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2017 DIGILAW 2149 (MAD)

Josephin v. Joplin Bervin

2017-07-21

T.RAVINDRAN

body2017
ORDER : 1. Impugning the fair and decreetal orders of the Rent Control Appellate Authority/Sub Judge, Thoothukudi, dated 27.06.2006, passed in R.C.A.No.17 of 2005, confirming the fair and decreetal orders of the learned Rent Controller/Principal District Munsif, Thoothukudi, dated 20.04.2005, passed in R.C.O.P.No.46 of 2004, the tenant has come forward with this civil revision petition. 2. The case of the respondent/landlady in brief is that the petition schedule property (hereinafter, referred to as “the property”) originally belonged to one Ganesan Chettiar and the landlady has purchased the same from the legal heirs of the erstwhile owner Ganesan Chettiar on 08.11.2000 and at the time of the purchase, the house bearing Door No.21 located in the property was not in existence as the same had already been destroyed and only a house bearing Door No.22 alone was in existence in the property. The revision petitioner was the tenant in respect of the house bearing Door No.21 under the erstwhile owner Ganesan Chettiar and on the destruction of the said house bearing Door No.21, the tenant had shifted her residence to the house bearing Door No.22, however, paying the rent in respect of the house bearing Door No.21 and the landlady, after her purchase of the property, had informed the tenant through a legal notice calling upon her to pay the rent to her, however, the tenant had not responded to the same by paying the rent, on the other hand, she had preferred O.S.No.91 of 2003 against the landlady and others seeking for the relief of permanent injunction that they should not evict her from the property unlawfully. The tenant had committed willful default in the payment of rent at Rs.150/- per month from November, 2000 onwards and for the past 45 months, the tenant had not paid the rent and also did not take any step to deposit the rent also and hence on the ground of wildul default, the tenant is liable to be evicted from the property. Further, according to the landlady, the building existing in the property is an old building and it is unfit for living and therefore, it is stated that if the building is demolished and a new building is constructed in the property, the same would fetch more income to the landlady and she has sufficient means to demolish the existing building and construct a new building in the property. Hence, on the ground of owner's occupation as well as demolition and reconstruction, it is stated that the tenant is liable to be evicted from the property. The landlady has also given an undertaking to the effect that she would demolish the existing building and construct a new building in the property within a particular period. It is also stated that the suit preferred by the tenant has been dismissed. Hence, the rent control original petition for eviction of the tenant. 3. The case of the revision petitioner/tenant in brief is that the rent control original petition is not maintainable both legally as well as factually. It is false to state that the landlady had purchased the property from the legal heirs of the erstwhile owner Ganesan Chettiar and the same is not admitted. The landlady has not mentioned the landlady – tenant relationship in her petition and further, even the quantum of rent has not been clearly mentioned in the petition and according to the tenant, her father was the tenant in the property under the erstwhile land owner and after his demise, the tenant continued to be the tenant in respect of the house bearing Door No.21 of the property and it is false to state that the tenant had occupied the house bearing Door No.22 and paying rent as if she is residing in the house bearing Door No.21. Inasmuch as the landlady had not clearly mentioned as to the purchase of the house bearing Door No.21 and there is no relationship of landlady - tenant, according to the tenant, she has been constrained to prefer O.S.No.91 of 2003 seeking for the relief of permanent injunction against the landlady and others. The tenant has not committed any wilful default as put forth by the landlady. Further, it is the case of the tenant that the case of the landlady that the building existing in the property is an old one and unfit for living and therefore, if the same is demolished and a new building is constructed thereon, it would fetch more income to the landlady. The above case of the landlady is not bona fide and on the said grounds, the landlady is not entitled to evict the tenant from the property. The rent control original petition preferred by the landlady is devoid of merits and hence, liable to be dismissed. 4. The above case of the landlady is not bona fide and on the said grounds, the landlady is not entitled to evict the tenant from the property. The rent control original petition preferred by the landlady is devoid of merits and hence, liable to be dismissed. 4. In support of the case of landlady, P.W.1 has been examined and Exs.P1 to P5 have been marked and on the side of the tenant, R.W.1 has been examined and Exs.R1 and R2 have been marked. 5. On a consideration of the oral and documentary evidence adduced by the respective parties and on an analysis of the same, the Rent Controller was pleased to allow the rent control original petition in entirety and thereby ordered eviction of the tenant from the property. The Rent Control Appellate Authority also confirmed the order of the Rent Controller as such. Aggrieved over the same, the tenant has preferred the civil revision petition. 6. The landlady has preferred the rent control original petition seeking for eviction of the tenant from the property on the grounds of wilful default, owner's occupation as well as demolition and re-construction. It is the specific case of the landlady that she has purchased the property from the legal heirs of the erstwhile land owner Ganesan Chettiar under Ex.P2 – Sale Deed, dated 08.11.2000. On a perusal of the same and also as found by the Courts below, it is noted that the landlady has purchased the property, wherein the houses bearing both Door Nos.21 and 22 are located. It is further found that on the date of purchase of the property by the landlady under Ex.P2 ? Sale Deed, the house bearing Door No.21 was not in existence as at that point of time, the house bearing the said door number had become destroyed and therefore, it is found that on the date of Ex.P2 - Sale Deed, the house bearing Door No.21 was not in existence. 