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2010 DIGILAW 127 (MAD)

Asmath Begum v. M. R. Devarajan

2010-01-18

M.VENUGOPAL

body2010
Judgment :- The revision petitioner/defendant has preferred this civil revision petition as against the judgment and decree dated 14.11.2005 in Ejectment Suit No.52 of 2004 passed by the Learned IV Judge, Court of Small Causes, Chennai. 2. The Germine facts of the respondent/plaintiffs case are as follows: The respondent/plaintiff is the absolute owner of the land over which the superstructure bearing old Door No.4, New No.5, Mottai Garden, First Lane, Old Washermenpet, Chennai 21 rests. The petitioner/defendants husband V.M.Sulaiman became the tenant under the respondent/plaintiffs father Rajagopal in respect of vacant land measuring 722 (38 X 19) Sq.Ft. on a monthly rent of Re.1/-. Later, the revision petitioner/defendants husband built up the superstructure on the vacant land leased out to him and was paying the monthly rent in respect of the land regularly. Lastly, the petitioner/defendants husband paid Rs.5/-per month towards land rent to the respondent/plaintiff and after his demise, the revision petitioner/defendant was paying a land rent of Rs.10/- per month to the respondent/plaintiff. The revision petitioner/defendant paid the land rent for the month of March 2000 and from April 2000 onwards, the land rent was not paid in spite of repeated demands. Therefore, the respondent/plaintiff caused a notice dated 27.4.2003, and called upon the revision petitioner/defendant to pay the arrears of rent. The respondent/plaintiff terminated tenancy of the revision petitioner/defendant and called upon to vacate the suit property by the end of 31.7.2003 and offered a sum of Rs.1,00,000/- to the revision petitioner/defendant as compensation for the superstructure as per Section 11 of the MADRAS CITY TENENATS PROTECTION ACT, 1921. The petitioner/defendant received the notice on 30.4.2003 and gave a reply dated 14.5.2003 mentioning false and fictitious allegations. The revision petitioner/defendant did not comply with the respondent/plaintiffs demand and therefore, the present suit was laid to quit and deliver vacant possession of the land described in the schedule. 3. The case of the revision petitioner/defendant is set out below: The respondent/plaintiff is not the owner of the suit property. The superstructure on the suit land, originally owned by one Abdul Baseeth on the leasehold right of the land from the father of the respondent/plaintiff. He sold the superstructure along with the lease hold right to G.B. Abdul Majeed, son of Babu Sahib by a registered sale deed dated 17.9.1945 (vide document No.556/1945) on the file of the Registrar of Madras and Chenglepet. He sold the superstructure along with the lease hold right to G.B. Abdul Majeed, son of Babu Sahib by a registered sale deed dated 17.9.1945 (vide document No.556/1945) on the file of the Registrar of Madras and Chenglepet. The leasehold right was purchased by the said Abdul Majeed from the father of the respondent/plaintiff M.K.Rajagopal Chettiar after payment of the compensation determined by this Court in Ejectment Suit No.3458/1947. Thus, Abdul Majeed became the absolute owner of the land and superstructure of the suit property. The respondent/plaintiff had no right to claim the suit property after 1947. The said Abdul Majeed executed a will bequeathing the suit property to his son G.M.Abdul Wahab on 22.2.1959. In turn the said Abdul Wahab sold the house and the land by means of a registered sale deed dated 19.10.1963 to one Karima Jan in respect of the premises No.16, Mottai Garden, First Lane bearing Door No.5. Later, Karima Jan sold the property to the husband of the revision petitioner/defendant on 12.2.1982 by means of registered sale deed (vide document NO.177/82). 4. Added further, the husband of the revision petitioner/defendant had been in absolute possession and enjoyment of the property and mortgaged the same to the Muthialpet Benefit Fund Ltd. and discharged the same on 12.08.1998 and the husband of the revision petitioner/defendant, was paying property and other taxes and in fact the revenue records were standing in his name. After the demise of her husband, the revision petitioner/defendant is in absolute possession and enjoyment of the property. The allegations in paragraph No.3 of the plaint that the husband of the revision petitioner/defendant was a tenant a monthly rent of Re.1 and lastly, he paid the rent of Rs.5/- and later, the land rent was paid at Rs.10/-etc., are fabricated and false ones. The suit property became the absolute property of predecessors in title and there was no occasion to pay the land rent to the respondent/plaintiff or his father after the year 1947 viz., after filing of the Ejectment Suit No.3458/1947 by the father of the respondent/plaintiff. Since the revision petitioner/defendant and her predecessors perfected their title by adverse possession, the respondent/plaintiff could not claim any right in respect of the suit property. The respondent/plaintiff had suppressed the title of the suit property and therefore, the suit must be dismissed with compensatory costs. 