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2015 DIGILAW 154 (MAD)

G. Radhakrishnan v. S. Mahendran

2015-01-12

K.KALYANASUNDARAM

body2015
Judgment :- This revision arises out of the order dated 31.01.2014 passed by the Appellate Authority, Sub Court, Poonamallee in RCA No.7 of 2011. 2. The petitioners are the landlords of the property bearing Door No.326, MTH Road, Ambattur, Chennai. They filed an eviction petition against the respondent in RCOP No.2 of 1998 on the grounds of wilful default, denial of title and for demolition & re-construction. 3. The case of the landlords is that the respondent was inducted as a tenant on a monthly rent of Rs.100/- but the tenant was irregular in payment of rent; that the tenant failed to pay rent from the month of September 1995 and he was in arrears of rent for he past 28 months. The landlords issued notice dated 11.10.1997 to the respondent to pay the arrears of rent and also for future rents, but the tenant failed to pay the rent even after receipt of notice. It is further contended that the tenant denied the title of the landlords, which is not bonafide and the building is 60 years old and it requires demolition and re-construction. 4. The tenant opposed the eviction petition contending that the petitioners are not the landlords and the respondent is not the tenant. The respondent further contended that the land is a poramboke land belonging to the Government and the building belongs to the respondent. The respondent's father had put up superstructure, obtained electricity service connection and the property was assessed for tax and he was paying the property tax. It is further stated that the petitioners attempted to dispossess the respondent and other three shop owners by force and hence the respondent filed suit in O.S.No.5 of 1997 against the petitioners and obtained interim injunction. The respondent is not liable to pay rent as the premises belongs to him and he also disputed the requirement of the petition premises for demolition and re-construction. 5. Before the Rent Controller, the parties have adduced oral and documentary evidence. After analysing the evidence o n record, the learned Rent Controller ordered eviction on the grounds of willful default and denial of title while rejecting the ground of demolition and re-construction. Aggrieved by the order, the tenant filed an appeal in RCA No.7 of 2011. The Appellate Authority, allowed the appeal holding that the landlords have not established the jural relationship. Aggrieved by the order, the tenant filed an appeal in RCA No.7 of 2011. The Appellate Authority, allowed the appeal holding that the landlords have not established the jural relationship. Challenging the order of the appellate authority, the petitioners have preferred the present revision. 6. Mr. B.Harikrishnan, learned counsel appearing for the petitioners submitted that the Appellate Authority erred in holding that there is a dispute with regard to title of the petition property; that the appellate authority have not properly appreciated the evidence on record before coming to the conclusion that the landlords have not produced any single document to establish the landlord – tenant relationship; that the tenant has admitted the relationship of the parties in Ex.P6, plaint filed in O.S.No.611 of 1995; that the Rent Controller, in a well considered order held that the landlords proved the relationship, however, the Appellate Authority, without assigning valid reasons reversed the finding of the Rent Controller. 7. The learned counsel for the petitioners further submitted that the tenant has filed frivolous suits in O.S.No.5 of 1997, O.S.No.335 of 1997 and O.S.No.611 of 1995 only for bare injunction. The suit O.S.No.5 of 1997 was allowed to be dismissed for default on 07.10.1999 and O.S.No.335 of 1997 was dismissed as withdrawn on 29.09.2003. The suit in O.S.No.611 of 11995 was dismissed after trial on 15.07.2003. Ex.R18, decree passed in A.S.No. 21 of 2003 would show that the Subordinate Judge, Poonamalee has allowed the appeal granting decree in favour of the tenant restraining the landlords from evicting the tenant except by due process of law. Another suit filed by the tenant in O.S.No.230 of 2004 for bare injunction was also dismissed. 8. The learned counsel further contended that the tenant has not prayed for declaration of his title to the suit property; that the Government has assigned 11 cents in favour of the landlords under Ex.P2, but the tenant, by making false entries in Ex.C3 - adangal, claims right over the property. When the name of the tenant does not reflect in Ex.C1, the false entries made in Exs.B1 and C3 were subsequently deleted by the Tahsildar, Ambattur dated 20.12.2013. The learned counsel further submitted that Exs.P2 to P6 would clearly reveal that the petition premises belongs to the landlords and the tenant / respondent herein is not the owner of the premises. The learned counsel further submitted that Exs.P2 to P6 would clearly reveal that the petition premises belongs to the landlords and the tenant / respondent herein is not the owner of the premises. Therefore, the finding of the Appellate Authority holding that there is a serious dispute with regard to the title of the property cannot be sustained. 9. On the other hand, Mr. AR.L. Sundaresan, learned Senior Counsel appearing for the respondent submitted that the tenant has disputed the relationship of the parties and so the Rent Controller has to find out whether the denial is bonafide or not. If the finding is in affirmative, the landlords have to approach Civil Court seeking recovery of possession and the Rent Controller has no jurisdiction to order eviction. The learned Senior Counsel further submitted that the landlords have not established landlord-tenant relationship and even if the tenant could not establish his right, the Rent Controller cannot hold that the respondent is a tenant and he is liable to be evicted. 