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2014 DIGILAW 2164 (MAD)

U. Shahul Hameed v. Rajagopal

2014-07-17

R.KARUPPIAH

body2014
JUDGMENT 1. The revision petitioner/tenant filed this Civil Revision Petition against the judgment and decree made in R.C.A.No.32 of 2006, wherein, the order and decretal order passed in R.C.O.P.No.65 of 2003 were reversed. 2. For the sake convenience, the tenant is referred as revision petitioner and the landlord is referred as respondent herein. 3. The respondent herein/landlord filed R.C.O.P.No.65 of 2003 for eviction under Section 10(2) (i) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1980. 4. The brief facts stated in the petition are as follows: In the above said petition, it is stated that the respondent is the absolute owner of the property by virtue of sale deed dated 12.05.1976 and he was in possession of the suit property. In the year 1976, one Mr.Usman requested the respondent to let the property for rent for running a two wheeler workshop. Accordingly, the respondent let him as a tenant. The above said Usman passed away on 27.12.1986. After his demise, one Mr.Ameenu Rehman who was working with the said Usman continued as a tenant in the premises till December 2002 and also he was paying Rs.850/- as monthly rent to the respondent till the end of December 2002. Subsequently, the revision petitioner, who was working as a learner under the said Ameenu Rehman became a tenant under the respondent from 01.01.2003 and the revision petitioner also agreed to pay a monthly rent of Rs.1,000/-. The revision petitioner had been regularly paying the rent till July 2003. Subsequently, he had wilfully failed to pay the monthly rents, in spite of several demands. Further the revision petitioner undertook to deliver the vacant possession on or before 31.10.2003 and also assured to pay the arrears of rent, while vacating the premises. The revision petitioner wantonly locked the property on 31.10.2003. The revision petitioner, suppressing all these particulars had filed a suit in O.S.No.780 of 2003 on the file of the Additional District Munsif, No.I, Salem. Knowingly, denying the title of the respondent, the revision petitioner was also claiming right, title in respect of the petition mentioned premises. Therefore, the revision petitioner wilfully failed to pay the monthly rent from July 2003 onwards and also wantonly denied the title of the respondent and therefore, he filed a petition for eviction. 5. Knowingly, denying the title of the respondent, the revision petitioner was also claiming right, title in respect of the petition mentioned premises. Therefore, the revision petitioner wilfully failed to pay the monthly rent from July 2003 onwards and also wantonly denied the title of the respondent and therefore, he filed a petition for eviction. 5. The revision petitioner herein/tenant filed a detailed counter in the above said petition, in which he denied various averments made in the petition. The revision petitioner has stated in the counter that the alleged sale deed dated 12.05.1976 is no way connected with the suit premises. It is also specifically denied that the revision petitioner's father Usman was a tenant under the respondent and after his demise, Ameenu Rehman was a tenant under the respondent till 2002 and the monthly rent at Rs.850/- has been paid by Ameenu Rahman are all false. According to the revision petitioner, his father was running a two wheeler automobile workshop in the land of one Chellammal from 1960 onwards. After putting up a thatched shed and subsequently converted into a tiled house at his costs, and he was in possession till his demise. After his demise, the revision petitioner is in continuous possession and enjoyment of the property till date. There is no relationship of landlord and tenant between the respondent and the revision petitioner's father Usman at any point of time. In the same manner, there is no relationship of landlord-tenant between the revision petitioner and respondent. The revision petitioner or his father Usman never paid any rent to the respondent. The revision petitioner already filed a suit against the respondent for the relief of declaration and permanent injunction in O.S.No.780 of 2003 on the file of the District Munsif Court, Salem and denied the title of the respondent herein. Only after appearance in the above said suit, the respondent filed this vexatious petition. Since there is no relationship of landlord and tenant between the respondent and the revision petitioner, the Rent Control Court has no jurisdiction to decide the matter. Therefore, prayed for dismissal of the above said petition. 6. The Rent Controller considered both side's submissions and finally held that the respondent has failed to prove the relationship between the parties and finally dismissed the above said petition, filed by the respondent. 7. Therefore, prayed for dismissal of the above said petition. 6. The Rent Controller considered both side's submissions and finally held that the respondent has failed to prove the relationship between the parties and finally dismissed the above said petition, filed by the respondent. 7. Aggrieved over the above said dismissal order passed by the Rent Controller, the respondent preferred a Rent Control Appeal in R.C.A.No.32 of 2006 before the Rent Control Appellate Authority. The Rent Control Appellate Authority, after considering the submissions of both side and oral and documentary evidence, set aside the dismissal order passed by the Rent Controller and allowed the eviction petition filed by the respondent. 