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2020 DIGILAW 208 (MAD)

Subbiah v. Parvathy Ammal

2020-01-31

N.SATHISH KUMAR

body2020
JUDGMENT : (Prayer: Second Appeal filed under Section 100 CPC against the Judgment and Decree made in A.S.No.19 of 1998 on the file of Sub Court, Ambasamudram on 07.09.2001 confirming the Judgment and Decree made in O.S.No.231 of 1991 on the file of the Principal District Munsif Court, Ambasamudram, dated 27.01.1998.) Aggrieved over the concurrent finding of the trial Court decreeing the suit for declaration and recovery of possession, this Second Appeal is filed. 2. The appellant is the defendant and the respondent is the plaintiff in the suit in O.S.No.231 of 1991 on the file of the Principal District Munsif Court, Ambasamudram. 3. The brief facts during the filing of the appeal are follows: The plaintiff is a sister of the defendant. The suit property originally owned by their father. His father has bequeathed the property by Will dated 12.04.1961. The first item of the property originally belonged to the defendant and landed property in Survey No.457 to an extent of 56 cents in Melambasamuthiram village was bequeathed to the plaintiff. Thereafter, the plaintiff and the defendant exchanged their properties. Accordingly, the plaintiff became the owner of the suit property by way of exchange of sale deed between plaintiff and the defendant. The defendant continued to occupy the suit property even after the exchange and agreed to pay monthly rent of Rs.30/-. However, there was no written contract between the parties. The defendant failed to pay rent from 1982 onwards. Therefore, legal notice was issued on 20.12.1982. The defendant issued a reply dated 11.01.1983 denying the exchange deed and contending that exchange deed is a sham and nominal document and the same has been executed only to avoid maintenance case filed by his wife. Further, he denied the landlord - tenant relationship. As the defendant denied the exchange deed and tenancy, the suit has been filed for declaration and recovery of possession. It is the contention of the defendant that exchange deed is sham and nominal document and it was executed in order to avoid maintenance claimed by defendant's wife. Even after the exchange of properties, the defendant is continued to occupy the property and there is no landlord – tenant relationship between them and hence, the suit property in dispute belonged to the defendant and prayed for dismissal of the suit. 4. The trial Court has framed four issues. Even after the exchange of properties, the defendant is continued to occupy the property and there is no landlord – tenant relationship between them and hence, the suit property in dispute belonged to the defendant and prayed for dismissal of the suit. 4. The trial Court has framed four issues. On the side of the plaintiff, PW.1 was examined and Exs.P1 to P106 marked. On the side of the defendant, DW.1 was examined and no document was filed. 5. The Trial Court, after analyzing the evidence, decreed the suit. The first appellate Court also dismissed the appeal, as against which the present second appeal is filed. While admitting this second appeal, following substantial questions of law framed: “1. Whether the lower appellate Court is right in its interpretation of the law laid down by the Hon'ble Apex Court, reported in AIR 1991 SC 1094 , and the law laid down by this Hon'ble Court, reported in 1998 (1) MLJ 62 , 1996(1) Law Weekly 689 in the facts and circumstances of the case on hand? (2) Whether the denial of title in the reply notice sent to the legal notice sent by the plaintiff/respondent, whose primary contention is that she is landlord, confers the cause of action to file a suit before the Civil Court instead of going before the Rent Controller? (3) Whether the Courts below failed to see the suit filed by the plaintiff for declaration, recovery of possession and mesne profits is maintainable before a civil Court in view of the candid admission of the respondent/plaintiff that the appellant/defendant is her tenant and the appropriate Forum would only be the Rent Control Court and not the Civil Court? (4) Whether the lower appellate Court erred in rejecting the plea pertaining to jurisdiction raised by the appellant on the ground that the same was not raised before the trial Court, ignoring the well settled principles that the question of jurisdiction could be raised at any stage of the proceedings?” 