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2006 DIGILAW 3223 (MAD)

R. Sampath v. Manimegalai

2006-11-24

R.BANUMATHI

body2006
ORDER This revision petition is directed against the concurrent findings of the Rent Control Authorities ordering eviction under Section 10(2)(i) - wilful default and Section 10(3)(a)(i) - owner’s use and occupation. Tenant is the revision petitioner. 2. Case of the landlady is as follows: On 11.6.1993, the landlady purchased the petition-mentioned property from one Krishnaraj and his sons. The revision petitioner was tenant of the petition-premises under the said Krishnaraj and it is a residential one. After the landlady’s purchase, the revision petitioner paid Rs. 400 to the respondent for three months. Thereafter, the tenant committed default in payment of rent. The landlady is the second wife of Natarajan and since there are some differences between the first wife and second wife, she cannot reside along with the first wife of her husband. The landlady does not have any other premises of her own and she required the petition-premises for her own use. The respondent informed the revision petitioner about the requirement of the tenement for her residential purpose. Since the petitioner failed to vacate the petition-premises, the landlady filed the execution petition in R.C.O.P.No.5 of 1997 before the Rent Controller, District Munsif Court, Pollachi under Sections 10(2)(i) and Section 10(3)(a)(i) of Madras Building (Lease and Rent Control) Act. 3. The petitioner resisted the petition on the ground that there is no landlord-tenant relationship and that he is not aware of the purchase of the petition-premises by the respondent. According to the revision petitioner, he has paid Rs. 10,000/- to Krishnaraj and had taken the premises on Bogiyam and to that effect, there is a Vardamana Letter (Exhibit R-1) between the revision petitioner and the said Krishnaraj. The said Vardamana Letter/Agreement was not cancelled. The revision petitioner has no landlord/tenant relationship with the respondent and therefore, eviction cannot be ordered. 4. In the Courts below, the landlady’s husband Natarajan was examined as P.W.1 and Exhibits P-1 and P-2 were marked. The tenant has examined himself as R.W.1 and Manicka Raj, brother of Krishnaraj was examined as R.W.2 and Exhibit R-1 was marked. Report and plan of the Commissioner were marked as Exhibits C-1 and C-2. 5. In consideration of the evidence, the learned Rent Controller inter alia found that Bogiyam is not true. The tenant has examined himself as R.W.1 and Manicka Raj, brother of Krishnaraj was examined as R.W.2 and Exhibit R-1 was marked. Report and plan of the Commissioner were marked as Exhibits C-1 and C-2. 5. In consideration of the evidence, the learned Rent Controller inter alia found that Bogiyam is not true. Exhibit R-1 - Vardamana Letter was neither registered nor the Commissioner had examined witnesses to prove the genuineness, and the revision petitioner has been in occupation not as Bogiyadar, but only as a tenant. The tenant was well aware of the purchase of the petition-premises by the landlady and that there is landlady-tenant relationship between the respondent and the petitioner. The tenant has wilfully failed and neglected to pay rent to the landlady and that the requirement of the landlady is bona fide. The tenant’s contention that the western portion is in the possession of ManickarajR.W.2 cannot be the ground for disallowing the petition. 6. On those findings, the learned Rent Controller ordered eviction. In the appeal preferred by the petitioner in R.C.A.No.10 of 2001, order of eviction was confirmed by the Rent Control Appellate Authority. 7. Assailing the concurrent findings, the learned counsel for the revision petitioner/tenant has submitted that the Courts below did not properly appreciate Exhibit P-1 Vardamana Letter and that the petitioner paid a sum of Rs. 10,000/- to the original owner Krishnaraj and there is no relationship of landlady and tenant between the petitioner and the respondent. It was further submitted that the landlady has not proved tenancy relationship between the revision petitioner and the original owner. The learned counsel also urged that even assuming that the revision petitioner came into possession as a tenant, unless and until the sum of Rs. 10,000/- is repaid, the petitioner need not pay any monthly rent and need not vacate and hence, the impugned order or eviction is to be set aside. 