the Respondent / Tenant that he has deposited the rent in the earlier proceedings is not substantiated by producing the evidence. 15. Exs.B.11 to B.15 – Money Orders for sending the Rent of Rs.5/- per month have been produced. As pointed out by the Courts below, those Money Orders relate to the period 1984 and not to the disputed period. The Respondent has not only denied the Title of the Landlady over the superstructure but also had committed Wilful Default in payment of rent. In appreciation of the facts and evidence on record, the Courts below have rightly concluded that the Respondent / Tenant has committed Wilful Default and ordered Eviction. The concurrent findings of the Courts below are to be endorsed with. The Courts below have found that the Petitioner / Landlady has not proved her bonafide requirement for Additional Accommodation. No argument has been advanced on this aspect. 16. In proper appreciation of the evidence, the Courts below by concurrent findings ordered Eviction. There is no perversity or unreasonableness warranting interference. This Civil Revision Petition has no merits and is liable to be dismissed. 17. For the foregoing reasons, the order dated 14.03.1997 of the Appellate Authority (Sub Judge) Kulithalai in R.C.A.No.4 of 1995, confirming the order dated 22.04.1991 of the Rent Controller (District Munsif) Musiri in R.C.O.P.No.3 of 1989 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. 17. For the foregoing reasons, the order dated 14.03.1997 of the Appellate Authority (Sub Judge) Kulithalai in R.C.A.No.4 of 1995, confirming the order dated 22.04.1991 of the Rent Controller (District Munsif) Musiri in R.C.O.P.No.3 of 1989 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Two months time from the date of order (24.08.2005) is granted to the Revision Petitioner / Tenant to vacate and hand over vacant possession of the property to the Respondent / Landlady.