5. Since the revision petitioner/defendant and her predecessors perfected their title by adverse possession, the respondent/plaintiff could not claim any right in respect of the suit property. The respondent/plaintiff had suppressed the title of the suit property and therefore, the suit must be dismissed with compensatory costs. 5. Before the trial Court, on the side of the respondent/plaintiff, P.W.1 was examined and Exhibits A.1 to A.10 were marked. On the side of the revision petitioner/defendant, R.W.1 was examined and Exhibits B.1 to B.7 were marked. The trial Court on an appreciation of oral and documentary evidence on record had resultantly passed the judgment holding that the respondent/plaintiff is entitled to vacant possession of the property and decreed the suit by directing the revision petitioner/defendant to deliver the vacant possession of the property within one month and further directed the value of the superstructure to be assessed in a separate proceeding. 6. The point that arises for consideration is Whether the respondent/plaintiff is entitled to claim the delivery of vacant possession of the suit property from the Revision Petitioner/Defendant? The Contentions, Discussions and Finding: The learned counsel for the revision petitioner/defendant submits that the trial Court has decreed the suit against the revision petitioner/defendant who is the real owner of the property by means of a title and even in the absence of any documentary evidence to prove the title of the respondent/plaintiff, the trial Court has rendered a judgment in favour of the respondent/plaintiff and as a matter of fact, the land and superstructure have been sold by the predecessors in title to the revision petitioners husband as per the sale deeds marked on the side of the revision petitioner/defendant and also the father of the respondent/plaintiff alone has sold the suit property to the predecessors of the revision petitioner in the year 1947 in Ejectment No.3458 of 1947 filed by him and therefore, the respondent/plaintiff has lost his right over the suit property and non production of the suit document in the Ejectment Suit No.3458 of 1947 is not a fatal to the case of the revision petitioner/defendant, since the same has not been challenged for more than five decades and indeed, the revision petitioner/defendant has perfected his title by means of adverse possession. 7. 7. Added further, it is the stand of the revision petitioner/defendant that Exs.B.4 to B.7 viz., the xerox copy of the sale deed dated 12.02.1982, the xerox copy of the extract of permanent land register dated 24.7.1982, the xerox copy of the property tax demand card, xerox copy of the mortgage deed dated 21.10.1991 clearly prove the title of the revision petitioner and unfortunately, these documents have not been appreciated by the trial Court in a proper perspective and all the more, the trial Court has committed an error in coming to the conclusion of existence of landlord and tenant relationship between the parties to the suit, ignoring transfer of title to the land and superstructure has been in the year 1947 itself and in fact, there has been no necessity to pay any land rent by the revision petitioner to the respondent/plaintiff and moreover, the non examination of the respondent/plaintiff and examining only his wife as P.W.1 itself clearly proves the case of the revision petitioner/defendant and therefore, prays for allowing the civil revision petition in the interest of justice. 8. The learned counsel for the revision petitioner cites the decision of this Court K.S.ANANTHANARAYANAN VS. S.VAIDY AND OTHERS (2004 (4) CURRENT TAMIL NADU CASES 424) wherein at paragraph 24 and 25 it is observed as follows: "It is the common case of the parties that K.M. Subramanian had purchased the property on 11.1.1950 under the original of Ex.A1. When a property stands in the name of a person, the general presumption is that he is the owner of the property, unless the contrary is proved. The burden is on the person, who claims contra. In this case, the plaintiff and the first defendant made an attempt to say that the suit property should have the character of ancestral property i.e. against the tenor of the document. The plaintiff having taken the burden of proof on his shoulder, miserably failed in his attempt and therefore, we have no option except to hold that the property