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2009 DIGILAW 3910 (MAD)

Gandhiammal v. P. A. G. Hussain Moulana

2009-09-30

V.PERIYA KARUPPIAH

body2009
Judgment :- JUDGMENT 1. This Revision is directed against the judgment and decree passed by the learned Rent Control Appellate Authority in R.C.A. No. 519 of 2007 confirming the order passed by the learned Rent Controller in R.C.O.P. No. 1171 of 2006. 2. Brief facts which are necessary for the disposal of the Revision would be as follows: (i). Respondent herein who is the landlord has filed the Petition before the Rent Controller (VIII Small Causes Court, Chennai) against the petitioner/tenant seeking for eviction under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The respondent’s case is that he is the owner of the property and the petitioner is a tenant. The respondent is the owner of the premises bearing No. 26/49, Gunagundi Masthan Dargah Compound, Pichandi Lane, Royapuram, Chennai-600013. The petitioner is a tenant in respect of a residential portion in premises bearing No. 26/49, Gunagundi Masthan Dargah Compound, Pichandi Lane, Royapuram, Chennai600013 on a monthly rent of Rs. 200/- payable on the 1st of every month. The petitioner is a chronic defaulter. The petitioner intentionally, with an ulterior motive, knowing the consequences of defaulting, wilfully failed to comply with the obligation of paying the rent for the months commencing from April 2005 to June 2006 amounting to Rs. 3,000/-. Therefore, the petitioner is liable to be evicted on the ground of wilful default. The respondent sent a legal notice dated 111. 2005 calling upon the petitioner to pay the arrears of rent, to hand over vacant possession of the premises to the respondent for committing wilful default. The notice was returned as not claimed. Therefore, the respondent prays that this Court may order eviction of the petitioner from the respondent premises on the grounds of wilful default. 3. The petitioner as respondent before Rent Controller has filed the counter with the following contentions: The petitioner submits that the respondent premises belongs to Wakf Board and therefore the above Petition is not maintainable in law. The petitioner denies all the allegations and averments made by the respondent in his Petition. The petitioner accepts that she is residing at the address mentioned above on a monthly rent of Rs. 200/-. The petitioner denies that she is a chronic defaulter. The petitioner denies all the allegations and averments made by the respondent in his Petition. The petitioner accepts that she is residing at the address mentioned above on a monthly rent of Rs. 200/-. The petitioner denies that she is a chronic defaulter. The petitioner further denies that she is under an obligation to pay the rent, month after month until she is in use and occupation of the demised premises. The petitioner submits that the respondent is not a landlord of the premises and the property belongs to Wakf board and the respondent is falsely representing that he is the landlord and collected the rents from the petitioner till April 2005. The petitioner therefore submits that the question of wilful default does not arise at all. The petitioner admits that she has received the said legal notice dated 111. 2005. The demised premises is a Wakf Board property and it will not come under the purview of the Tamil Nadu Building (Lease and Rent Control) Act. Therefore the petitioner seeks that the order of the Lower Court may be dismissed with exemplary cost. 4. The learned Rent Controller had gone through the evidence of the petitioner/landlord examined as PW1 and the documentary evidence EX.P1 to P8 produced on the side of the landlord and Ex. B1 on the side of the respondent/tenant’s and RW1 examined on the side of the tenant and had come to the conclusion of allowing the Petition filed by the petitioner/landlord directing eviction of the respondent tenant giving her two months time. 5. Aggrieved by the decision of the learned Rent Controller dated 06.08.2007 the respondent/tenant has preferred an Appeal in R.C.A. No. 519 of 2007 and the learned Rent Control Appellate Authority reappraised the evidence adduced by both sides before the learned Rent Controller and came to the conclusion of confirming the order passed by the learned Rent Controller in R.C.O.P. No. 1171 of 2006 and dismissed the Appeal. The appellant/tenant was given two months time to vacate the premises. 6. The respondent/tenant before the learned Rent Controller Appellate Authority was aggrieved by the decision of the Appellate Authority and she had preferred the Revision Petition against the said order. 7. Heard Mr. P. Valliyappan, learned counsel for the revision petitioner and Mr. Md. Ashfaq Rafi, learned counsel for the respondent. 8. 6. The respondent/tenant before the learned Rent Controller Appellate Authority was aggrieved by the decision of the Appellate Authority and she had preferred the Revision Petition against the said order. 