6. The learned counsel appearing for the appellant has mainly contended that the suit filed before the Civil Court is not maintainable for recovery of possession. The plaintiff herself admitted that the defendant is a tenant. Such being the position, only Rent Control petition under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 ought to have been filed. The learned counsel appearing for the appellant has mainly contended that the suit filed before the Civil Court is not maintainable for recovery of possession. The plaintiff herself admitted that the defendant is a tenant. Such being the position, only Rent Control petition under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 ought to have been filed. It is the contention that the Civil Court jurisdiction cannot be ignored otherwise than as stipulated in the proviso of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The further contention is that only the Rent Controller has to come to a conclusion that denial of title is bonafide and the suit will not be maintainable before the Civil Court to evict the tenant. In such view of the matter, the suit is not maintainable and the Courts below have no jurisdiction to entertain the suit to order eviction. Therefore, he submitted that the findings of the Courts below are liable to be set aside. It is his further contention that when the legal notice was issued in the year 1982, the defendant has denied the title and sets up independent title, whereas the suit has been filed in the year 1991, i.e., beyond the period of three years and hence, the suit is barred by limitation. In support of his submission, he has relied upon the Judgment of the Hon'ble Supreme Court reported in 1991(3) SCC 230 (East India Corporation Ltd., Vs. Shree Meenaksi Mills Ltd.,) and the another Judgment of this Court reported in 1996(1)LW 689 (P. Rukmani Vs. P. Narayani and six others). 7. Whereas, the contention of the learned counsel for the respondent is that though the plaintiff stated that the defendant is a tenant, tenancy has not been established. Admitted fact is that as per the Exchange Deed Ex.P2, the suit property came to the plaintiff. The defendant not only denied the relationship of landlord and tenant, but also, he himself set up the title to the suit property. Both the Courts below have clearly found that Ex.P2 – Exchange deed is validly executed. When the plaintiff denied the title of the defendant and the defendant himself sets up independent title to the suit property, only the Civil Court has jurisdiction. Both the Courts below have clearly found that Ex.P2 – Exchange deed is validly executed. When the plaintiff denied the title of the defendant and the defendant himself sets up independent title to the suit property, only the Civil Court has jurisdiction. Hence, the Judgments cited by the learned counsel appearing for the appellant is not applicable, as the plea of jurisdiction never raised before the Trial Court. Such plea taken for the first time in the Second Appeal cannot be entertained. Hence, his contention is that as the suit is filed for declaration and recovery of possession based on the title, the Civil Court has got jurisdiction to pass such a decree. Thus, he prayed for dismissal of the appeal. In support of his contention, he has also relied on the Judgment of the Hon'ble Supreme Court reported in 2019(7) SCC 76 (Sopanrao and another Vs. Syed Mehmood and others) and another Judgment of the Hon'ble Supreme Court reported in 1988(1) SCC 1964 (Sultan and others Vs. Ganesh and others). 8. Both the Courts below have clearly found that Ex.P2 – Exchange Deed has been properly executed and based on the same, the plaintiff has become the owner of the suit property. The only contention of the defendant is that the exchange deed is sham and nominal document. Both the Courts below factually found that Ex.P2– Exchange Deed validly executed and the defendant himself has admitted the execution of the exchange deed in his evidence. The courts below, considering the evidence of DW.1 and admission of DW.1, has found that the Exchange deed has been acted upon. In his evidence, DW.1 also admitted that he was permitted to occupy the suit property. Though in the plaint it is pleaded as if he was occupied as tenant, the tenancy has not been proved before the trial Court. Whereas, the defendant in the written statement not only denied the tenancy but also he sets up his independent title to the suit property. Further, in his evidence, he has admitted that he was permitted to occupy the suit property. Therefore, the trial Court has decreed the suit and the first appellate Court has confirmed the same. 9. Whereas, the defendant in the written statement not only denied the tenancy but also he sets up his independent title to the suit property. Further, in his evidence, he has admitted that he was permitted to occupy the suit property. Therefore, the trial Court has decreed the suit and the first appellate Court has confirmed the same. 9. Though in Ex.P5 - Reply notice sent by the defendant to the plaintiff, he not only denied the tenancy, but also title of the plaintiff, besides sets up an independent title to the suit property and the defendant has stated that the exchange deed is sham and nominal document, the Courts below factually found