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2018 DIGILAW 3356 (MAD)

Kamakshi v. Karpagam

2018-09-28

KRISHNAN RAMASAMY

body2018
JUDGMENT KRISHNAN RAMASAMY, J. 1. The Civil Revision Petition has been filed petitioner/tenant against the order dated 11.07.2000 passed in R.C.A.No.20/2000 by the learned Appellate Authority (Principal Subordinate Judge), Tiruchirappalli, confirming the order dated 10.02.1995 passed in RCOP.No.19 of 1993 by the learned Rent Controller (DMC), Pudukkottai. 2. The Second Appeal in S.A.No.466 of 2003 is filed by the appellant/tenant against the Judgment dated 03.10.2002 passed in A.S.No.19/2002 by the learned Additional District Judge cum Chief Judicial Magistrate, Pudukottai, confirming the Judgment dated 26.12.1996 passed in O.S.No.666 of 1993 by the learned Principal District Munsif, Pudukkottai. 3. The Second Appeal in S.A.No.1113 of 2003 is filed against the Judgment dated 26.09.2001 passed in A.S.No.150 of 2000 by the learned Principal District Judge, Pudukkottai confirming the Judgment dated 11.07.2000 passed in O.S.No.139 of 2000 by the learned Subordinate Judge, Tiruchirappalli. 4. Since the parties and the properties are one and the same and the subject matter of the suits and Civil Revision Petition is also same, a common order is to be passed in all the petitions. 5. The unsuccessful tenant before both the authorities below is the revision petitioner before this court and the respondent in the Civil Revision Petition is the owner of the property. The petitioner/tenant entered into a tenancy agreement with one Mr. Ramamurthi and Mrs. Nagarathinam during the year 1987. In their individual capacity, they have executed the said tenancy agreement to the petitioner/tenant. Subsequently, the said property was sold during the year 1993 to the respondent/landlady and thereafter, the respondent/landlady issued a notice to the petitioner/tenant seeking her to vacate from the subject property for the purpose of demolition and reconstruction of building and for owners occupation, but she did not reply. Thereafter, the respondent filed RCOP.No.19 of 1993 before the Rent Controller, Pudukkottai for eviction, whereas the petitioner/tenant strongly contended that the respondent is not the owner of the property and therefore, she is not entitled to file any RCOP against her for eviction. After considering the evidence and documents, the learned Rent Controller ordered for eviction. Aggrieved over the said order, the petitioner/tenant filed R.C.A.No.3 of 1995 before the Sub Court, Pudukkottai, which was transferred to the Principal Sub Court, Rent Control Appellate Authority, Tiruchirappalli. The said RCA was also dismissed. Challenging the dismissal order passed in RCA, the present Civil Revision Petition is filed. 6. Aggrieved over the said order, the petitioner/tenant filed R.C.A.No.3 of 1995 before the Sub Court, Pudukkottai, which was transferred to the Principal Sub Court, Rent Control Appellate Authority, Tiruchirappalli. The said RCA was also dismissed. Challenging the dismissal order passed in RCA, the present Civil Revision Petition is filed. 6. In the meantime, the petitioner/tenant filed O.S.No.666 of 1993 before the Principal District Munsif, Pudukkottai, seeking for injunction restraining the defendants therein from unlawfully dispossessing her from the suit property or demolishing the property except under due process of law. The said suit was dismissed, against which, the petitioner/tenant filed A.S.No.19 of 2002 before the Additional District Judge/Chief Judicial Magistrate, Pudukottai. The appeal was also dismissed with costs. Challenging the said concurrent Judgments, the petitioner/tenant filed Second Appeal in S.A.No.466 of 2003. 7. One Vasudevan and Others filed O.S.No.276 of 1994 before the Sub Court, Pudukkottai against Ramamurthy and Others including the respondent/landlady for framing a scheme with respect to the suit trust and for restoring the property to the Trust. The said suit was transferred to the Sub Court, Tiruchirappalli and re-numbered as O.S.No.139 of 2000. The said suit was dismissed. Against that order, the petitioner/tenant filed A.S.No.150 of 2000 before the Principal District Court, Pudukkottai. The said appeal was also dismissed with costs. Aggrieved against the said concurrent Judgments, the petitioner/tenant filed Second Appeal in S.A.No.1113 of 2003. 8. Heard the learned counsel appearing on either side. I have also perused the documents and the judgments relied on by them in support of their submissions. 