purchased under Ex.A1. is the self acquired property of K.M. Subramanian. It is in evidence that K.M. Subramaniam was employed as an executive in the Binny Mill, at the time of purchase. It is also in evidence that he was respectable citizen of that area, having elected as an M.L.A. for a term and holding some other post attached to the temple, etc. is the self acquired property of K.M. Subramanian. It is in evidence that K.M. Subramaniam was employed as an executive in the Binny Mill, at the time of purchase. It is also in evidence that he was respectable citizen of that area, having elected as an M.L.A. for a term and holding some other post attached to the temple, etc. Thus it is seen K.M. Subramanian was a man of means, commanding respect, It is also admitted, that K.M. Subramanian had acquired properties in his name and they were treated as his separate properties, sold, sale proceeds shared among the heirs, including daughters. This would suggest K.M. Subramanian ought to have purchased the suit property also, only from his separate earning and this purchase had nothing to do with the joint family or its so called nucleus. In this case, neither the existence of nucleus, nor its capacity to generate sufficient income, for the acquisition of the subsequent property is proved, which should follow K.M. Subramanian should have purchase of the property , only from his earning. At any stretch of imagination, it cannot be said that joint family nucleus was utilized , for the purchase of property, so as to brand the same, as joint family property or ancestral property. It is also not the case of plaintiff, though K.M. Subramanian purchased the property, it was treated as the joint family property or by the joint enjoyment of all the family members together, as joint family property, for which K.M. Subramanian had not raised any objection, thereby Ex.A1 property acquired the character of joint family property. Viewing the case from any possible angle, in our considered opinion the irresistible conclusion should be that the suit property is the self acquired property of K.M. Subramanian. Admittedly K.M. Subramanian died intestate and therefore, all the Class-I heirs of K.M. Subramanian including the daughters are entitled to equal share, which was rightly upheld by the trial court, not warranting any interference by this Court. Hence this point is answered accordingly". 9. Also, the learned counsel for the revision petitioner refers to Sections 45 and 46 of the Presidency Small Cause Courts Act, 1882, which runs as follows: "45. Applicant, if entitled to possession, not to be deemed Trespasser for any error in proceedings Occupant may sue for compensation. Hence this point is answered accordingly". 9. Also, the learned counsel for the revision petitioner refers to Sections 45 and 46 of the Presidency Small Cause Courts Act, 1882, which runs as follows: "45. Applicant, if entitled to possession, not to be deemed Trespasser for any error in proceedings Occupant may sue for compensation. - When the applicant, at the time of applying for any such order as aforesaid, was entitled to the possession of such property, neither he nor any person acting in his behalf shall be deemed, on account of any error, defect or irregularity in the mode of proceedings to obtain possession thereunder, to be a trespasser; but any person aggrieved may bring a suit for the recovery of compensation for any damage which he has sustained by reason of such error, defect or irregularity: When no such damage is proved, the suit shall be dismissed; and when such damage is proved but the amount of the compensation assessed by the Court does not exceed 1 (one hundred rupees), the court shall award to the plaintiff no more costs than compensation, unless the judge who tries the case certifies that in his opinion full costs should be awarded to the plaintiff. 46. Liability of applicant obtaining order when not entitled; - Nothing herein contained shall be deemed to protect any applicant obtaining possession of any property under this Chapter from a suit by any person deeming himself aggrieved thereby, when such applicant was not at the time of applying for such order as aforesaid entitled to the possession of such property. Application for order in such case an act of trespass:- And when the applicant was not, at the time of applying for any such order as aforesaid, entitled to the possession of such property, the application for such order, though no possession is taken thereunder, shall be deemed to be an act of trespass committed by the applicant against the occupant". 10. 