10. The learned Senior Counsel further submitted that the Rent Controller, without rendering finding with regard to the bonafide of the denial of the title, ordered eviction which was rightly reversed by the Appellate Authority. Since there is a serious dispute with regard to the title of the property, the landlords have to approach the Civil Court for declaration and recovery of possession. It is further contended that the burden of proof is on the landlords to establish his right over the property, as held by the Apex Court in 2002 (3) SCC 98 [J.J. Lal Pvt. Ltd. and others v. M.R. Murali and another]. 11. It is seen that Ex.P2 is the assignment patta issued by Special Tahsildar, Saidapet, Chennai assigning 11 cents in favour of the landowners. Ex.C1 is the Village No.7 Account for S.No.634/4 relating to Fasali 1408. Neither the name of the respondent nor his father's name reflect in Ex.C1. However, in Ex.R1, adangal, S.Senthoor Pandian, the name of the respondent's father is reflected in Srl.No.19A. It is the contention of the landlords that false entries were made in Exs.R1, which has been deleted after due enquiry by the Tahsildar, Ambattur. Admittedly, the name of the respondent does not reflect in Ex.C3 – adangal, extract issued for Fasali 1406 & 1407. It is the contention of the landlords that false entries were made in Exs.R1, which has been deleted after due enquiry by the Tahsildar, Ambattur. Admittedly, the name of the respondent does not reflect in Ex.C3 – adangal, extract issued for Fasali 1406 & 1407. Ex.C4 is letter issued by Tahsildar, Ambattur dated 12.02.2002 to the Special Tahsildar, Land Survey, Ambattur seeking clarification about the assignment of land of 11 cents in favour of Gopalakrishnan in Survey No.634/4 of Ambattur Village in which the father of the respondent claims right. Ex.C5 is the letter of Special Tahsildar dated 20.02.2002 stating that the disputed land of 11 cents was allotted to Gopalakrishnan and Radhakrishnan, Vijayakumar, Janardhanam, Harikrishnan and Rajakanthammal are the family members of Gopalakrishnan. 12. Exs.P9 is the report filed by the Advocate Commissioner alongwith sketch in O.S.No.335 of 1997 and Ex.P10 is the advocate notice dated 11.10.1997. It is to be noted that the Advocate Commissioner inspected the suit property on 08.03.1998 and in the report, it is specifically stated that four shops constructed in the front portion of the suit property is a single concrete roof. Though the respondent/tenant claims title over one of the shops, i.e. the petition property, he has not produced even single piece of evidence for having constructed superstructure in the petition premises, nor it is the case of the tenant, he joined with the occupants of the other three shops and constructed them under one roof. As rightly contended by the learned counsel for the petitioners, in none of the suits, the tenant sought for declaration of title over the property nor he established his right in the Civil Suits. If really the tenant is the owner of the petition property, he should have filed suit for declaration of title and for consequential prayer of permanent permanent injunction. The prayer sought for by the tenant in O.S.No.868 of 1997 is for permanent injunction restraining the landlords from evicting the tenant except by due process of law. 13. The main contention of the tenant is that the landlords were assigned only six cents of land, but by playing fraud, they got assignment of 11 cents under Ex.P2. The learned Senior Counsel for the respondent contended that the assignment of land is in violation of the Government Order. Indisputably, the assignment made in favour of the landlords under Ex.P2 is still in force. The learned Senior Counsel for the respondent contended that the assignment of land is in violation of the Government Order. Indisputably, the assignment made in favour of the landlords under Ex.P2 is still in force. Therefore, the tenant cannot question the assignment order in the eviction proceedings. As per the assignment, Ex.P2, the landlords are the owners of the land to an extent of 11 cents in S.F.No.634/4 of Ambattur Village. 14. It is further seen from the order passed in CRP NPD Nos.4212, 4213, 4534 of 2010 & 3718 of 2011 filed by the other tenants namely, Issac Paranjothi, Esther, Grace Litya, Selvi Efshiba Gnanam, Munuswamy and Adhul Nazar, this Court, after elaborately considering their case, held that they are tenants under the landlords and they have committed wilful default and their denial of title was not bonafide. The other tenants have also filed similar suit in O.S.No.316 of 1996 praying for permanent injunction restraining the landlords from interferring with the peaceful possession and enjoyment of the respective buildings, except by due process of law. The relevant paragraph reads as follows - “15. The prayer in the said suit was only for a permanent injunction restraining the respondents/landlords from interfering with the petitioner's peaceful possession and enjoyment of the respective buildings, except by due process of law. 16. Therefore, it is very clear that the petitioners themselves had approached the Civil Court on the sole premise that they were in ducted as tenants in respect of the properties in question and that they were paying rents upto a particular point of time and that they are entitled to the protection of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. After having pleaded statutory tenancy before the Civil Court in 1997, it was not open to the petitioners in 1998 to deny the