8. The learned counsel for the respondent/landlady has submitted that the tenant is not entitled to agitate purely factual issues in the revision petition preferred under Section 25 of Tamil Nadu Buildings Lease and Rent Control Act, 1960. The learned counsel has further submitted that the evidence would clearly show that the revision petitioner/tenant wants to squat upon the property. 8. The learned counsel for the respondent/landlady has submitted that the tenant is not entitled to agitate purely factual issues in the revision petition preferred under Section 25 of Tamil Nadu Buildings Lease and Rent Control Act, 1960. The learned counsel has further submitted that the evidence would clearly show that the revision petitioner/tenant wants to squat upon the property. It was further submitted that any discrepancy of the demised property would be decided by the Court in the civil suit filed by R.W.2 and on that ground, the tenant cannot resist the eviction petition. 9. I have carefully considered the submissions and the materials on record. 10. In both the Courts below, a point was raised regarding Exhibit R-1 - Vardamana Letters under which an amount of Rs. 10,000/-is said to have been paid and both the Courts have concurrently found that Exhibit R-1 cannot be looked into, since it is unregistered document. As held by the Courts below, neither Krishnaraj nor witnesses to Exhibit R-1 have been examined to prove the genuineness of Exhibit R-1. 11. Brother of Krishnaraj viz., Manickaraj (R. W. 2) has stated that the revision petitioner had paid Rs. 10,000/- and is in occupation pursuant to Bogiyam. Since R.W.2 is not a witness in Exhibit R-1, Vardamana Letter, no weight could be attached to his evidence. In Exhibit R-1, Vardamana Letter, the period stipulated is only five years. After the expiry of a period of five years, the tenant has not taken any steps either to renew the Vardamana Letter or obtain any endorsement from the original owner Krishnaraj. While so, the petitioner/tenant cannot claim indefeasible right to be in occupation of the property on the basis of Exhibit R-1 - Vardamana Letter which is neither registered nor its genuineness had been proved. The Courts below have rightly discarded Exhibit R-1. 12. It is evident from the answers elicited from the revision petitioner during cross-examination that he has no inclination to vacate the property. The revision petitioner runs a furniture shop. The demised property is on the Eastern side of the furniture shop. Admittedly, both the furniture shop and the demised premises are situated in Meenkarai Road, in an important locality in Pollachi. R. W. 1 has admitted that he was very much interested in buying the property. The revision petitioner runs a furniture shop. The demised property is on the Eastern side of the furniture shop. Admittedly, both the furniture shop and the demised premises are situated in Meenkarai Road, in an important locality in Pollachi. R. W. 1 has admitted that he was very much interested in buying the property. R.W.1 has also admitted that Krishnaraj has promised to sell the property to the revision petitioner but contrary to his promise, Krishnaraj has sold the property to others and hence, he would not vacate the premises. The tenant has gone to the extent of stating that he is not vacating mainly because Krishnaraj has sold the property to others. The tenant has further stated that even if additional Rs. 10,000/- is repaid to him, he would not vacate. Intention of the revision petitioner seems to be in occupation of the demised property forever. Therefore, there is every reason to infer that the Vardamana Letter might have been manipulated, as concluded by the Courts below. 13. The next contention urged by the revision petitioner is that he was not aware of the sale to the landlady and that the landlady has not sent any notice to him informing about the purchase. In view of the evidence of R.W.2, the said contention was not accepted by the Courts below. Portion of R.W.2 - brother of Krishnaraj, is just on the Western side of the demised premises. R.W.2 being the brother of Krishnaraj has stated that both himself and the revision petitioner had known about the sale to the landlady. That apart, the landlady’s husband - Natarajan is stated to be the Chairman of Lion’s Club in Pollachi and the revision petitioner is a member of the Lion’s Club. While so, it is quite unacceptable that the revision petitioner would not have known about the purchase of the demised premises by the landlady. The learned Rent Controller has rightly found that the revision petitioner had knowledge about the purchase by the landlady within one month from the date of purchase. 