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2008 DIGILAW 676 (MAD)

Naseema Begum v. Mohamed Akbar Badsha

2008-02-26

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This revision has been preferred against the concurrent findings of the learned Rent Controller (XV Judge) Court of Small Causes, Chennai in R.C.O.P.No.298 of 2006 which was confirmed by the learned Rent Control Appellate Authority (VIII Judge, ) Court of Small Causes, Chennai in R.C.A.No.744 of 2006. The second respondent in R.C.O.P.No.298 of 2006 is the revision petitioner herein. R.C.O.P.No.298 of 2006 was filed by one Mohamed Akbar Badsha against one Noorul Islam and Naseema Begum/revision petitioner herein under Section 10(2)(ii)(a) of Tamil Nadu Buildings (Lease and Rent Control)Act(hereinafter referred to as "the Act"). 2. According to the landlord/respondent herein, the petition schedule building at Door No.40/42, Venkatesa Naicken First Street, Mount Road, Chennai-2 was leased out by the petitioner Mohamed Akbar Badsha to Noorul Islam for rent. It is the case of the petitioner that the first respondent Noorul Islam had sub let the said premises to the second respondent Naseema Begum, who is none other then his own sister. The said petition was resisted by Naseema Begum/revision petitioner/second respondent in R.C.O.P.No.298 of 2006 on the ground that even in an earlier petition filed by the landlord Mohamed Akbar Badsha in R.C.O.P.No.501 of 2002 which was filed against her mother Fathima Bi and her son Noorul Islam (first respondent in R.C.O.P.No.298/2006) for eviction and during the pendency of R.C.O.P.No.501 of 2002, the mother of Noorul Islam and Naseema Begum viz., Mrs. Fathima Bi died on 12. 2002 and the second respondent Mrs. Naseema Begum and Mrs,Haseena were impleaded as legal representatives of the deceased Fathima Bi in R.C.O.P.No.501 of 2002 and on contest, the said R.C.O.P.No.501 of 2002 was dismissed. Against the findings in R.C.O.P.No.501 of 2002, an appeal in R.C.A.No.116 of 2004 was preferred by the landlord Mohamed Akbar Badsha and the said R.C.A.No.116 of 2004 was also dismissed on 111. 2007. After the dismissal of the said R.C.A.No.116 of 2004, the landlord Mohamed Akbar Badsha had filed the present R.C.O.P.No.298 of 2006 claiming that the first respondent let out the premises to the second respondent without the permission of the landlord and that he is liable to be evicted under Section 10(2)(ii) (a) of the Act which cannot be sustainable. 3. Before the Rent Controller, the landlord has examined himself as P.W.1 and Exs P1 to P4 were marked. 3. Before the Rent Controller, the landlord has examined himself as P.W.1 and Exs P1 to P4 were marked. The second respondent Naseema Begum had examined herself as R.W.1 and Ex R1 was marked on her side. After going through the evidence and after hearing the submissions made by both counsels, the learned Rent Controller has allowed the R.C.O.P. giving two months time to the tenant to vacate and hand over the vacant possession to the landlord.Aggrieved by the said order, the second respondent/revision petitioner has preferred an appeal in RCA No.744 of 2006 before the Rent Control Appellate Authority, who had also dismissed the appeal confirming the order passed in R.C.O.P, which necessitated the second respondent in R.C.O.P.No.298 of 2006 to prefer this revision. .4. The only point to be decided in this revision is that whether the sub tenancy in favour of the second respondent by the first respondent Noorul Islam has been proved beyond any doubt. The learned Rent Controller relying on the evidence of R.W.1 as to the effect that after her marriage, she went and lived with her husband in her father-in-laws house and after her mother-in-laws death, she came to the petition schedule building, since the first respondent had left for abroad and his wife had also left for her mothers house for delivery. She would admit that her ration card stands for door No.40/42 at Venkatesa Naicken First Street, Second lane, Chennai-2. The learned Rent Control Appellate Authority relying on the evidence of R.W.1 in R.C.O.P/revision petitioner herein as to the effect that after the marriage, the revision petitioner had left for her mother-in-laws house at Door No.43 and after her demise, she came to the petition schedule building since the first respondents wife had left for her mothers house for delivery. Only on the basis of the said piece of evidence as to the fact that the second respondent is residing in the petition schedule building, both the Courts below have come to a conclusion that the first respondent viz., Noorul Islam had sub let the premises to the second respondent Naseema Begum/revision petitioner herein. 5. The learned counsel appearing for the revision petitioner would contend that even in the earlier R.C.O.P.No.501 of 2002, the second respondent has been impleaded as the legal representative of Fathima Bi, the first respondent therein as her daughter. 5. The learned counsel appearing for the revision petitioner would contend that even in the earlier R.C.O.P.No.501 of 2002, the second respondent has been impleaded as the legal representative of Fathima Bi, the first respondent therein as her daughter. Along with her, the first respondent and other two sisters of the second respondents have also been impleaded as Legal representatives of the deceased Fathima Bi in R.C.O.P.No.501/2002. R.C.O.P.No.501 /2002 was also filed by the same landlord Mohamed Akbar Badsha in respect of the same building on the ground of owners occupation. But the said R.C.O.P. was dismissed and an appeal preferred against the order in R.C.O.P.No.501/2002 under R.C.A.No.116 of 2004 was also dismissed. The learned counsel has relied on the said Judgment in R.C.O.P.No.501 of 2002 to show that both the first respondent and the second respondent are the children of the deceased Fathima Bi and that they are brother and sister respectively. .6. The learned counsel appearing for the respondent relying on a decision reported in M.V.Swami -v- Ameer Basha (1985 (1) M.L.J. 53 would contend that if it is proved that the person to whom the premises was let out was not residing there and in his place if it is shown that another person is living, then the inference will be that the tenant had sub let the premises without the permission of the landlord and on that score the tenant is liable to be evicted under Section 10(2)(ii)(a) of the Act. The facts of the said case in brief relevant for the purpose of deciding this revision are that the alleged sub tenant second respondent, according