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2018 DIGILAW 2339 (MAD)

Mallika v. Muthusamy Pillai (Died)

2018-08-02

R.THARANI

body2018
ORDER : Heard Mr. M. Subash Babu, learned counsel appearing for the petitioner, Mr. Ajmal Khan, learned senior counsel for Mr.M.Thirunavukarasu, appearing for the respondents 3 to 6 and Mr. R. Vijayakumar, learned counsel for the second respondent. 2. This civil revision petition was filed challenging the order passed in R.C.A.No.7 of 2007 dated 09.08.2010 on the file of the Rent Control Appellate Authority/Sub Court, Srivilliputhur. 3. The first respondent is the tenant of the suit property under the second respondent. On 27.07.1998, the petitioner purchased the property from the second respondent. 4. On the side of the petitioner, it is stated that after the purchase of the scheduled property, the second respondent informed about the sale to the first respondent and requested the first respondent to pay the rent to the petitioner and the petitioner also informed the petitioner that the first respondent will pay the rent to her. The rent was already fixed as Rs.375/- (Rupees Three Hundred and Seventy Five only) per month to be paid on or before 10th of every English calendar month. 5. Since the first respondent failed to pay the rent and the petitioner needs the property for her own use, the petitioner filed R.C.O.P.No.10 of 1999 for eviction of the first respondent and the Rent Controller allowed the petition and three months time was granted for eviction. 6. Aggrieved by that order, the first respondent herein filed an appeal in R.C.A.No.7 of 2007 before the learned Rent Control Appellate Tribunal and Subordinate Judge, Srivilliputhur. The learned Sub Judge allowed the appeal and set aside the order passed in R.C.O.P.No.10 of 1999 with cost. 7. On the side of the petitioner, it is stated that the first respondent/tenant has admitted that monthly rent is Rs.375/- (Rupees Three Hundred and Seventy Five only) and the same has been paid on 10th of every English calendar month. The Rent Control Appellate Tribunal failed to note that the petitioner purchased the scheduled property for consideration and the sale deed marked as Ex.P1 and the same was intimated to the first respondent, which is marked as Ex.P2. The Rent Controller failed to consider that the second respondent herein wrote a letter stating that property was sold to the petitioner and the same was marked as Ex.P10 and Ex.R13. The acknowledgement card, which was signed by the first respondent is marked as Ex.R14. 8. The Rent Controller failed to consider that the second respondent herein wrote a letter stating that property was sold to the petitioner and the same was marked as Ex.P10 and Ex.R13. The acknowledgement card, which was signed by the first respondent is marked as Ex.R14. 8. On the side of the first respondent, it is stated that there was an oral agreement between the second respondent and the first respondent. It is stated that there is no tenancy agreement between the petitioner and the first respondent. The first respondent entered into a tenancy agreement with the second respondent's father and after his death, the first respondent was paying the rent to the second respondent and the second respondent and her father promised the first respondent that they would not sell the property to anybody else except the first respondent. 9. It is further stated that there was an oral agreement between the first respondent and the second respondent regarding the sale of the scheduled property. On the basis of the oral agreement, the first petitioner undertook the repair of the property from out of his own fund. R.W.2 who is the second respondent in her evidence had admitted. It is stated that on the basis of the oral agreement, the second respondent has not raised the rent. R.W.2 in the cross examination has admitted that 10. On the side of the first respondent, it is stated that an oral agreement is also a valid agreement. It is submitted that the first respondent filed a suit against the second respondent in O.S.No.63 of 1999 for specific performance and the same is dismissed. 11. On the side of the respondents 3 to 6, it is stated that it is the case of the first respondent that there was oral agreement and on the basis of the oral agreement, a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) was given as an advance. It is further stated that the first respondent has stated that till the execution of the sale deed, the first respondent undertook to pay the rent to the second respondent and that on the basis of the oral sale agreement, a xerox copy of the partition deed was given to the first respondent. 12. It is further stated that the first respondent has stated that till the execution of the sale deed, the first respondent undertook to pay the rent to the second respondent and that on the basis of the oral sale agreement, a xerox copy of the partition deed was given to the first respondent. 