9. The learned counsel appearing for the Civil Revision Petitioner/tenant mainly contended that the subject property is a public trust property. Therefore, when the sale of the public property was made, vendors should have obtained Court permission before the sale of the said property. Hence, the same was null and void. Therefore, she is not bound to make any payment as rent to the respondent/landlady, who is the purchaser of the property. To substantiate her claim whether the property in question is a public trust property or not, the petitioner/tenant preferred an application in I.A.No.117 of 2000 before the Rent Control Appellate Authority in R.C.A.No.20 of 2000 to produce additional documents. The said application was dismissed. However, neither an appeal nor CRP was filed against the said order. To substantiate her claim whether the property in question is a public trust property or not, the petitioner/tenant preferred an application in I.A.No.117 of 2000 before the Rent Control Appellate Authority in R.C.A.No.20 of 2000 to produce additional documents. The said application was dismissed. However, neither an appeal nor CRP was filed against the said order. But still the petitioner/tenant contended that under Order 41 Rule 27 (1) (a) C.P.C., she can produce additional evidence, even though the lower Court refused to accept additional evidence. He referred Ex.A1-Trust Deed, wherein the name of the family members were mentioned and how to spend the income from the properties and how the properties should be dealt with were also mentioned. However, in the said deed, there was no schedule of property mentioned. Further, the petitioner/tenant contended that she filed C.M.P.(MD)No.16699 of 2000 for the purpose of production of additional documents, particularly, she wanted to produce an order, where one of the tenants preferred a petition and the Court found that the property, which is in another survey number found to be trust property. However, the learned counsel for the revision petitioner fairly submitted that the present subject properties and survey numbers are different. Therefore, since the respondent is not the owner of the property, she cannot evict the petitioner/tenant and she is not a rightful person to file the present RCOP for eviction. Consequently, he prayed for not to interfere with his possession, which is the subject matter under S.A.No.446 of 2003 and the same may be allowed. 10. Per contra, the learned Senior Counsel appearing for the respondent/landlady submits that the petitioner/tenant herein entered into a lease agreement with her vendors in their individual capacity during the year 1987 and that the property is not pertaining to the public trust property as claimed by the tenant. Thereafter, the said property was sold due to the reason that the income received from the said tenant was not sufficient to carry out the object mentioned in Ex.A.1-trust deed, dated 12.12.1895, it is a family trust. The petitioner sold the property in the capacity as Managing Trustee of the Family Trust. The respondent purchased the said property during the year 1993 and the said sale was not challenged by any one. The petitioner sold the property in the capacity as Managing Trustee of the Family Trust. The respondent purchased the said property during the year 1993 and the said sale was not challenged by any one. As long as the sale is not challenged, the respondent/landlady is the owner of the property and she is entitled to collect the rent. Therefore, the petitioner is the tenant under the respondent. The present RCOP was filed for the eviction on the ground of owner's occupation and for demolition and reconstruction of the property, since the present building was more than 100 years old. Therefore, there is no locus standi to the petitioner to question the title of the property and the title of the property cannot be decided in the RCOP proceedings and that too between the owner and the tenant. Further, learned Senior Counsel pointed out that as argued by the learned counsel for the petitioner/tenant that the petitioner herein is depositing the rent in the bank. Further, the learned Senior Counsel submits that if at all if there is any ownership dispute and on that basis the petitioner had any apprehension about the ownership of the property, she could have rightly filed a petition even in the RCOP itself to implead the vendors of the respondent. The petitioner/tenant has not done the same deliberately. The real intention of the petitioner/tenant is to drag on the matter and she had successfully dragged the matter for more than 18 years before this Court alone. Till date, the petitioner/tenant failed to pay any rent to the respondent/landlady, but to her (tenant's) bank, which the respondent yet to receive the same. 11. The learned Senior Counsel further contended that as per Order 41 Rule 27(1 a) C.P.C., no doubt, additional documents can be filed at the appeal stage, even after the refusal to mark the said document in the lower Court, but it is not mandatory and only if the Appellate Court finds that it is just and necessary to mark that additional documents to substantiate their case. In the present case, the respondent's ownership of the property till date is not challenged. Further, the Survey number of the property in the additional document sought to be marked and the survey number of subject property are entirely different. In the present case, the respondent's ownership of the property till date is not challenged. Further, the Survey number of the property in the additional document sought to be marked and the survey number of subject property are entirely different. As long as the ownership is not challenged and due to the reason of different survey number, there is no question of producing additional documents to substantiate the title of the property. In a Rent Control Proceedings, there is no locus standi for the petitioner to raise the ownership of the property. Therefore, CMP No.16699 of 2000 is also liable to be dismissed. 