title of the landlords, in the proceedings before the Rent Controller. Therefore, the Rent Controller as well as the Appellate Authority concurrently held that the denial of title by the petitioners was not at all bonafide and that the default committed by the petitioners was wilful. Thus, it is virtually an open-and shut case where (i) denial of title was borne out by the averments in the petition for eviction; and (ii) the denial was proved to be not a bonafide denial by the very plaint filed by the petitioners before the Civil Court. Thus, it is virtually an open-and shut case where (i) denial of title was borne out by the averments in the petition for eviction; and (ii) the denial was proved to be not a bonafide denial by the very plaint filed by the petitioners before the Civil Court. Therefore, there are absolutely no grounds to interfere with the concurrent orders of eviction.” 15. In the case on hand, the landlords have categorically stated that the tenant paid rent upto August 1995 but consequently failed and neglected to pay the rent. The landlords issued notice dated 11.10.1997 to the tenant. Ex.P11, returned cover reveals that even after intimation, the tenant failed to receive the notice. 16. Exs.R2, R3 and R5 are the electricity meter cards standing in the name of Senthoor Pandian. Ex.R10 is the licence issued by the Asst. Commissioner, Civil Supplies in the name of Meenakshi Ammal, w/o Senthoor Pandian. Ex.R11 is the registration certificate in the name of Mahendra Stores issued by the Commercial Tax Officer, Ambattur Division. Ex.R12 is another licence, Ex.R13 is the licence for sale of kerosene and R14 is a fire service licence. The above documents would show that the father of the tenant namely Senthoor Pandian was in possession of the petition premises and he was carrying on business alongwith his wife Meenakshmi Ammal, however they do not support the case of the tenant to prove his title. The landlords have not disputed the fact that the tenant was carrying on business in the petition premises. 17. The main contention of the tenant is that his father had constructed the shops and he was the owner of the premises, as stated supra, the tenant has not produced any evidence to show that the shop was constructed by his father. Perusal of the plaint filed in the injunction suits would reveal that the tenant has not claimed title over the property. It is further seen that the suit filed by the tenant reached finality and on date, there is no civil suit is pending in any court. However, the Appellate Judge has observed in the order that admittedly they are several civil suits pending between the parties. 18. In 2002 (3) SCC 98 [J.J. Lal Pvt. Ltd. v. M.R. Murali], the Hon'ble Apex Court has held as follows - "18. However, the Appellate Judge has observed in the order that admittedly they are several civil suits pending between the parties. 18. In 2002 (3) SCC 98 [J.J. Lal Pvt. Ltd. v. M.R. Murali], the Hon'ble Apex Court has held as follows - "18. What amounts to denial of title, and whether such denial is bona fide or not, are the questions to be determined in the facts and circumstances of each case. As a general rule the vulnerability of denial of title by the tenant shall be tested by reference to rule of estoppel contained in Section 116 of the Evidence Act which estoppes the tenant from denying the title of the landlord at the commencement of the tenancy and the estoppel continues to operate so long as the tenant does not surrender possession over the tenancy premises to the landlord who inducted him in possession. The tenant is not estopped from denying the title of the landlord if it comes to an end subsequent to the creation of the tenancy nor is he estopped from questioning the derivative title of a transferee of his landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive. To operate against the tenant as providing a ground for eviction under Section 10 of the Act a mere denial of the title of the landlord is not enough; such denial has to be 'not bona fide'. 'Not bona fide' would mean absence of good faith or non genuineness of the tenant's plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be 'not bona fide'. Therefore, to answer the question whether an assertion of denial of landlord's title by the tenant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen." 19. In the present case, the landlords have produced ample evidence to prove that they are the owners of the petition premises and the tenant has failed to pay rent from September 1995. But the tenant has not produced any material in proof of his alleged title over the property. In the present case, the landlords have produced ample evidence to prove that they are the owners of the petition premises and the tenant has failed to pay rent from September 1995. But the tenant has not produced any material in proof of his alleged title over the property. It is to be seen that the tenant has specifically pleaded in the counter that the occupants of the other three shops are also the owners of the respective shops. This Court, in CRP Nos.4212 of 2010, etc. batch cases held that the other occupants are the tenants of the respective premises and they have committed wilful default. Applying the principles laid by the Hon'ble Supreme Court referred supra and in view of the evidence available on record, I am of the opinion that the denial of title by the tenant is not bonafide and the default in payment of rent is to be construed as a wilful default. 20. In view of the above finding, the order of the Appellate Authority in RCA No.7 of 2011 is set aside and the order passed by the Rent Controller in RCOP No.2 of 1998 is restored. 21. In the result, the Civil Revision Petition is allowed. No costs.