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2010 DIGILAW 54 (MAD)

Saral Saroja v. Simson

2010-01-04

A.SELVAM

body2010
Judgment : This second appeal has been directed against the concurrent Judgments passed in Original Suit No.7 of 1990 by the District Munsif Court, Ambasamudram and in Appeal Suit No.7 of 1994 by the Sub Court, Ambasamudram. 2. The respondent herein as plaintiff has instituted Original Suit No.7 of 1990 on the file of the trial Court for the reliefs of declaration, recovery of possession and also for future mesne profits, wherein the present appellant has been shown as sole defendant. .3. It is averred in the plaint that the suit property is originally belonged to the father of the plaintiff by name Kovil Pichai Nadar and he enjoyed the same uninterruptedly for more than a statutory period. The plaintiff has purchased the suit property under a registered sale deed dated 212. 1988. After purchase, the plaintiff has asked the defendant to vacate the suit property. But the defendant has agreed to enjoy the suit property on a monthly rental of Rs.75/- and also given assurance to vacate the suit property within six months. The defendant has paid monthly rent upto April 1989 and thereafter she failed to pay monthly rent. The plaintiff has issued a legal notice on 110. 1989 to the defendant and even after receipt of the same, she has failed to vacate the suit property. She has also given a legal notice contending false averments. It is false to say that the suit property has been allotted to the husband of the defendant in a family arrangement. It is also equally false to say that the husband of the defendant has improved the suit property by way of spending Rs.20,000/-. No family arrangement has been made as stated on the side of the defendant. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. It is averred in the written statement filed on the side of the defendant that it is false to contend that the plaintiff has purchased the suit property under a registered sale deed dated 212. 1988. The suit property has been given to the husband of the defendant in a family arrangement and subsequently he made improvements and lived along with his family members. 1988. The suit property has been given to the husband of the defendant in a family arrangement and subsequently he made improvements and lived along with his family members. The husband of the defendant has served in a mill and he passed away on 21.03.1988 and after his demise, the plaintiff has approached the defendant to give the job of her husband to him and the job of the defendant has been given to her brother by name Selvaraj. Since the demand made by the plaintiff has not been conceded by the defendant, the father of the plaintiff has created a false document dated 212. 1988. The defendant has been residing in the suit property as of its rightful owner. It is false to say that the defendant has agreed to pay monthly rental of Rs.75/-. The defendant has given a suitable reply notice to the plaintiff. It is also equally false to say that in a portion of the suit property, the house mentioned in the plaint is situate. There is no merit in the suit and the same deserves dismissal. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after scrutinising both the oral and documentary evidence has decreed the suit only in respect of the reliefs of declaration and recovery of possession. Against the Jugment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.7 of 1994 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal, whereby and whereunder confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments passed by the Courts below, the present second appeal has been filed at the instance of the defendant as appellant. .7. At the time of admitting the present second appeal, the following substantial question of law has been framed for consideration: .“Whether in any event the appellant is entitled to the benefits of Section 51 of the Transfer of Property Act?" .8. .7. At the time of admitting the present second appeal, the following substantial question of law has been framed for consideration: .“Whether in any event the appellant is entitled to the benefits of Section 51 of the Transfer of Property Act?" .8. At the time of hearing arguments, the following additional substantial question of law has been formulated for consideration: ."Whether the suit for eviction at the instance of landlord against the tenant is maintainable in a civil Court without obtaining a finding from the Rent Controller in the Landlords Rent Control Original Petition for eviction that the denial of tenancy by the tenant is mala fide?" 9. The sum and substance of the case of the plaintiff is that the suit property is originally belonged to Kovil Pichai and he enjoyed the same for more than a statutory period and the plaintiff has purchased the same under a registered sale deed dated 212. 1988 and subsequently asked the defendant to vacate the suit property and the defendant has agreed to enjoy the same for a period of six months on a monthly rental of Rs.75/-and she paid monthly rent upto April 1989 and subsequently she committed default and thereafter the plaintiff has chosen to given notice dated 110. 1989 and after receipt of the same, the defendant has given a false reply notice. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 10. Per contra, it has been contended on the side of the defendant that the suit property has been given to the husband of the defendant in a family arrangement and he served in a mill and by way of spending Rs.20,000/- he improved the suit property and after his demise the defendant and her family members are living in the suit property as rightful owners and it is false to say that the defendant has agreed to enjoy the suit property for a period of six months on a monthly rental of Rs.75/- and further it is false to say that in a portion of the suit property, the house mentioned in the plaint is situate and therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint. 11. As enunciated earlier, the trial Court has granted the reliefs of declaration and recovery of possession in favour of the plaintiff. 11. As enunciated earlier, the trial Court has granted the reliefs of declaration and recovery of possession in favour of the plaintiff. The first appellate Court has confirmed the Judgment and decree passed by the trial Court. Under the said circumstances, the Court has to analyse as to whether the concurrent Judgments passed by the Courts below are perfectly correct or the same need interference? 12. Even though at the time of admitting the present second appeal a substantial question of law has been formulated to the effect as to whether the appellant/defendant is entitled to get the benefits of Section 51 of the Transfer of Property Act, the real substantial question of law emerged in the second appeal is as to whether the present suit is legally maintainable in a Civil Court without getting a finding under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 13. Even at the risk of jarring repetition the specific case of the plaintiff is that the suit property is originally belonged to his father viz., Kovil Pichai and he purchased the same under a registered sale deed dated 212. 1988 and subsequently asked the defendant to vacate the suit property and the defendant has agreed to enjoy the suit property for a period of six months on a monthly rental of Rs.75/- and upto April 1989 she paid monthly rent properly and thereafter committed default in payment of monthly rent and thereafter a notice dated 110. 1989 has been given and the defendant after receipt of the same has given a legal notice stating that the suit property has been given to her husband in a family arrangement. 14. From the close reading of the averments made in the plaint, the Court can easily discern that the specific case of the plaintiff is that the defendant has been enjoying the suit property as a tenant of the plaintiff and the defendant has denied his title and also claims right of permanent tenancy over the suit property. Before analysing the rival submissions advanced by the learned counsel appearing for both sides, it would be apropos to look into the provision of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the same reads as follows: 10. Before analysing the rival submissions advanced by the learned counsel appearing for both sides, it would be apropos to look into the provision of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the same reads as follows: 10. Evictionof tenants.-(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 14 to 16: Provided that nothing contained in the said Sections, shall apply to a tenant whose landlord is the Government: Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said Sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. .... 15. Thesaid provision can be vivisected as follows: .(a) A tenant shall not be evicted either in execution of a decree or otherwise and he or she can be evicted either under the provisions of Section 10 or under Sections 14 to 16 of this Act. .(b) The provisions of Section 10 of this Act are not applicable in a case, where landlord is Government. .(c) If a tenant denies the alleged title of the landlord or claims right of permanent tenancy, the only Course open to the landlord is to file a petition under this Section so as to get a finding to the effect as to whether such a denial or claim is bona fide. If the Rent Controller gives a finding to that effect, the next course open to the landlord is to file a suit for eviction in a civil court and then only the civil Court is competent to pass a decree for eviction on any of the grounds mentioned in this section. 16. With these legal backdrops, the Court has to further analyse the rival case of the plaintiff and defendant. 17. 16. With these legal backdrops, the Court has to further analyse the rival case of the plaintiff and defendant. 