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2012 DIGILAW 805 (MAD)

Abdul Kareem v. Rabiabee

2012-02-15

T.S.SIVAGNANAM

body2012
Judgment :- 1. This revision petition filed, under Article 227 of the Constitution of India, is directed against the fair and decreetal order, dated 08.02.2002, in R.C.A.No.152 of 1991, on the file of the VII Judge, Small Causes Court, Chennai, confirming the order in M.P.No.278 of 1990, in RCOP.No.1572 of 1989, dated 04.02.1991, on the file of XII Judge, Small Causes Court, Madras. 2. The petitioner is the tenant and the respondents are the landlords. The landlord filed RCOP No.1572 of 1989, for eviction of the tenant from the petition premises on the ground of willful default in payment of rent. 3. The case of the landlord is that the petition premises bearing door No.16, Velayutham Street, Muthaiyalpet, Chennai – 1, was purchased by the landlord, Ribiabee from one Mr.Fiaz Ahamed on 02.12.1986 and the sale deed was registered in Bombay. After purchasing the property, she demanded payment of rent and since the tenant failed to pay the rent, the eviction petition was filed. During the pendency of the eviction petition, the landlord filed a petition in M.P.No.278 of 1990, under Section 11(4) of the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the 'Act'), claiming arrears of rent for the period from December 1986 to January 1990. The learned Rent Controller after enquiry, allowed the petition and directed the tenant to deposit the amount into Court on or before 21.02.1991. Challenging the said order, the tenant preferred an appeal in RCA.No.152 of 1991, before the learned Appellate Authority and the said appeal was dismissed, by judgment dated 08.02.2002. Aggrieved by the concurrent judgments, the present revision petition has been filed. 4. The learned counsel appearing for the landlord submitted that the revision petition has become infructuous, as the tenant failed to deposit the rent as directed in the application filed under Section 11(4) of the Act, the learned Rent Controller ordered eviction on 12.03.2002 and against the said order of eviction, the tenant preferred RCA.No.424 of 2002, before the VII Small Causes Court, Chennai and in the said proceedings, a memo of compromise was filed and recording the memo, the learned Appellate Authority dismissed RCA.No.424 of 2002, filed by the tenant, as settled out of Court, by judgment dated 11.08.2008 and therefore, nothing further survives for adjudication in this revision and the revision has become infructuous. 5. 5. However, the learned counsel for the revision petitioner submitted that the tenant was forcibly evicted and certain criminal proceedings have been initiated by the tenant against the landlord and therefore, the matter has not become infructuous. 6. The learned counsel for the petitioner submitted that the petitioner became a tenant under M.Abdul Kareem during 1979, for monthly rent of Rs.175/-with a oral condition that the tenant shall maintain the building and pay all taxes. Soon after, the tenancy M.Abdul Kareem died and after his demise, his daughter Julega Bi was collecting rents and she also subsequently died and since, there were no legal heirs, the property became ownerless and therefore, should vest with the Wakf Board. It is further submitted that the respondent is a total stranger and the respondent claims to have purchased the property from the son of Julega Bi and Sheik Usman Shaib, but the husband of Julega Bi is not Sheik Usman Shaib and therefore, the said sale transaction in favour of the respondent is fraudulent. The learned counsel further submitted that on the date of execution of sale deed by Fiaz Ahamed in favour of the respondent, he was only 19 years of age and these factors are very germane to decide the title to the property and the learned Rent Controller cannot decide this question and the matter ought to have been referred to the Civil Court for deciding the question of title. The learned counsel referred to the proviso to Section 10 of the Act and submitted that when, there is bonafide dispute regarding title, the learned Rent Controller cannot decide the issue. 7. The learned counsel further submitted that mere payment of rent to Rabia Bee, cannot be a ground and though, she had executed a power of attorney and when the power of attorney was in force, she could not have deposed in the proceedings. The learned counsel also elaborately referred to the findings of Courts below and submitted that Rabia Bee was never the landlady. The learned counsel further submitted that the Courts below concurrently erred in not deciding the question regarding the bonafide dispute as regards the title to the property and therefore, the orders deserve to be set aside. 