7. It is the further case of the landlady that the revision petitioner had been the tenant in respect of the property under the erstwhile land owner Ganesan Chettiar. The same is not in dispute. It has been admitted by the tenant that her father was a tenant in respect of the house bearing Door No.21 under the erstwhile land owner and after his demise, she continued to be the tenant of the property. The same is not in dispute. It has been admitted by the tenant that her father was a tenant in respect of the house bearing Door No.21 under the erstwhile land owner and after his demise, she continued to be the tenant of the property. It is stated by the landlady that even during the lifetime of the erstwhile landowner, the house bearing Door No.21 got destroyed and therefore, according to her, the tenant had shifted her residence to the house bearing Door No.22, however continuing to pay the rent as if she is residing in the house bearing Door No.21. However, the said fact has been refuted by the tenant. Further, it is seen from Ex.P3 series - Tax Receipts and also Ex.R1 series - Rental Receipts, that the tenant is in occupation of the property purchased by the landlady under Ex.P2? Sale Deed. Particularly, when the landlady had purchased the property wherein the houses bearing both Door Nos.21 and 22 were located, the case of the tenant that she is not in occupation of the house bearing Door No.22 and she is in occupation of only the house bearing Door No.21 and inasmuch as the landlady had not claimed to have purchased the house bearing Door No.21, according to her, the relationship of landlady tenant does not exist between the parties, does not merit acceptance. However, when it is found that as per Ex.P2 and particularly, the property description contained therein, the landlady had purchased the entire property, wherein admittedly the houses bearing both Door Nos.21 and 22 were located and at the time of purchase, the house bearing Door No.21 was not in existence, the claim of the tenant that the landlady had not purchased the house bearing Door No.21 as such cannot be countenanced in any manner. It has not been established by the tenant that the house bearing Door No.21 was not located in the property purchased by the landlady under Ex.P2 ? Sale Deed. Further, it has also not been established by the tenant that the house bearing Door No.21 is in existence as on date. It has not been established by the tenant that the house bearing Door No.21 was not located in the property purchased by the landlady under Ex.P2 ? Sale Deed. Further, it has also not been established by the tenant that the house bearing Door No.21 is in existence as on date. On the other hand, as seen from the materials placed before the Courts below, as on date only the house bearing Door No.22 is in existence in the property and accordingly, the tenant having been admitted to be a tenant in the property, it is rightly held by the Courts below that the revision petitioner is a tenant in respect of the house bearing Door No.21, however, residing in the house bearing Door No.22 and paying the rent as if she is residing in the house bearing Door No.21, which had already become destroyed and not in existence. Therefore, the contention put forth by the tenant that there exists no landlady? tenant relationship between the landlady and her as such cannot be accepted in any manner. 8. The landlady before institution of the case, it is found that has issued a pre-suit notice to the tenant informing her that she had purchased the property under Ex.P2 and calling upon her to pay the rent to her. The receipt of the said notice by the tenant is not disputed. If according to the tenant, the landlady had not purchased the property, wherein she had been inducted as a tenant and the claim of the landlady that she had purchased the property under Ex.P2 ? Sale Deed is not true, as rightly put forth by the learned counsel for the landlady on the receipt of said pre-suit notice, the tenant should have taken appropriate steps to send a response to the same either calling upon the landlady to give full particulars regarding her purchase of the property to establish that she has also purchased the entire property inclusive of the house bearing Door No.21 as such to enable her to tender the rent to the landlady or should have taken steps to deposit the rent in the Court as per law. However, without resorting to any such course, it is found that the tenant had chosen to institute the suit in O.S.No.91 of 2003 against the landlady and others seeking the relief of permanent injunction to restrain them from evicting her from the property unlawfully. If according to the tenant, the landlady had not purchased the property under Ex.P2 ? Sale Deed, there is no need on her part to institute the above mentioned suit against the landlady. Therefore, albeit the tenant knew about the purchase of the property by the landlady inclusive of the houses bearing both Door Nos.21 and 22, deliberately disputing the same and also in order to avoid the payment of rent to her, it is found that the tenant as such has put forth a false case as if the landlady had not purchased the house bearing Door No.21 in the property and hence, there exists no landlady - tenant relationship between the parties. 