12. In support of her contentions, the learned Senior Counsel appearing for the respondent relied upon the following judgments:- (i).In (S.THANGAPPAN v. P.PADMAVATHY, (1999) 7 SCC 474 ), wherein the Hon'ble Apex Court has observed that 'under Section 116 of the Indian Evidence Act, the tenant is estopped from denying the title of the landlord at the beginning of the tenancy. Hence, the tenant, after entering into lease agreement with Ramamurthy and after having been paying rent to him, turns around and says that only the trust is the landlord. Therefore, tenant denial of title is not bona fide'. (ii).In (KAILASH CHANDER v. OM PRAKASH, (2003) 12 SCC 728 ), wherein the Hon'ble Supreme Court, has observed that 'concurrent findings in Rent Control proceedings may be interfered with only if the High Court finds them to be perverse or based on no evidence. 13. Under these circumstances, the core issues that arise for consideration in these matters are as follows:- 1. Whether the ownership can be decided in a Rent Control Proceedings? 2. Whether the respondent is the owner of the property in question? 3. Whether this Court can permit the additional evidence to be marked in the appellate stage, in order to establish the ownership of the property in a Rent Control Proceedings? 4. Whether there is a jural relationship of tenant and owner between the petitioner and the respondent? 13. Point Nos.1 & 2: 13(i). 3. Whether this Court can permit the additional evidence to be marked in the appellate stage, in order to establish the ownership of the property in a Rent Control Proceedings? 4. Whether there is a jural relationship of tenant and owner between the petitioner and the respondent? 13. Point Nos.1 & 2: 13(i). Even though the petitioner/tenant has denied the title of the landlord by contending that the land in question belonged to a public trust, in a Rent Control Proceedings, the tenant cannot challenge the ownership of the property, as long as he is admitting her tenancy and paying the rent in the bank, but not to the respondent/owner, as stated by the learned counsel for the petitioner. In the cross examination, the petitioner/tenant has admitted that she entered into the tenancy agreement with one Mr. Ramamurthi and Mrs. Nagarathinam, who executed the tenancy agreement in their individual capacity and not in the name of the trust. But, in the sale agreement, it is mentioned that the property was sold by the vendor of the respondent in the capacity as Managing Trustee of the property and they have sold the property for the purpose of fulfilling the wishes of the founder of the Trust and to make the obligations as described in the Trust deed, dated 12.12.1895. Therefore, without no other option, the vendors sold the property to the respondent herein and the said sale is not in challenge till date. Thus, the respondent is the sole owner of the land in question and therefore, the petitioner/tenant cannot contend that the land is a Trust property and thereby question the title of the respondent/landlady. 13(ii).It is settled law that the Rent Controller has no jurisdiction to adjudicate on title and the Rent Controller has to only decide the bona fide of denial of title by a tenant in a Rent Control proceedings under Tamil Nadu Rent Control Act, 1960. The Rent Controller in the present case has ordered eviction holding that only persons, who have interest in the property alone could question the nature of the property and not the tenant. Further there was nothing to show that the trust is a public charitable trust but the family alone conducted prayers and annadhanam in remembrance of their ancestors during their death ceremonies and therefore, the general public had no right in the property. Further there was nothing to show that the trust is a public charitable trust but the family alone conducted prayers and annadhanam in remembrance of their ancestors during their death ceremonies and therefore, the general public had no right in the property. It was also found by the Rent Controller that the landlady had proved that she bona fide required the premises for her jewellery business. Therefore on this ground, the revision petition cannot be adjudicated in favour of the tenant. That apart, the question of bona fide or otherwise of the denial of title by the revision petitioner was gone into by both the authorities and rendered a finding that the denial of title of the landlady by the tenant is not bona fide. The Principles laid down by the Hon'ble Apex Court in the case S.THANGAPPAN v. P.PADMAVATHY, is squarely applicable to the present case on hand. Therefore, once it is established that the denial of title is not bona fide, then the tenant has no reason to challenge the rent control proceedings. Accordingly, point Nos.1 and 7 are answered above. 