17. The learned counsel appearing for the appellant/defendant has laconically contended that the specific case of the plaintiff is that the defendant has been enjoying the suit property as his tenant on a monthly rental of Rs.75/- and the specific case of the defendant is that the suit property has been given to her husband in a family arrangement and he made improvements by way of spending Rs.20,000/- and after his demise, the defendant and her family members are enjoying the suit property as of its rightful owners and therefore, the defendant claims right of permanent tenancy and she also denies the alleged title of the plaintiff. Under the said circumstances, the plaintiff ought to have filed a petition under section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. But the plaintiff has failed to invoke the said provision and directly filed the present suit for the reliefs of declaration, recovery of possession and also for future mesne profits. Under the said circumstances the Civil court has no jurisdiction to entertain the present suit and therefore, the concurrent Judgments and decrees passed by the Courts below are totally illegal and also void. In support of his contention, he has drawn the attention of the Court to the following decisions: (a) In M/s.East India Corporation Ltd, V. Shree Meenakshi Mills Ltd., (AIR 1991 Supreme Court 1094), the Honourable Apex Court has held as follows: What is stated in the second provision is Section 10(1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of eviction. But the jurisdiction cannot be invoked otherwise than as stipulated in the second proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16, notwithstanding that the Court has found that the tenants denial of the landlords title does not involve forfeiture of the lease, or, his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute. Further it is held that ".... It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its Judgment and decree would be nullities. The Honourable Apex Court has vividly held that if the concerned tenant has denied title of the landlord, or claims right of permanent tenancy, the concerned landlord ought to have obtained a finding under section 10(1) (second proviso) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and only after getting necessary finding, he can institute a suit in a civil forum so as to evict the tenant under any of the grounds mentioned in the said section. Further it is held that a decree passed by a Court without jurisdiction is nothing but nullity and defect of jurisdiction whether it is pecuniary or territorial can be raised even at the stage of execution or in collateral proceedings. Further it is held that a decree passed by a Court without jurisdiction is nothing but nullity and defect of jurisdiction whether it is pecuniary or territorial can be raised even at the stage of execution or in collateral proceedings. Further the Court, which passed a decree is nothing but coram non judice (before a Judge or Court that is not the proper one, or that cannot take legal cognizance of the matter). 18. In R.M.Sundaram @ Meenakshi Sundaram and another Vs. The Correspondent, National Elementary school, Pundarigakulam, Vadakarai, Nagapattinam ( 1998 (I) CTC 195 ), this Court has held that "denial of title of landlord by tenant -Rent Controller has to give finding that such denial of title is bona fide. Such finding is condition precedent for a Civil Court to decide title and direct eviction". Further this court has held that "there are two provisos to Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the Second Proviso says that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said Sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded." 19. In fact the decision reported in AIR 1991 Supreme Court 1094 (M/s.East India Corporation Ltd, V. Shree Meenakshi Mills Ltd.,), acts as a precursor of the Judgment rendered by this Court. In fact the decision reported in AIR 1991 Supreme Court 1094 (M/s.East India Corporation Ltd, V. Shree Meenakshi Mills Ltd.,), acts as a precursor of the Judgment rendered by this Court. From the conjoint reading of the decisions referred to supra, the ultimate corollary is that if a tenant denies the alleged title of his or her landlord or claims right of permanent tenancy, the next course open to the landlord is to file a petition under the second proviso of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the Rent Controller should give a necessary finding to the effect as to whether the denial or claim is bona fide or not and after getting a finding to that effect, a civil suit can be filed for eviction of the tenant on any of the grounds mentioned in the said section or under sections 14 to 16. 20. In the instant case, as elucidated earlier, the defendant has clearly denied the alleged title of the plaintiff and she also sets up a permanent tenancy over the suit property. Since the defendant has clearly denied the title of the plaintiff and also sets up permanent tenancy over the suit property, the plaintiff ought to have invoked the second proviso of Section 10(1) of the said Act and only after getting a finding from the concerned Rent Controller, he can file a suit for eviction. But the plaintiff has failed to follow the aforesaid legal procedure. Since the plaintiff has failed to follow the aforesaid legal procedure, it is needless to say that the trial Court as well as the first appellate Court are nothing but corams non judice and the concurrent Judgments passed by the courts below are also nothing but nullities. 21. The additional substantial question of law formulated in the present second appeal is as to whether the present suit is not legally maintainable in view of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It has already been discussed in detail that without invoking the said provision, the present suit is not legally maintainable. Therefore, it is pellucid that the additional substantial question of law formulated in the present second appeal is decided in favour of the appellant/defendant. 