12. On the side of the petitioner, it is stated that oral agreement is false and there is no such oral agreement between the first and second respondents. On the side of the petitioner, It is further stated that the first respondent has failed to prove that the advance amount was paid and he has not filed any documents to prove payment. 13. It is further stated that no original documents were handed over to the first respondent and that even the alleged xerox copy of the partition deed was also not marked by the first respondent before the lower Court. It is further stated that in O.S.N.63 of 1999, the first respondent has filed an Interlocutory Application in I.A.No.172 of 2007 before the Sub Judge, Srivilliputhur. On dismissal of the I.A. petition, C.M.A.No.20 of 2008 was filed before the District Judge, Srivilliputhur and the same is still pending. It is argued that till date no appeal is filed against the dismissal of O.S.No.63 of 1999. 14. On the side of the first respondent, it is stated that there is no tenancy agreement between the petitioner and the first respondent and the first respondent is questioning the title of the petitioner and there is doubt whether the title is bonafide, as the first respondent is having an oral agreement. It is further stated that the petitioner has not given any notice to the first respondent claiming rent. More over the petitioner has admitted in her evidence that there is no tendency agreement between herself and the first respondent. It is further argued that only after the filing of the specific performance suit in O.S.No.63 of 1999, after seven months, the petitioner has filed R.C.O.P.No.10 of 1999. It is further stated that the first respondent has paid the rent up to January 1999 to the second respondent. The tenant denied the title of the landlord. The question of eviction does not arise. The landlord has to go to the Civil Court regarding the ownership of the property. It is further stated that the first respondent has paid the rent up to January 1999 to the second respondent. The tenant denied the title of the landlord. The question of eviction does not arise. The landlord has to go to the Civil Court regarding the ownership of the property. 15.The learned counsel appearing for the respondents 3 to 6 relied on the Judgment passed by this Court in the case of Albert v. M.Y.Mohammed Syed Ibrahim reported in 2012 (2) MWN (Civil) 16, which reads as follows: “Rent Controller only get jurisdiction when tenancy is admitted by parties - Relationship of Tenant and Landlord denied by Defendant – Eviction ordered by Courts below without determining the relationship of Landlord and Tenant - Approach of Courts below, held, erroneous and thus, orders set aside ... As the Revision Petitioner questioned the title of the Respondent and the Respondent also did not file the Sale Deed in my opinion, the denial of title by the Revision Petitioner is bonafide and unless the Respondent proved the title to the suit property in the competent Civil Court he is not entitled to maintain action for eviction before the Rent Controller.? 16. The learned counsel appearing for the respondents 3 to 6 relied on the Judgment passed by this Court in the case of Meena Srinivasan v. George reported in 2014 (2) MWN (Civil) 530, which reads as follows: “When Tenant denies title of Landlord, Rent Controller has to decide whether denial is bonafide and shall also record findings on same ? In event of Rent Controller holding that denial or claim of tenant is bonafide, then only option for Landlord is to sue Tenant for eviction before Civil Court.” 17. On the side of the respondents 3 to 6, it is stated that the petitioner has filed a petition for eviction before the Rent Controller stating that there is wilful default on the part of the first respondent in the payment of rent. It is further stated that the title of the petitioner is not proved and the notice claiming rent is not sent by the petitioner and there is no tenancy agreement and it is further stated that the petition under Section 11(4) was filed by the petitioner before the trial Court and a revision in C.R.P.No.402 of 2006 and C.M.P.No.1 of 2006 was also filed. The order copy is marked as Ex.P8 wherein there is a direction to the tenent to deposit the rent amount in Court and accordingly, the first respondent is paying the rent by depositing the rent in O.S.No.63 of 1999 and there is no wilful default. Hence, the petitioner cannot claim eviction on the basis of wilful default of payment of rent. 18. On the side of the petitioner, it is stated that in C.R.P.No.402 of 2006, this Court has given direction to deposit the rental arrears before the Rent Controller, Srivilliputtur in R.C.O.P.No.10 of 1999 and the first respondent had failed to deposit the said amount. Mere denial of the title cannot vitiate the jurisdiction of the Rent Controller. The petitioner has filed a sale deed dated 27.11.1998 which is marked as Ex.P1 which shows that the petitioner has purchased the property for valuable consideration. It is further stated that the second respondent who is the owner of the property sold the property to petitioner and hence, the first respondent cannot question the title of the petitioner. More over the sale deed was not questioned by the first respondent and no suit for cancellation of sale deed is filed by the first respondent. 