14. Point No.3: 14(i).The petitioner filed an application in C.M.P.No.16699 of 2000 for the purpose of marking additional documents in the Civil Revision Petition, contending that the additional document, which is a decree passed in O.S.No.9721 of 1994 on the file District Munsif Court, Pudukkottai is vital for deciding the dispute that the property in question is a public trust. As already decided in Point No.1, though in the sale deed executed by the vendors of the respondent/landlady, it is mentioned that the property is a trust property, the vendors sold the property to fulfil the wishes of the founder of the Trust. The said sale deed was never put into challenge. Thus, as per the sale deed, the respondent/landlady is the sole owner of the property and she is the title holder of the property in question. Further, as already held, in a Rent Control proceedings, neither the Rent Controller nor the Rent Control Authority has any jurisdiction to decide the title of a property. In such a situation, the additional document now the petitioner/tenant wants to introduce in this Civil Revision Petition, in the opinion of this Court, will not in any way advance the case of the petitioner/tenant. In such a situation, the additional document now the petitioner/tenant wants to introduce in this Civil Revision Petition, in the opinion of this Court, will not in any way advance the case of the petitioner/tenant. Further, the Survey number of the property in the additional document sought to be marked and the survey number of subject property are entirely different. As long as the ownership is not challenged and due to the reason of different survey number, there is no question of producing additional documents to substantiate the title of the property. 14(ii).In view of the above, as this Court decided the question No.1, in a Rent Control proceedings, the tenant cannot challenge the ownership of the property, as long as he is admitting and paying the rent in the bank. Further, the rental agreement for the subject matter was executed by the vendors of the property in their individual capacity. Therefore, there is no need for marking additional documents. Even if the additional documents are marked in a Rent Control Proceedings, this will not look into the ownership of the property, as the tenant already entered into a rental agreement with the vendors of the respondents, in their personal capacity. 14.(iii).In support of the arguments of the learned Senior Counsel appearing for the respondent, she referred a Privy Council Judgment in PARSOTIM THAKUR v. LAL MOHAR THAKUR,1931 LW 76, wherein it was held that; "... the provisions of Section 107, Civil Procedure Code, as elucidated by Order 41, Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal. ..... They will only add that the power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case. ...." 14(iv).However, in the present case, the Court finds that there is no direct impact on the additional evidence sought to be produced before this Court, for the reasons stated above. Therefore, the petition seeks to adduce the additional evidence is also liable to be dismissed and accordingly, dismissed. 15. ...." 14(iv).However, in the present case, the Court finds that there is no direct impact on the additional evidence sought to be produced before this Court, for the reasons stated above. Therefore, the petition seeks to adduce the additional evidence is also liable to be dismissed and accordingly, dismissed. 15. Point No.4: 15(i).The respondent/landlady on the basis of the sale deed executed in respect of the subject property has become the landlady of the petitioner/tenant. The tenant entered into a tenancy agreement in respect of the subject property with the vendors of the respondent/landlady. On purchase of the property, the respondent/landlady has become the owner of the property. The petitioner has become the tenant under the respondent/landlady from the date of purchase of the property. Further, the petitioner has admitted his tenancy in respect of the property in question. On the purchase of the property, all rights attached to the property transfers to the purchaser of the property and purchaser become landlord/landlady. Under such circumstances, this Court finds that there is a jural relationship of tenant and landlady exists between the petitioner and the respondent. Accordingly, point No.4 is answered that there is a jural relationship of tenant and owner existing between petitioner and respondent. 16. In the result, C.R.P.(MD)No.2647 of 2000: 16.(i).This Court does not find any merits to interfere with the orders of the Courts below. Consequently, the Civil Revision Petition is dismissed. No costs. C.M.P.No.13973 of 2000 is also dismissed, and V.C.M.P.No.944 of 2003 is closed. S.A.No.466 of 2003: 16(ii).Consequent to the dismissal of the C.R.P.(MD)No.2647 of 2000, since this Second Appeal was filed for the purpose of not to interfere with the peaceful possession and enjoyment of the property and the present Civil Revision Petition has been decided against the petitioner/tenant recognising the respondent as owner, question of granting such relief cannot arise. Therefore, this Court confirms the Judgment, dated 03.10.2002 passed in A.S.No.19 of 2002 by the learned Additional District Judge cum Chief Judicial Magistrate, Pudukkottai and the Judgment, dated 26.12.1996 passed in O.S.No.666 of 1993 by the learned Principal District Munsif, Pudukkottai. Accordingly, the S.A.No.466 of 2003 is dismissed. S.A.No.1113 of 2003: 16(iii).Though none appeared for the appellant, this Court heard the learned Senior Counsel appearing for the respondent. 