22. Now the Court has to look into the fatuous exercises made on the side of the respondent/plaintiff. 23. Therefore, it is pellucid that the additional substantial question of law formulated in the present second appeal is decided in favour of the appellant/defendant. 22. Now the Court has to look into the fatuous exercises made on the side of the respondent/plaintiff. 23. The learned counsel appearing for the respondent/plaintiff has vehemently contended that the respondent/plaintiff is the absolute owner of the suit property and the appellant/defendant has been enjoying the same as a tenant and since the appellant/defendant has denied the title of the respondent/plaintiff, the present suit has been instituted and the same is legally maintainable and further the suit property is not only a building but also a vacant site and on that ground also the present suit is legally maintainable and the Courts below after considering the rival evidence adduced on either side, have rightly rejected the contention urged on the side of the appellant/defendant and therefore, the concurrent judgments passed by the courts below do not warrant interference. 24. Infact, the learned counsel appearing for the respondent/plaintiff has accited the following decisions in support of his contention. (a) In Subbiah Pannaiyar V. Shanmugavelayudham and others 1997 (1) MLJ 103 , this Court has held that "in the present case, the property scheduled in the plaint is not only a building but also the property where it is situated, i.e., property of an extent of two and a quarter cents and the hut situated therein. The suit was for a declaration of title in respect of the land and building and the recovery is sought for in respect of the land also. The civil court is competent to decide on the ownership over the suit property and ownership over the building. That is not something which comes within the jurisdiction of the Rent Controller. The scope of enquiry under the second proviso to Section 10(1) of the Rent Control Act is confined to the status of landlord and tenant which has nothing to do with the title to the property. Hence so far as the ownership of the building and the title to the property is concerned the second proviso to Section 10(1) of the Rent Control Act will not be a bar for filing a civil suit. But the right of the plaintiffs to recover the building on the basis of the rental arrangement will be barred. Hence so far as the ownership of the building and the title to the property is concerned the second proviso to Section 10(1) of the Rent Control Act will not be a bar for filing a civil suit. But the right of the plaintiffs to recover the building on the basis of the rental arrangement will be barred. At the most, it can be held that the plaintiff will not be entitled to get recovery of the building and to that extent, the relief cannot be granted." 25. From the close reading of the decision referred to supra, two things are made clear. .(a) If a suit has been instituted in respect of a building as well as a vacant site, relief can be granted in respect of vacant site. .(b) With regard to building, the relief claimed in the suit cannot be granted. 26. In the instant case, in the plaint it is averred to the effect that the demised building is situate in a portion of the suit property and the remaining portion is a vacant site. But in the written statement, at paragraph-5 it has been clearly stated that the measurements given to the demised building in the plaint are totally false. Therefore, a primordial duty is cast upon the plaintiff to prove that the demised building is situate in a portion of the suit property and the remaining portion of the suit property is a vacant site. But the plaintiff has not proved the same. Even assuming without conceding that the denial made in the written statement is not genuine, so far as the building mentioned in the plaint is concerned, the present suit is not legally maintainable in view of the decision rendered by this Court. (b) In Sankarlal Jain V. R.Kalavathi Ammal and two others (1990 (1) LW 97), this Court has held that "as per exemption mentioned in Section 30 (ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, a civil suit is legally maintainable". 27. Of course, it is true that as per section 30 of the said Act, a Civil Suit is legally maintainable, since exemption has been granted therein. The suit property does not come within the purview of the said section and therefore, the said decision is not applicable to the facts of the present case. 27. Of course, it is true that as per section 30 of the said Act, a Civil Suit is legally maintainable, since exemption has been granted therein. The suit property does not come within the purview of the said section and therefore, the said decision is not applicable to the facts of the present case. .(c) In S.Jaganathan Rao and four others V. M.G.Vital Rao ( 1997 (2) MLJ 461 ), this Court has held that "when the defendants 2 to 5 had specifically denied the title of the respondent herein, then, there is no question of the existence of landlord and tenant relationship between the parties. Under the said circumstances civil suit is maintainable." In fact, the decision rendered by the Honourable Apex Court reported in AIR 1991 Supreme Court 1094 (M/s.East India Corporation Ltd, V. Shree Meenakshi Mills Ltd.,) has not been brought to the notice of this Court and under the said circumstances, this court has held that the civil suit is maintainable as stated above and therefore, the finding given by this Court in the decision referred to supra cannot be followed. .