8. Aggrieved over the above said reversal finding of the Rent Control Appellate Authority, this Civil Revision Petition has been filed by the revision petitioner/tenant. 9. The learned counsel appearing for the revision petitioner/tenant has submitted that the Rent Control Appellate Authority has not properly considered the fact that the respondent has miserably failed to prove the existing relationship of landlord and tenant and further the respondent has not discharged the burden to prove the title over the disputed property. The learned counsel further submitted that even prior to filing of the eviction petition by the respondent, the revision petitioner had filed a suit in O.S.No.780 of 2003 for declaration and permanent injunction. In the above said circumstances, the eviction petition filed by the respondent is not at all maintainable. 10. The learned counsel appearing for the revision petitioner has further pointed out that the description of the property given in the alleged Ex.A.1 sale deed, dated 12.05.1976 produced by the respondent is differed from the description of the petition mentioned property in the eviction petition, but, the appellate authority has not considered the above said fact. The learned counsel further pointed out that the Rent Control Appellate Authority has not considered the fact that absolutely there is no evidence to prove the contention of the respondent that the revision petitioner or his predecessor became the tenant under the respondent and therefore, the findings of the appellate court is absolutely perverse and also illegal and hence prayed for to set aside the above said judgment and decree passed by the appellate authority. 11. Per contra, the learned counsel appearing for the respondent/landlord, would submit that the respondent has proved the title by producing Ex.A.1-title deed. 11. Per contra, the learned counsel appearing for the respondent/landlord, would submit that the respondent has proved the title by producing Ex.A.1-title deed. But the revision petitioner has not proved the contention stated in the counter by adducing reliable oral and documentary evidence and therefore, the Rent Control Appellate Authority has correctly reversed the order of the Rent Controller. Further the learned counsel appearing for the respondent submitted that the appellate authority discussed about Ex.P.1 and P.10, sale deeds produced by the respondent and held that except the difference in door numbers, all other details would prove that documents are related to the same property and therefore, the above said findings are not perverse findings. Further, the learned counsel appearing for the respondent submitted that the respondent produced Ex.P.6, the rental agreement dated 23.08.1988 between the respondent and the earlier tenant and therefore, the appellate authority rightly held that the revision petitioner is tenant under the respondent and further the respondent has failed to pay the rent. Therefore, the learned counsel submitted that the appellate authority correctly set aside the order passed by the Rent Controller and allowed the appeal and directed the revision petitioner to evict the petition mentioned premises and there is no need to interfere with the above said correct findings. 12. Admittedly, the respondent/landlord filed the eviction petition under Sections 10(2) (i) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent) Control Act on two grounds viz., i) Wilful default ii)Denial of title. The revision petitioner has specifically denied the landlord and tenant relationship and also claims title and possession over the property. The Rent Controller has discussed the oral and documentary evidence adduced on either side and finally held that the respondent herein miserably failed to prove the fact that the respondent became a tenant from 01.01.2003 as stated in the petition. Further, the Rent Controller has discussed the description of the document of title, Ex.A.1-sale deed, dated 12.05.1976 produced by the respondent and the description of the schedule of the property in the eviction petition and finally held that there was a difference in door numbers in both documents. Further, the Rent Controller has discussed the description of the document of title, Ex.A.1-sale deed, dated 12.05.1976 produced by the respondent and the description of the schedule of the property in the eviction petition and finally held that there was a difference in door numbers in both documents. Further, the Rent Controller has held that already the revision petitioner had filed the suit in O.S.No.780 of 2003 as per Ex.A.5 and it is pending and during the pendency of the above said suit, this petition has been filed and therefore, the petition filed by the respondent for eviction is not maintainable. 13. The Rent Control Appellate Authority has held as if subsequent to the purchase of the property under Ex.P.1 sale deed, the door number was changed and therefore except the difference in door numbers, the other details of the property revealed that both the description of the property are same. Further, the Rent Control Appellate Authority has also held that from the oral testimonies of P.Ws.1 & 2, the respondent/landlord proved the relationship of landlord and tenant. 