10. Per contra, the learned counsel for the respondent/plaintiff submits that there is no documentary evidence in the instant case on behalf of the revision petitioner to establish that the suit land has been purchased pursuant to an order passed in Ejectment Suit and also the revision petitioner/defendant has not proved the fact that the Abdul Majeed has purchased the suit land and he has become the owner of the land and has been in continuous possession of the same in the capacity of tenant only and when the possession of Abdul Majeed is only of a tenant then, the subsequent purchasers viz., Karima Jan and Sulaiman are tenants only and they cannot claim ownership and further when the possession of the revision petitioner/defendants predecessor in title is that of a tenant, the plea of adverse possession has projected on the side of the revision petitioner defendant will not hold good and in short the revision petitioner/defendant has failed to establish her possession either as owner or through adverse possession and the trial Court has considered the entire fact and circumstances of the case in a right perspective and has decreed the suit and the same does not require any interference by this Court sitting in revision. 11. It is useful to refer to the evidence of P.W.1 (wife of respondent/plaintiff) to the effect that she knows about the suit property after the year 1960 and that her husband only knows the petitioner/defendant directly and that she knows the revision petitioner/defendants husband, who has paid the rent for which she has not given the receipt and the revision petitioner during his life time has paid a rent of Rs.5/- and later, the revision petitioner/defendant has paid the rent of Rs.10/-and there is no record to show that either the revision petitioner or her husband has paid the land rent and it is correct to state that the revision petitioners husband has been a tenant for a monthly rent of Rs.1/- and later, he has constructed the house and she does not know in which year petitioners husband constructed the superstructure and the petitioners husband has been in the said house from the year 1982. 12. 12. It is the further evidence of P.W.1 that she does not know the year in which the revision petitioners husband has become a tenant under her father in law and she does not know Abdul Baseeth and her husband only knows him and she does not know that the said Abdul Baseeth has sold the superstructure on 17.9.1945 and she has admitted that in the year 1947, a similar case like the present one has been filed in the Court and she does not know that Abdul Majeed has purchased the property from the Court and moreover, she does not know the petitioners husband has purchased the land and superstructure from the legal heir of the said Abdul Majeed, but the petitioners husband has purchased from the predecessor and that he has not purchased the land and added, further she does not know that the respondents father has sold the suit property in the year 1947 through Court to the revision petitioners husband and it is not correct to state that the revision petitioner is the owner of the property. 13. D.W.1(revision petitioner/defendant) has deposed before the trial Court that Abdul Maseeth has purchasaed the superstructure and the land leasehold right as per document Ex.B.1 xerox copy of sale deed dated 17.9.1945 and in the said document the Resurvey Number is mentioned as 25539/1 and the land extent is described as 18 X 34 Ft. and she has not filed the document to show that Abdul Majeed and the respondent/plaintiffs father has purchased the land from one Rajagopal Chettiar and that Abdul Wahab S/o. Abdul Majeed has sold the land and superstructure on 19.10.1963 as per the sale deed dated 19.10.1963 and the said sale deed speaks of land in Resurvey No.2539/1 and extent is shown as 24ft. X 18ft. and her husband has purchased the land and superstructure from Karima Jan by means of sale deed dated 12.2.1982 and in Exs.B.3 and B.4 sale deeds, the extent is described as 17 X 34 ft. and Resurvey No.2529/3 is mentioned and she has not filed the patta in the name of Karima Jan, Abdul Majeed and Abdul Wahab and it is incorrect to state that her husband has paid a sum of Rs.5/- per month as land rent to the respondent/plaintiff and after her husbands demise she has been paying a sum of Rs.10/-as land rent to the respondent/plaintiff. 