14. The contention that the landlady has not issued any notice and that there was no landlady-tenant relationship, also has no force. The learned Rent Controller has rightly found that the revision petitioner had knowledge about the purchase by the landlady within one month from the date of purchase. 14. The contention that the landlady has not issued any notice and that there was no landlady-tenant relationship, also has no force. Husband of the landlady has stated that after the purchase, they went to the demised premises and orally asked the revision petitioner to vacate and that the revision petitioner has also agreed and paid rent to the landlady for three months. The evidence of P.W.1 was accepted by the Courts below and there is no erroneous approach. I find no reason to take a different view. The revision petitioner himself has admitted that rent is payable to Krishnaraj. While so, the revision petitioner having not paid rent to the landlady, has committed wilful default. 15. Strenuous arguments were advanced in the Courts below to show that the landlady cannot seek eviction in view of lack of clarity in the description of the property. Western portion is stated to be in the occupation of R.W.2-Manickaraj. Further West is Advocate’s Office. Demised premises is situated on the Eastern side, approximately measuring 22 “ x 10”. Western portion in the occupation of R.W.2 is stated to be approximately measuring 22 “ x 10”. But in the sale deed, Krishnaraj had sold away 405 sq.ft. with stated boundaries thereto. The Rent Control petition also contains the same description of the property as in the sale deed. At the instance of the revision petitioner, a Commissioner was also appointed and the Commissioner has filed his report and plan showing the location and measurements. It is not necessary to go into the details of Exhibits C-1 and C-2 and the measurements. Suffice it to point out that P.W.2 has already filed a civil suit in O.S. No.23 of 1999 against his brother Krishnaraj raising objection regarding the description of the property in the sale deed. Any discrepancy in the description of the property in the sale deed is the inter se dispute between the R.W.2 and the vendor Krishnaraj which would be adjudicated upon in O.S.No.23 of 1999. The revision petitioner/tenant cannot take advantage of that inter se dispute between the brothers to squat on the property. The Courts below have rightly ordered eviction on the ground of wilful default. The revision petitioner/tenant cannot take advantage of that inter se dispute between the brothers to squat on the property. The Courts below have rightly ordered eviction on the ground of wilful default. 16.Own use and occupation: The landlady is the second wife of P.W.1. P.W.1 has stated that because of differences between the first wife and second wife, the landlady requires separate residence for herself. For keeping good relationship and maintaining healthy relationship between members of the family and her husband, if the landlady feels that she must have a separate residence, her bona fide requirement cannot be doubted. It would not be appropriate to assume that the husband and wife should naturally be living in the same house where the first wife is living. Since the landlady is the second wife, she requires another building for her own ‘separate residence’ and that need cannot be doubted as unnatural. At this juncture, it is pertinent to note that the revision petitioner/tenant himself owns another house near the demised property, which he has let out to the tenants. The concurrent findings of the Courts below regarding the bona fide requirement does not suffer from any perversity. 17. The concurrent findings of fact by both the lower Courts regarding wilful default committed by the tenant and bona fide requirement by landlady is not to be interfered with by the High Court under the revisional jurisdiction under Section 25 of the Act. Revision petition is bereft of merits and is bound to fail. 18. The order in R.C.A.No.10 of 2001, on the file of the Subordinate Judge, Pollachi dated 26.8.2003, arising out of the judgment and Decree dated 28.2.2001 made in R.C.O.P.No.5 of 1997 on the file of the Rent Controller (District Munsif), Pollachi is confirmed and this revision is dismissed. No costs. Consequently, C.M.P.No.21586 of 2003 is also dismissed. One month time is granted for vacating and handing over vacant possession.