to the landlord therein was conducting a type-writing institute in the premises let out to the tenant/first respondent. There was evidence like name board of the type writing Institute coupled with the admission of the petitioner that the licence for the institute stands in the name of the wife of the second respondent and the attachment proceedings under ExP5 clearly established that the premises let out to the petitioner was under the occupation of the second respondent herein. So in that case, there was material to show that the second respondent was running a type writing institute in the premises which was originally let out to the first respondent. So in that case, there was material to show that the second respondent was running a type writing institute in the premises which was originally let out to the first respondent. Since the sub-letting has been established by overwhelming evidence, the learned Judge of this Court has held that the tenant is liable to be evicted under Section 10(2)(ii)(a) of the Act. Further it is pertinent to note that the second respondent in that case is no way related to the first respondent/original tenant. But in the case on hand, the first respondent and the second respondent are own brother and sister respectively and their mother was Mrs.Fathima Bi, the first respondent in R.C.O.P.No.501 of 2002. It is in evidence that the first respondent/revision petitioners brother viz., Noornul Islam is in abroad and his wife had gone to her mothers house for delivery. It is not in evidence that the revision petitioner/second respondent in R.C.O.P.No.298 of 2006 is residing in the petition schedule building with her husband. Admittedly, her husbands house is at Door No.43/3, Venkatesa Naicken First Street, Mount Road, Chennai-2. The petition schedule building is door No.40/42 in the same Venkatesa Naicken First street, Mount Road, Chennai-2. 7. The other dictum in Rupalochani Saraswathi Ammal-v-Sundaranarayanan(1984(1) M.L.J.366) relied on by the learned counsel appearing for the respondent is also of no use to the respondent because there was evidence to show that the building in question was let out to the tenant for non residential purpose ie., to run a x-ray clinic. But the tenant had sub let the premises to the third parties for residential purpose. Only on that ground, eviction was ordered under Section 10(2)(ii)(a) of the Act. But the case on hand, the property was let out to the first respondent for residential purpose and there was no material to show that the second respondent, who is none other than the sister of the first respondent is a tenant under the first respondent and who was put in occupation of the petition schedule building without the permission of the landlord. 8. The learned counsel appearing for the revision petitioner relying on a decision reported in V.Venkatarama Chettiar-v-M.Duraiswami Mudaliar & Co., by Managing Partner Rathnavelu Mudaliar(1963(1)M.L.J.125)and contended that an order of eviction under sub letting shall be passed only if the sub letting is established beyond any reasonable doubt. 8. The learned counsel appearing for the revision petitioner relying on a decision reported in V.Venkatarama Chettiar-v-M.Duraiswami Mudaliar & Co., by Managing Partner Rathnavelu Mudaliar(1963(1)M.L.J.125)and contended that an order of eviction under sub letting shall be passed only if the sub letting is established beyond any reasonable doubt. The exact observation in the said Judgment runs as follows: "It will be seen from the record that on the date when the application for eviction was filed admittedly the respondent was not the owner of any business premises in Madras City. It is alleged that he had entered into an agreement for purchasing the building in which he is now carrying on his business of printer and publisher at the time when he filed the application for eviction. The date when he filed the application for eviction was 21st November 1960. The date of agreement of purchase was 11th October, 1960. The sale deed was actually obtained on 26th November 1960. The order of eviction was passed sometime after 26th November 1960. Mr.Venkatarama Iyers contention is that before the Controller could order eviction of a tenant at the instance of a landlord, who alleged that he did not own any non-residential building of his own in the City of Madras for carrying on his business, the Controller ought to have been satisfied on the date when he passed the order of eviction that that condition was continued to be fulfilled by the petitioner. The point is not covered by any specific provision in the Madras Buildings ( Lease and Rent Control) Act. The section merely speaks of a right of a landlord to apply for eviction on this ground and in defining this right it merely reads as though he was entitled to this right provided he did not own a building of his own on the date when he applied to the Controller for eviction. The requirement as to bona fides,-Mr.Venkatarama Iyers contention was-implied that this condition must continue to exist right down to the date when the order of eviction was passed." Relying on the above said decision, the learned counsel appearing for the revision petitioner would contend that there is no bonafide on the part of the landlord. The landlords intention is to get possession in one way or other. The landlords intention is to get possession in one way or other. Having failed in the previous attempt in R.C.O.P.No.501 of 2002, the landlord has come forward with the R.C.O.P.298 of 2006 with a frivolous motive. It is a settled law that while exercising the power of revision, this Court normally will not interfere with concurrent findings of the Courts below. But if it is proved that the findings of the learned Rent Control Appellate Authority is perverse in nature and not based on any acceptable evidence then this Court has got every power to interfere with the concurrent findings too. Since there is no material to show that the revision petitioner is in occupation of the petition schedule building as a sub tenant, this Court has necessarily to interfere with the findings of the learned Rent Control Appellate Authority in R.C.A.No.744 of 2006 . 9. In fine, this revision petition is allowed and the Judgment in R.C.A.No.744 of 2006 on the file of VIII Judge, Court of Small Causes, /Rent Control Appellate Authority, Chennai is hereby set aside and the R.C.O.P.No.298 of 2006 on the file of XV Judge, Court of Small Causes/Rent Controller, Chennai is hereby dismissed. The parties are directed to bear their own costs.