14. Ex.A1 is the letter of authorisation given by the plaintiff whereby he has authorised his wife Saraswathy to appear before the Court and to tender evidence on his behalf in the Ejectment Suit No.52 of 2004. Ex.A.2 (series) is the xerox copy of the Patta extract from the permanent land register in C.No.41/47-48 signed by Tahsildar, dated 29.8.1947. As a matter of fact Ex.A.2, xerox copy of the patta pertains to R.S.No.2539/1. Ex.A.3 is the xerox copy of the settlement deed dated 20.3.1953 executed by Rajagopal Chettiar in favour of the respondent/plaintiff, in respect of the properties including the suit property. E.A.4(two in numbers) is the xerox copy of the permanent land register in respect of R.S.No.2529/1 of Tondiarpet division in Block No.40 which stands in the name of the respondent/plaintiff in respect of the R.S. 2539, wherein the tenure is mentioned as ground rent for shops and fuel depot. Ex.A.5 is the xerox copy of the property tax demand card in the name of respondent/plaintiff in respect of the land and the annual value is mentioned as Rs.819. On the reverse of Ex.A.5, half-yearly tax period is mentioned as April 2004 to September 2004 and October 2004 to March 2005. Ex.A.6 is the xerox copy of the Water and Sewerage Tax -cum-Water Charges Card in the name of the respondent/plaintiff, wherein the annual value is mentioned as Rs.30.60. Ex.A.7 is the respondent/plaintiffs lawyers notice dated 27.4.2003 addressed to the revision petitioner, wherein it is mentioned that the revision petitioner/defendant has lastly paid the land rent for March 2000 and from April 2000 onwards she has not paid the land rent and in all liable to pay a sum of Rs.3,600/-towards arrears of land rent for the period from 1.4.2000 to 3.3.2003 requiring the revision petitioner/defendant to surrender vacant possession of the land and building at Old door No.4, New door No.5, Mottai Garden, First lane, Madras 21and added further, the respondent/plaintiff has offered a sum of Rs.1,00,000/-towards compensation for the superstructure. Significantly, in Ex.A.7, the respondent/plaintiffs the lawyers notice dated 27.4.2003 addressed to the revision petitioner, it is mentioned that the notice can be treated as one issued under Section 11 of the MADRAS CITY TENANTS PROTECTION ACT,. 15. Significantly, in Ex.A.7, the respondent/plaintiffs the lawyers notice dated 27.4.2003 addressed to the revision petitioner, it is mentioned that the notice can be treated as one issued under Section 11 of the MADRAS CITY TENANTS PROTECTION ACT,. 15. It is to be noted that the definition of tenant under the Madras City Tenants Protection Act, 1921 (ACT III of 1922) includes a tenant is liable to pay rent and every other person deriving title from him/her and where a tenant is entitled to the protection of the Act obtains a decree or Order enabling him/her to produce the land assigns his/her right under the decree to another assignee will be entitled to bring himself on record and exercise the right to purchase which his assignor had in the considered opinion of this Court. As a matter of fact, there is nothing in the Civil Procedure Code or in the City Tenants Protection Act 1921 to prevent a tenant from assigning his/her rights under Decree or Order. The Act carves out a certain class of privileged tenants and does not vest any Jurisdiction in any Court. In short, a Court of law has to consider the defence on its merits. 16. Also, it is to be noted that when a tenant denies the title of the landlord he ceases to be a tenant and the rent paid will be only towards damages for house and occupation and as such he is not able to project an application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921. 17. It is relevant for this Court to refer to Section 11 of the Tamil Nadu City Tenants Protection Act which speaks of issuance of notice before institution of suits or applications against tenants and the same is as follows: "No Suit in ejectment or applications under section 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882) shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any, and stating the amount thereof. A copy of such notice shall, at the same time, be sent, in the case of property situated in the City of Chennai, to the Commissioner of Corporation of Chennai, or in the case of property situated in any (municipal town, township or village) to which this Act is extended, to the executive authority of the (municipality or township) or the executive officer of the panchayat, as the case may be, or any other authority as may be notified by the Government". 18. Therefore, it is quite clear that notice contemplated as per Section 11 of the Act is mandatory and non-issuance of notice is quite fatal to the maintainability of the suit. No doubt, it is for the plaintiff to prove the case of waiver and it is not for the defendant to project that plea. 19. One cannot ignore an important fact that Section 3 of the Act viz., payment of compensation of ejectment and Section 9 i.e. application to Court for directing the landlord to sell the land ought to be read together. No wonder, only a tenant who is entitled to claim compensation under Section 3 of the Act for any superstructure erected by him or improvements made by him can claim the right to buy the land under his occupation. However, if a tenant denies the title of the landlord