7. Heard Mr. P. Valliyappan, learned counsel for the revision petitioner and Mr. Md. Ashfaq Rafi, learned counsel for the respondent. 8. For convenience, the revision petitioner and the respondent are referred as tenant and landlord respectively without prejudice to decide the fact and jural relationship as landlord and tenant in between the parties. 9. Learned counsel for the revision petitioner/tenant would submit in his argument that the Rent Control Appellate Authority as well as the Rent Controller have failed to see that the petitioner mentioned property belongs to Wakf Board only and therefore the respondent was not entitled to file Eviction Petition. He would further submit that both the Courts below would have come to a conclusion that there was no landlord and tenant relationship and it was also not proved through evidence of the respondent. It is also stressed in the argument of learned counsel for the petitioner that the order of eviction as ordered by the Rent Controller as confirmed by the Rent Control Appellate Authority cannot be sustained as there was no existence of landlord and tenant relationship in between parties. He would submit that the documentary evidence produced in Ex. R1 was misconstrued by the lower Courts. The lower Courts ought to have decided that the denial of title by the respondent before the Rent Controller against the petitioner was bona fide. He would submit that when there was no jural relationship in between the petitioner and respondent, both Courts below ought to have directed the parties to resort to Civil proceedings, but an eviction order was passed by the Rent Controller against the respondent in the Eviction Petition. He would further submit that the order of eviction passed by the learned Rent Controller and the dismissal of Appeal order passed by the Rent Control Appellate Authority are not sustainable in law and therefore both the orders have to be interfered and the revision may be allowed and thus the Eviction Petition before the Rent Controller may be dismissed. 10. 10. The learned counsel for the respondent (landlord) would submit in his argument that the petitioner’s (tenant’s) only defence was that the Eviction Petition was not maintainable since the petition mentioned premises was belonging to Wakf Board and the respondent (landlord) has falsely stated in the Petition that he was the owner of the property. He would further submit that the petitioner(tenant) had however forgotten the reply sent by her in Ex..P8 that she was the tenant under the respondent (landlord) and a sum of Rs.25/- was paid as advance with the mother of the respondent (landlord) Mrs. Razya Bi and after her demise the respondent was receiving the rents. He would further submit that the petitioner while she was examined as RW1 categorically admitted that rent was paid by the petitioner (tenant) to the respondent (landlord) without knowledge and after knowing that Wakf Board was the owner of the building the payment of rent was stopped for two years period and two years rent is yet to be paid. He would further submit that the admission in the reply notice Ex.P8 and the evidence of RW1 that the (tenant) petitioner paid rent to the (landlord) respondent and the subsequent refusal of payment of rent by denying the title could not be a bona fide one. For that he would rely upon the judgment of this Court in between N.A.S. Ansari v. M. Sarangan, 1996 (1) MLJ388, for the said proposition of law. 11. He would further submit in his argument that the petitioner(tenant) would state in his counter filed in R.C.O.P. No. 1171/2006 that the landlord was illegally collecting the rents from the respondent and other tenants in respect of the Petition mentioned premises. The said collection of rent was admitted by the (tenant) petitioner and the denial of title of landlord by the petitioner was only subsequent. He would further submit that the definition of landlord as per Section 2(8) of the Act would go a long way to show that landlord is a person who is entitled to receive the rent payable by the tenant. For that he cited a judgment of this Court in between V.S. Devados v. S. Velu and another, 1984 (1) MLJ 301 . Similarly a judgment of the Hon’ble Apex Court reported in S. Thangappan v. P. Padmavathy, 2000 (1) MLJ (SC) 12, was also cited in support of his case. For that he cited a judgment of this Court in between V.S. Devados v. S. Velu and another, 1984 (1) MLJ 301 . Similarly a judgment of the Hon’ble Apex Court reported in S. Thangappan v. P. Padmavathy, 2000 (1) MLJ (SC) 12, was also cited in support of his case. He would further submit in his argument that the landlord need not be a owner of the land and if he is a person entitled to receive the rent from the building, he would become a landlord for the purpose of the Act. He would further submit that the respondent (landlord) had put up the superstructure in the vacant site and let out the building to the petitioner (tenant) and was collecting rents and it would be sufficient to attract the definition of landlord as per Section 2(6) of the Act: “Landlord” includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant”. 