8. The learned counsel also elaborately referred to the findings of Courts below and submitted that Rabia Bee was never the landlady. The learned counsel further submitted that the Courts below concurrently erred in not deciding the question regarding the bonafide dispute as regards the title to the property and therefore, the orders deserve to be set aside. 8. Per contra, the learned counsel for the respondent submitted that Rabia Bee was the sole and absolute owner of the property and the tenant did not dispute that he was a tenant under the previous owner Julega Bi. It is further submitted that documents from the year 1940, were produced before the Court to establish title and the trial Court passed a judgment after considering all the aspects, which has been affirmed by the learned Appellate Authority and such concurrent findings should not be interfered by this Court. 9. Heard the learned counsels for the parties and perused the materials available on record. 10. When judgment was reserved on 18.01.2012 in this revision petition, this Court passed an order, directing the Registry to call for the records from the lower Court in RCA No.152 of 1991, RCOP.No.1572 of 1989, M.P.No.278 of 1990 in RCOP.No.1572 of 1989 and RCA.Nos.424 and 427 of 2002. The said records were forwarded by the Registrar, Small Causes Court and received by the Registry of this Court on 03.02.2012. After perusal of the said records, this order is made. 11. On a perusal of the facts, which appears to be admitted by the parties that the original owner M.Abdul Kareem died leaving behind his only daughter Julega Bi. The petitioner has admitted that he has been paying rents to the said Julega Bi. The said Julega Bi was married to one Abdul Majeed and they did not have any issues and subsequently, she was married to one Sheik Usman Shaib and a male child was born to them, was named Fiaz Ahamed. The said Fiaz Ahamed the vendor, had been receiving rents and from the reply notice dated 22.07.1988, it is seen that the petitioner admitted that rents upto December 1996 was paid to Mr.Packeer Mohaideen, who was acting as the power agent of the owner of the premises. 12. Further, Exhibit P-16, which is the partition deed, dated 13.06.1988, entered into between Rabia Bee and her sister, has been marked. 12. Further, Exhibit P-16, which is the partition deed, dated 13.06.1988, entered into between Rabia Bee and her sister, has been marked. Further, the copy of the sale deed executed by Fiaz Ahamed in favour of Rabia Bee, has also been marked as Exhibit P-3 and proof to show that it is a registered document in the Sub-Registrar office, Bombay has been proved, by producing Exhibit P-1. The Court Exhibits C1 and C2 are the records produced from the Sub-Registrar Office, Chennai North to establish that the sale deed dated 02.12.1986, which was registered in the Sub-Registrar Office, Bombay, has been intimated and recorded in the Sub-Registrar Office, Chennai North. The learned Appellate Authority has elaborately analyzed this aspect and concurred with the findings of the learned Rent Controller. Further, from the records called for from the trial Court, it is seen that the main RCOP has been allowed and eviction has been ordered on 12.03.2002. Further, it is seen that there was a compromise and the appeal filed by the tenant against the order of eviction, has also been dismissed. The learned counsel appearing for the petitioner raised objection stating that no such compromise was arrived at However, the records show that a memo of compromise was recorded by the learned Appellate Authority in the appeal filed by the petitioner herein. 13. Be that as it may, since the main eviction petition itself has been allowed and eviction has been ordered on 12.03.2002 and the appeal filed against the said order of eviction having been dismissed, nothing further survives for adjudication in this revision petition. However, on the merits of the case also, it is held that the Courts below rightly appreciated the oral and documentary evidence and passed the order under Section 11 (4) of the Act, directing the tenant to pay the arrears of rent and in the absence of any perversity in the findings of the Courts below, this Court exercising jurisdiction under Section 25 of the Act, does not propose to convert itself into a second Court of first appeal. Accordingly, the Civil Revision petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.