to the land, tenancy comes to an end and the tenant cannot claim benefits under Section 9 and also in the decision CHINNA KANNU PANADITHAR V. V.S.KATHURI (1997 (1) CURRENT TAMIL NADU CASES 460), it is held that "if a tenant refuses to pay rent denying the title of the land owner, then he is not entitled to the benefits under Section 9 of the Act. 20. At this stage, it is relevant for this Court to point out that the provisions of the Tamil Nadu City Tenants Protection Act, 1921 are peculiar in nature and dealt with the right in regard to the superstructure erected by a tenant on the vacant site belonging to the landlord and leased out to the tenant a vacant site. Admittedly, the definition building under the Rent Control Act and other enactments will be of no use in the interpreting the term under the "City Tenants Protection Act", as seen from the aim and purpose of the Act, as opined by this Court. 21. Admittedly, the definition building under the Rent Control Act and other enactments will be of no use in the interpreting the term under the "City Tenants Protection Act", as seen from the aim and purpose of the Act, as opined by this Court. 21. The word sale is nothing but a transfer of ownership for a price involving absolute transfer of all rights in the property sold and in sale, there will be a Seller and a Buyer and in law the seller must be a person competent to transfer. To put it differently, a seller must be competent to contract and he must possess title to the property or authority to transfer it, if it is not his own". 22. As far as the present case is concerned, it is the categorical evidence of revision petitioner/D.W.1 to the effect that in Ex.B.1 sale deed dated 17.9.1945. the Resurvey number is mentioned as 2539/1 and the extent is described as 18 X 34 ft. and also that she has not filed any document to show that Abdul Majeed has purchased the land from the respondent/plaintiffs father Rajagopal Chettiar. Continuing further, the sale purported to have been executed by Abdul Majeed bequeathing the suit property to his son Abdul Wahab has not been exhibited and marked as document in the Suit. 23. In the present case, the purported purchase effected by Abdul Baseeth has not been established by means of production of necessary documents on the side of revision petitioner/defendant, which is not a favourable circumstance to the petitioner. Though on the side of the revision petitioner/defendant a plea is taken that Abdul Majeed has purchased the leasehold land from the father of the respondent/plaintiff Raja Gopal Chettiar after paying the compensation amount determined by the Court in Ejectment Suit No.3458 of 1947, no endeavour has been made on the side of the revision petitioner/defendant to produce any order of the Court in that regard and therefore, this Court comes to an inevitable conclusion that the purchase of the leasehold land by Abdul Majeed from the father of the respondent/plaintiff has not been proved to the subjective satisfaction of the Court. Moreover, no document has been projected on the side of the revision petitioner/her predecessors to prove the purchase of the property in question with clear title. Moreover, no document has been projected on the side of the revision petitioner/her predecessors to prove the purchase of the property in question with clear title. Apart from that, the sale of the suit land with tenancy right as per Exs.B.3 and B.4 dated 19.10.1963 and 12.2.1982 does not establish that the revision petitioner or her predecessor has acquired the title in respect of the property in dispute. 24. Ex.B.5 is a xerox copy of the extract of permanent land register dated 24.7.1982 refers to R.S.No.2529/3 of Tondiarpet Division, Block No.40. However, it is to be remembered that the suit schedule property pertains to R.S.No.2529/3. 25.On a conspectus of over all assessment of the facts and circumstances in a qualitative and quantitative integral manner and also considering the respective contentions projected on the side of the parties, this Court comes to an inevitable conclusion that the revision petitioner/defendant has not established but to the subjective satisfaction of this Court that her husband has acquired any title to the suit property and further she has also not proved her husbands predecessors in title have acquired any right over the suit property and resultantly, the civil revision petition fails. 26. In the result, the civil revision petition is dismissed leaving the parties to bear their own costs. Consequently, connected miscellaneous petition No.1 of 2008 is closed. Consequently, the judgment and decree of the trial Court passed in Ejectment suitNo.52 of 2004 dated 14.11.2005 is affirmed by this Court for the reasons assigned in this civil revision petition.