9. That apart, it is also admitted that the above suit laid by the tenant has been dismissed. Further, as rightly put forth by the learned counsel for the landlady, if really the tenant had entertained a bona fide doubt as to the entitlement of the landlady to have purchased the property under Ex.P2? Sale Deed, the normal course that should have been resorted to by her is that she should have moved the Rent Controller seeking permission to deposit the rent till the issue is resolved. However, the tenant has not taken such a legal redressal and on the other hand, had instituted the suit seeking for the relief of permanent injunction. Therefore, the above conduct of the tenant also would go to show that the case put forth by her denying the title of the landlady is not a bona fide one and it can be termed only as a mala fide one with an intention to avoid the payment of rent for one reason or the other. It is the specific case of the landlady that after her purchase of property, in particular, the tenant had not paid the rent in respect of the property from November, 2000 onwards. As seen from the rental receipts marked as Ex.R1 series, it is found that prior to the purchase of the property by the landlady, the tenant had been paying the rent to the erstwhile land owner. As seen from the rental receipts marked as Ex.R1 series, it is found that prior to the purchase of the property by the landlady, the tenant had been paying the rent to the erstwhile land owner. However, as rightly put forth by the landlady, after her purchase of the property, the tenant had not paid the rent, whether it be Rs.150/- or Rs.350/- per month as the case may be and despite notice issued by the landlady marked as Ex.P4, the tenant had not taken any step to pay or deposit the rent and also without responding to the said notice had instituted a false suit against the landlady and others in O.S.No.91 of 2003. As adverted to above, the said suit had also ended in dismissal. Nothing has been elicited during the course of the cross-examination of P.W.1 by the tenant in support of her case that she had paid the rent from November, 2000. From the evidence of the tenant, it is found that she had not paid the rent November, 2000 onwards. Thus, the evidence of both the tenant as well as the landlady cumulatively would go to show that the tenant has also admitted that the rent has not been paid from November, 2000 onwards. Therefore, it is found that the tenant had wilfully and with a mala fide intention disputed the title of the landlady in respect of the property and also committed wilful default in the payment of rent from November, 2000 onwards. 10. The Courts below have correctly held that the tenant had committed default in the payment of rent from November, 2000 onwards and the failure on the part of the tenant to pay the rent is nothing but wilful and therefore, rightly held that the tenant is liable to be evicted from the property on the ground of wilful default. 11. The landlady has also sought for eviction of the tenant on the grounds of owner's occupation and demolition and reconstruction. As seen from the evidence adduced by the respective parties, the superstructure in which, the tenant is now in occupation is only a thatched house and not a permanent one and therefore, it is seen that the property as such is an old one and requires immediate demolition and reconstruction. As seen from the evidence adduced by the respective parties, the superstructure in which, the tenant is now in occupation is only a thatched house and not a permanent one and therefore, it is seen that the property as such is an old one and requires immediate demolition and reconstruction. That apart, it is the specific case of the landlady that if the superstructure is demolished and a new construction is put up therein, the landlady would be in position to augment her income and therefore, it is stated that the landlady requires the building both for demolition and reconstruction and owner's occupation and therefore, sought for eviction of the tenant on the said grounds. It is also the specific case of the landlady that she has sufficient means to demolish the existing superstructure and construct a new building in the property. As regards the solvency of the landlady, the same is not in issue. Therefore, it is found that the landlady is possessed of sufficient funds to carry out demolition and construct a new building in the property. As already found, the existing superstructure in the property is not a pucca construction but only a thatched one and therefore, it is in need of immediate demolition and as rightly contended by the learned counsel for the landlady, if the same is demolished and a new building is constructed in the property, the same would be helpful to the landlady both for her own occupation as well as for augmenting her income. The Courts below have rightly held that the landlady has clearly established the case that the tenant should be evicted from the property on the grounds of both demolition and reconstruction as well as owner's occupation on a proper analysis of the materials produced. The above findings of the Courts below do not call for any interference from this Court in this civil revision petition. I, therefore, hold that the Courts below have rightly held that the tenant has to be evicted from the property also on the grounds of demolition and reconstruction and owner's occupation. 12. In the light of the above discussions, it is found that the Courts below have passed the order of eviction against the tenant rightly on the grounds set forth by the landlady and hence, the findings of the Courts below are not liable to be disturbed. 13. 12. In the light of the above discussions, it is found that the Courts below have passed the order of eviction against the tenant rightly on the grounds set forth by the landlady and hence, the findings of the Courts below are not liable to be disturbed. 13. In the result, the civil revision petition is dismissed with costs and the fair and decreetal orders, dated 27.06.2006, passed in R.C.A.No.17 of 2005, on the file of the Rent Control Appellate Authority/Sub Judge, Thoothukudi, confirming the fair and decreetal orders, dated 20.04.2005, passed in R.C.O.P.No.46 of 2004, on the file of the learned Rent Controller/Principal District Munsif, Thoothukudi, are confirmed. Consequently, connected miscellaneous petitions are closed.