16(iv).The suit property does not belong to a public charitable trust, but to the family of the original owners and not to any public trust. Accordingly, the S.A.No.466 of 2003 is dismissed. S.A.No.1113 of 2003: 16(iii).Though none appeared for the appellant, this Court heard the learned Senior Counsel appearing for the respondent. 16(iv).The suit property does not belong to a public charitable trust, but to the family of the original owners and not to any public trust. The agreement dated 12.12.1895 was among six sons of one Dharmalingam Chettiar. It was entered into for the remembrance of a forefather, Late Sriman Narayanasami. A Maheswara puja was to be conducted every year on the last Sunday of Karthigai month. The rental income from the two shops was to be used for the puja and the feeding of persons in connection with the puja. No public purpose is mentioned in the document. The funds are entirely from the family property and there is no scope for collecting contributions from outsiders for the performance of the puja. Outsiders are not permitted to participate in the Maheswara puja. The deed specified that any repair or expense would be borne only by the family members. The priest who has been performing the puja for the past decades had spoken as a witness that only the members of the family attended the puja. This is a very common practice in Tamil Nadu. 16(v).The learned Senior Counsel appearing for the respondent referred the decision of the Hon'ble Apex Court in SRI RADHAKANTA DEB v. COMMISSIONER OF HIND RELIGIOUS ENDOWMENTS, (1981) 2 SCC 226 , wherein, the Hon'ble Supreme Court, after discussing several Judgments, held that the tests, to be applied for deciding as to whether a trust is public or private, are; (i). In whose hands the management of the trust vests, in the hands of the public or in the hands of the family; (ii).The nature of the right of the worshippers, (in the case on hand the right of the beneficiaries); (iii). The intention of the original founders, to dedicate it for the benefit of the family members; (iv). No stipulation is made for receipt of contributions from the general public. By application of these tests, it is seen that the suit property belongs to the family but not to the public trust as alleged by the appellant. The intention of the original founders, to dedicate it for the benefit of the family members; (iv). No stipulation is made for receipt of contributions from the general public. By application of these tests, it is seen that the suit property belongs to the family but not to the public trust as alleged by the appellant. 16(vi).Further, the learned Senior Counsel appearing for the respondent cites the decision of this Court in M/S.DEELIPKUMAR & Co v. MULLA GULAMALLIANSAFFIARAI DHANALIWALA TRUST BY ITS SECRETARY, SABBIRKURBAN HUSSAI DHANALIWALA, 1998 1 MLJ 773 , wherein this Court has held that even if the public are beneficiaries, the benefit is not conferred on them as of right as the management is with the family members and also as no amount is collected from anyone else for carrying on the objects of the trust. 16(vii).The agreement is dated 12.12.1895. The shop was in existence then itself. On the date of the suits the building was at least a century old. The sale deed in favour of the respondent clearly mentions that the rental income being very low, it was sufficient to perform the puja and allied activities. The sale was absolutely necessary and no family member has questioned the sale. Hence, the irresistible conclusion can only be that the appellant's vexatious contention that the property of the public trust has been sold without court permission. Once it is decided that it is a private trust, S.A.No.1113 of 2003 filed by some strangers seeking framing of a scheme for the trust will automatically fail. 16(viii).Even assuming without admitting that it is a public trust, the power of the trustee is not circumscribed by the Act. The property is more than 100 years old and must be dilapidated. The tenant was paying a meager rent which would not be sufficient to hold the puja. The said Ramamurthy in his evidence has clearly spoken about the necessity to sell the property. Hence, the sale of the property by the trustee is not vitiated as held in CHAIRMAN MADAPPA v. M.N.MAHANTHADEVARU, (1966) 2 SCR 151 . 16(ix).Therefore, this Court has no hesitation to hold that Karpagam is the owner of the subject property and hence, the question of granting the relief in O.S.No.139 of 2004 does not arise. Hence, the sale of the property by the trustee is not vitiated as held in CHAIRMAN MADAPPA v. M.N.MAHANTHADEVARU, (1966) 2 SCR 151 . 16(ix).Therefore, this Court has no hesitation to hold that Karpagam is the owner of the subject property and hence, the question of granting the relief in O.S.No.139 of 2004 does not arise. Therefore, this Court confirms the Judgment and decree, dated 26.09.2001 passed in A.S.No.150 of 2000 by the learned Principal District Judge, Pudukkottai and the Judgment, dated 11.07.2000 passed in O.S.No.139 of 2000 by the learned Subordinate Judge, Tiruchirappalli and consequently, the relief sought for in S.A.No.1113 of 2003 cannot be granted and hence, the same is dismissed. No costs.