14. On a perusal of the judgment of the Rent Control Appellate Authority, it is revealed that the appellate authority has not at all considered the fact that the revision petitioner/tenant already filed a civil Suit and seeking the relief of declaration and injunction against the respondent herein before the Civil Court and it is pending and during the pendency of the above said suit, this eviction petition has been filed by the respondent as if the revision petitioner is tenant under the respondent. The first appellate court has also not properly considered the fact that the denial of title by the revision petitioner is bonafide. 15. As rightly pointed by the learned counsel appearing for the revision petitioner/tenant, absolutely, there is no documentary evidence to prove the fact that the respondent is landlord and the revision petitioner is tenant under the respondent, except the oral testimonies of respondent's side evidence. Further as discussed by both the Courts below, there is difference in door number also. As already discussed, prior to filing of this petition for eviction, the revision petitioner had filed a civil suit before the competent civil Court and it is pending. Except the oral evidence, there are no documentary evidence to prove that the revision petitioner paid any rent accepting the tenancy. As already discussed, prior to filing of this petition for eviction, the revision petitioner had filed a civil suit before the competent civil Court and it is pending. Except the oral evidence, there are no documentary evidence to prove that the revision petitioner paid any rent accepting the tenancy. Therefore, as rightly discussed and held by the Rent Controller, the respondent/landlord failed to prove the landlord and tenant relationship and hence, rightly dismissed the above said revision petition filed by the respondent. 16. But, the Rent Control Appellate Authority has not properly considered the bonafide denial of the title by the revision petitioner and also not properly considered the suit already filed by the revision petitioner claiming title and possession over the suit property and also not considered the fact that the respondent herein not produced any document to prove the tenancy as stated in the petition. Therefore, the findings of the Rent Control Appellate Authority are perverse and also illegal, as rightly pointed out by the learned counsel appearing for the revision petitioner. 17. The learned counsel appearing for the revision petitioner further pointed out that the Rent Control Appellate Authority has received an additional document produced by the respondent and marked as Ex.P.10 before the appellate court, without giving reasonable opportunity to the revision petitioner and discussed about the document and on the basis of the above said document, the appellate authority has set aside the order passed by the Rent Controller, which is highly illegal. To substantiate the above said contention, the learned counsel relied on a decision reported in 2007 (3) CTC 456 (T.Tamilarasan Vs Arokkioasamy and another), in which, paragraph No.12 reads as under: “Order 41, Rules 27 and 28, CPC contemplates the procedure to be followed for production of additional evidence in the Appellate Court. The said provision stated as follows: 27. Production of additional evidence in Appellate Court.- (1)The parties to an Appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. The said provision stated as follows: 27. Production of additional evidence in Appellate Court.- (1)The parties to an Appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But, if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 28. Mode of taking additional evidence:-Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the Appeal is preferred, or any other Subordinate Court, to take such evidence and to send it when taken to the Appellate Court.” 18. As rightly pointed out by the learned counsel appearing for the revision petitioner, the Appellate Authority has not taken any evidence to prove the document is true and valid. Therefore, the findings of the Rent Control Appellate Authority, on the basis of additional document Ex.P.10 is also illegal, as rightly pointed out by the learned counsel appearing for the revision petitioner. 19. From the above said discussions, this Court is of considered view that the order passed by the Rent Controller is valid in law and the decree and judgment passed by the Rent Control Appellate Authority are perverse and also illegal and therefore, this revision petition is to be allowed. 20. In the result, this Civil Revision Petition is allowed and the judgment and decree passed by the Rent Control Appellate Authority made in R.C.No.32 of 2006 are set aside and confirmed the fair and decretal order passed in R.C.O.P.No.65 of 2008, by the Rent Controller/II Additional District Munsif Court, Salem. Consequently, connected M.P.No.1 of 2010 is closed. 20. In the result, this Civil Revision Petition is allowed and the judgment and decree passed by the Rent Control Appellate Authority made in R.C.No.32 of 2006 are set aside and confirmed the fair and decretal order passed in R.C.O.P.No.65 of 2008, by the Rent Controller/II Additional District Munsif Court, Salem. Consequently, connected M.P.No.1 of 2010 is closed. There is no order as to costs.