12. Therefore, he would submit that the denial of title by the petitioner (tenant) against the respondent (landlord) in respect of demised premises is not bona fide and genuine. Apart from that the petitioner (tenant) had admittedly not paid the rents payable to the respondent (landlord) for a period of two years and therefore the non payment of the rent payable by the petitioner (tenant) would certainly attract the definition of wilful default as the denial of title of the respondent (landlord) by the petitioner (tenant) was found to be not bona fide and true. 13. The learned counsel for the respondent (landlord) would submit in his argument that both the Courts below have come to a conclusion that the relationship of respondent (landlord) and tenant in between parties have been established and the denial of title of the landlord by the tenant was not bona fide and the tenant had committed wilful default in paying the rent payable for the demise premises, on the basis of appraising the evidence and this Court being a revisional Court cannot reappreciate the evidence adduced by both parties and to come to a different conclusion. For that proposition of law he would rely upon the judgment of Hon’ble Apex Court reported in between Yunus Ali (Dead) through LRs. v. Khursheed Akram, 2008 (7) SCC 293. Similarly he would also bring it to the notice of this Court to a judgment of Hon’ble Apex Court reported in between P.M. Punnose v. K.M. Muneeruddin, 2005 (10) SCC 610, in support of such position of law. He would also bring it to the notice of this Court between The Nilgiris Co-Operative Marketing Society v. Uthandi, 1998 (2) MLJ 745 , a judgment of this Court reported in to characterise the default as wilful default. He would also submit that the evidence of RW1 (tenant) would categorically show the payment of rent made by the petitioner/tenant to the respondent/landlord and also an admission in the reply notice-Ex. P8 would go a long way to show that there was a jural relationship of landlord and tenant existed in between parties. Therefore the Petition filed against the concurrent finding of Lower Court may be dismissed as unsustainable. 14. I have given anxious thoughts to the arguments advanced on either side. The admitted facts in this case would be that the petitioner was in possession of the petition mentioned property. According to the respondent’s case before the Rent Controller the petitioner was put in possession as a tenant in the demised premises for monthly rent payable to his mother and after the death of the mother, she had paid the rent to the respondent (landlord) and there was a jural relationship and tenancy was existing in between them. 15. When we appraise the evidence we could see in Ex.P8-reply notice sent by the petitioner (tenant) that she admitted that she was the tenant under the respondent’s mother Mrs. Rasiya Bi from 1963 and after her life time the respondent started receiving the rents. This would go a long way to show that the petitioner was inducted as a tenant by the respondent’s mother Mrs. Rasiya Bi and the rent was paid by the petitioner to the said Rasiya Bi and after her life time to the respondent. This situation admitted in the Ex.P8 would be sufficient to hold that there was tenancy created originally in between the petitioner and respondent’s mother and thereafter in between the petitioner and the respondent. Rasiya Bi and the rent was paid by the petitioner to the said Rasiya Bi and after her life time to the respondent. This situation admitted in the Ex.P8 would be sufficient to hold that there was tenancy created originally in between the petitioner and respondent’s mother and thereafter in between the petitioner and the respondent. The subsequent denial of title in the said notice cannot be a bona fide one since the tenancy was already created in between the petitioner and the respondent’s mother. 16. The case of the petitioner/tenant before the Rent Controller was that the respondent/landlord is not the owner of the premises and there was no landlord and tenant relationship between them. It has been claimed by the petitioner/tenant that the property was belonging to Gunagudi Masthan Dargah Trust which was governed by Tamil Nadu Wakf Board. However the petitioner (tenant) had admitted in her evidence that Ex.P1-signature was belonging to her and she paid the rent to the respondent (landlord) and thereafter she did not pay the rent. Ex.P1 is the report of the Chief Executive Officer in respect of ‘Gunagudi Masthan Dargah compound’, Royapuram. According to the respondent (landlord) his mother was the tenant of the vacant site to the land belonging to the said trust and had put up superstructures and had leased the property to the petitioner and the tenancy was created in between the respondent’s mother and the petitioner. It was subsequently