(d) In Dhandapani (died) and others V. Karpakam and others ( 2003 (2) MLJ 732 ), this Court has held that "on the point of denial of title by the tenant, the civil suit is maintainable, without resorting to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960", wherein also the decision rendered by the Honourable Apex Court in M/s.East India Corporation Ltd, V. Shree Meenakshi Mills Ltd., (AIR 1991 Supreme Court 1094) has not been brought to the notice of the Court. Under the said circumstances, this court has held as stated supra and therefore, the dictum mentioned in the said decision cannot be attuned in the present cast. .(e) In Ramesh Chand Ardawatiya V. Anil Panjwani (AIR 2003 SC 2508), the Honourable Apex Court has held that "the concerned dispute does not come within the ambit of section 75 (1) or 75(2) of Rajasthan Act and therefore, Civil courts jurisdiction is not excluded." 28. .(e) In Ramesh Chand Ardawatiya V. Anil Panjwani (AIR 2003 SC 2508), the Honourable Apex Court has held that "the concerned dispute does not come within the ambit of section 75 (1) or 75(2) of Rajasthan Act and therefore, Civil courts jurisdiction is not excluded." 28. In the instant case, as per second proviso of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, concerned Civil court is having jurisdiction only on the basis of finding given by the concerned Rent Controller and therefore, the jurisdiction of Civil Court is impliedly ousted initially and it gets its jurisdiction only on the basis of the finding given by the Rent controller. Therefore, it is quite clear that the facts and circumstances mentioned in the decision referred to supra are not suitable to the present case. (f) In Ramendra Kishore Biswas V. State of Tripura and others ( AIR 1999 SC 294 ), the Honourable Apex Court has held that "the relevant Service Rules neither expressly nor by implication have taken away jurisdiction of civil Court to deal with service matter". Under the said circumstances, it is not proper at the stage of second appeal to raise a question to the effect that the civil Court has no jurisdiction. 29. In the instant case, even at the risk of jarring repetition the Court would like to point out that as per second Proviso of section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, jurisdiction of civil court is impliedly barred at initial stage and it gets its jurisdiction only on the basis of finding given by the concerned Rent Controller and therefore, it is needless to say that the facts and circumstances of the present case are totally alien to the facts and circumstances of the case mentioned supra and due to that the decision mentioned supra is not applicable to the present case. 30. It has already been discussed in detail that the present suit is not legally maintainable in view of the second proviso of section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Therefore, the entire argument advanced by the learned counsel appearing for the respondent/ plaintiff is totally sans merit. 31. The present suit has been instituted for the reliefs of declaration, recovery of possession and also for future mesne profits. Therefore, the entire argument advanced by the learned counsel appearing for the respondent/ plaintiff is totally sans merit. 31. The present suit has been instituted for the reliefs of declaration, recovery of possession and also for future mesne profits. The trial Court has granted a decree for the reliefs of declaration and recovery of possession. The first appellate Court has also confirmed the Judgment and decree passed by the trial Court. It has already been discussed in detail and ultimately found that the present suit is not legally maintainable. The only remedy available to the respondent/plaintiff is to file a petition under the second proviso of section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 so as to get a finding and after getting the same, he has to touch competent civil forum so as to evict the appellant/defendant under any one of the grounds mentioned in the said section or under sections 14 to 16. Therefore, viewing from any angle, the concurrent Judgments passed by the Courts below are liable to be set aside since they are nothing but nullities. 32. The first substantial question of law formulated in the present second appeal is as to whether the appellant/defendant is entitled to get the benefits of section 51 of the Transfer of Property Act. Since additional question of law has been discussed in extenso and decided in favour of the appellant/defendant, the first substantial question of law formulated in the present second appeal need not be decided. 33. In fine, this second appeal is allowed without cost. The Judgment and decree passed in Original Suit No.7 of 1990 by the District Munsif Court, Ambasamudram, upheld in Appeal Suit No.7 of 1994 by the Sub Court, Ambasamudram are set aside. The suit filed in Original Suit No.7 of 1990 on the file of the District Munsif Court, Ambasamudram is dismissed without cost.