19. It is further stated that the second respondent has informed the first respondent about the sale and requested him to pay the rent to the petitioner and Ex.P10 was admitted by the first respondent and the same was marked as Ex.R13 and the acknowledgement card was also marked as Ex.R14 and the Rent Controller Appellate Authority fails to analysis the fact. 20. A perusal of records reveals that oral agreement and payment of advance amount is denied by the second respondent. The respondents 1, 3 to 6 filed specific performance suit and the same was dismissed. There is no appeal against the suit. Handing over a xerox copy of the title deed cannot convey any title to the first respondent. Admittedly balance of consideration is paid by the first respondent. No sale deed is executed in favour of the first respondent. Doing repair work cannot confer any title. The first respondent or the respondents 3 to 6 are not holding any title of ownership to the building. 21. Admittedly balance of consideration is paid by the first respondent. No sale deed is executed in favour of the first respondent. Doing repair work cannot confer any title. The first respondent or the respondents 3 to 6 are not holding any title of ownership to the building. 21. A perusal of the records reveals that the second respondent has executed a sale deed in favour of the petitioner and the sale deed is marked as Ex.P1 and that the sale deed was not questioned by the first respondent or by the respondents 3 to 6. The second respondent has addressed the first respondent regarding the sale of the property and this was admitted by the second respondent in her evidence before the Court. It is clear from Ex.P10, which is also marked as Ex.R13 that the second respondent has informed the factum of the sale to the first respondent and has asked him to pay the rent to the petitioner. The second respondent denied the oral agreement and there is no doubt on the ownership of the petitioner. The specific performance suit field by the first respondent was dismissed by the lower Court. Unless and until the first respondent succeed in specific performance suit he cannot question the ownership of the petitioner. Hence, there is no bonafide doubt regarding the title of the petitioner. 22. The petitioner claimed tenancy under the second respondent and as per the notice Ex.R13 he has to pay the rent to the petitioner. Hence, the question of not claiming the rent by the petitioner was not relevant and the absence of tenancy agreement between the petitioner and the first respondent does not hold good as the petitioner being the purchaser has stepped into the shoes of the vendor. On the side of the first respondent, it is stated that rent is being paid as per the order in C.R.P.No.402 of 2006 and is deposited in Court. But he has not deposited the rent before the Rent Controller Court as per the direction of this Court and he is depositing the amount, only in the original suit which is against the order of this Court. Before the direction of this Court's order, there was wilful default and after the Court order also, payment is not deposited before the proper forum. 23. The petitioner request eviction for using the building for her own use. Before the direction of this Court's order, there was wilful default and after the Court order also, payment is not deposited before the proper forum. 23. The petitioner request eviction for using the building for her own use. On the side of the respondent, it is stated that the petitioner is the owner of the building in which she is residing. The address given in the petition cannot be presumed that she is the owner of that house. No documents to prove that the petitioner is residing in her own building is filed by the first respondent. The contention of the petitioner that she require the building for her own use is acceptable. 24. The aforesaid citations are not applicable to the facts of this case. There is wilful default in payment of rent and the petitioner is in need of the building for her own use. For the above said reasons, it is decided that the order passed by the Rent Control Appellate Authority/Sub Court, Srivilliputtur is set aside and the order passed by the Rent Controller, Srivilliputtur is hereby confirmed. The first respondent is directed to vacate the premises within a period of three months from the date of receipt of copy of this order. 25. With the above direction, this Civil Revision Petition is disposed of. No Costs.