attorned with the respondent (landlord) also by payment of rent. 17. In the judgment of this Court in between V.S. Devadoss v. S. Velu and Another, 1984 (1) MLJ 301 , the following passage would make it clear: “For purpose of the Act, it is not necessary that the landlord should be the owner of the property in the sense of having exclusive title to it. It would suffice for the purpose of the Act if a person was entitled to receive the rent from the tenant in occupation”. The admission of the tenant in the reply notice as well as in cross-examination and the evidence of PW1 that he is the owner of the super-structure naturally the respondent (landlord) would be a landlord as per the definition of Section 2(8) of the Act. In the backdrop the definition of landlord as per Section 2(8) of the Act would apply to the present case. In the backdrop the definition of landlord as per Section 2(8) of the Act would apply to the present case. Therefore, denial of title on the part of the petitioner (tenant) against the landlord is not a bona fide one. The said point have been decided by the Courts below in their concurrent findings. 18. According to the judgment of Hon’ble Apex Court reported in between, Yunus Ali (Dead) through his LRs. v. Khursheed Akram, 2008 (5) CTC 188 (SC): 2008 (7) SCC 293, it has been categorically laid down as follows: “20. It is well settled position in law that under Section 115 of the Code of Civil Procedure the High Court cannot reappreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of the fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction.” 19. It has been also laid down by the Hon’ble Apex Court reported in between P.M. Punnoose v. K.M. Munneruddin and others, 2003 (3) CTC 348 (SC): 2003 (10) SCC 610 , as follows: “21. In the case at hand, we are of the opinion that the High Court, in exercise of revisional jurisdiction, was not justified in interfering with and reversing the findings arrived at by the Appellate Authority and the reversal recorded by the High Court stands vitiated by misreading of the written statement.” In the aforesaid judgment also it has been pointed out that the scope of revision under Section 115 of C.P.C., is very limited and reappraisal of evidence cannot be done in the case of concurrent finding reached by the Courts below. However, this Court ascertained the facts in consonance with the concurrent finding of the Courts below. Therefore, the finding of the Rent Control Appellate Authority that the denial of title of the respondent/landlord by the petitioner/tenant was not bona fide cannot be interfered. Similarly the admission of RW1 would go a long way to show that she did not pay the rent for about two years towards the rent payable towards the demised premises. 20. Therefore, the finding of the Rent Control Appellate Authority that the denial of title of the respondent/landlord by the petitioner/tenant was not bona fide cannot be interfered. Similarly the admission of RW1 would go a long way to show that she did not pay the rent for about two years towards the rent payable towards the demised premises. 20. The judgment of Hon’ble Apex Court reported in between S. Thangappan v. P. Padmavathy, 2000 (1) MLJ (SC) 12, would also speak about the qualification of landlord which would run as follows: “Section 116 of the Evidence Act puts an embargo on a tenant of an immovable property during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. This is indicative of the sphere of operation of this section. So, a tenant once inducted as a tenant by a landlord cannot deny his landlord’s title. Thus, this principle of estoppel debars a tenant beginning of his tenancy. Howsoever defective title of such landlord could be, such tenant could not deny his title. But subsequent to his induction as the tenant, if the landlord loses his title under any law or agreement and there is a threat to such tenant of his eviction by subsequently acquired paramount title holder, then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by this principle of estoppel under this Section.” 21. The aforesaid circumstance discussed in the judgment are not found in this case for befitting the petitioner/tenant. Therefore, the said non-payment of rent payable to the respondent/landlord is certainly a wilful act on the part of the petitioner since the denial of title of the respondent/landlord was not bona fide. The said finding cannot also be interfered in view of the aforesaid judgment of Hon’ble Apex Court. Therefore, I have no hesitation to disallow the claim of the petitioner that the judgment and decree passed by the Rent Control Appellate Authority is not in accordance with law and is liable to be interfered. Accordingly the orders passed by the Rent Control Appellate Authority as well as Rent Controller are perfectly in order and they are not liable to be interfered. 22. In fine, the Revision Petition is dismissed with costs. However, the petitioner is given three months time for vacating the premises.