that such contention is not correct and exchange deed has been acted upon. Merely because the plaintiff has stated that the defendant has occupied as a tenant, when tenancy has not been established and the defendant, as per his own evidence admitted that he was only permitted to occupy the suit property and he claimed independent title to the suit property, this Court is of the view that the suit for declaration and recovery of possession is very well maintainable. No doubt, in the Judgment reported in 1991(3) SCC 230 (East India Corporation Ltd., Vs. Shree Meenaksi Mills Ltd.,) the Hon'ble Supreme Court has held that the Civil Court jurisdiction cannot be invoked otherwise than as stipulated in the second proviso of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and further held that the condition precedent to the exercise of jurisdiction by a civil Court is that the tenant should have denied the title of landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bonafide. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. It is to be noted that in the above case, the suit itself is filed on the ground that the building in question did not come within the purview of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 for the agreed rent, as alleged by the plaintiff-respondent and Rs.900/- per month as such outside the limit prescribed under Section 30(ii) of the Act for a residential building to fall within the statutory ambit. As per Section 30(ii) of the Act, any residential building or part thereof occupied by any tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees. Only on that situation, the suit was filed before the Civil Court. The Hon'ble Supreme court in the decision reported in 1986(3) SCC 385 (Rattan Arya Vs. State of Tamil Nadu) has struck down Section 30 (ii) of the Act as unconstitutional holding that the Civil Court jurisdiction is barred in vacating the tenants. Following the above decision, this Court has also taken a similar view in the Judgment reported in 1996(1) LW 689 (P. Rukmani Vs. R. Narayani and others). 10. On perusal of the entire pleadings, the jurisdictional plea is never raised by the defendant at any point of time. Such plea has been raised only in this second appeal. In the written statement, the defendant claimed independent title to the property and denied even the title of the plaintiff. When the defendant claimed independent title to the suit property, there is no other option except to approach the civil Court to establish the title. It is also not open to him to raise such a plea in the second appeal. It is further to be noted that in this regard, the Hon'ble Apex Court in the Judgment reported in 1988 (1) 664 (Sulthan and others Vs. Ganesh and others), held in paragraph No. 7 that; “It is clear that the relationship of landlord and tenant between the appellant and respondent was not admitted. Even before filing of the present suit the appellants disputed the relationship and claimed to be owners on the basis of adverse possession... .. Ganesh and others), held in paragraph No. 7 that; “It is clear that the relationship of landlord and tenant between the appellant and respondent was not admitted. Even before filing of the present suit the appellants disputed the relationship and claimed to be owners on the basis of adverse possession... .. Therefore, the contention that the present appellants tenants could not be evicted in a suit on this ground, does not appear to be justified as in act the suit was filed on the basis on the basis of the tile and the appellants never raised any plea of protection but relied on adverse possession and in this view of the matter it could not be said that the suit could not be decreed.” The Apex Court has also taken note of the above case and held that no plea in respect of protection under the provisions of the Rent Act was raised and issues framed by the trial Court also indicated that no such issue in respect of protection was raised. Such view of the matter, the plea in the second appeal is not permissible. 11. In this case also from the inception, the defendant denied the title of the plaintiff and claimed independent title of the suit property which was found to be incorrect by both the Courts below. Such view of the fact that the protection under Rent Control Act cannot be raised at this stage, even though the eviction can be sought against the tenant under the Rent Control Act at the relevant point of time. But, the fact remains in the present case, tenancy has not been established and the appellant has been defending his title in the suit property. Such being the position, civil suit is certainly maintainable for seeking declaration and recovery of possession on the title. Subsequent development also cannot be ignored by this Court. Admittedly, relationship of the parties is not disputed. The plaintiff is none other than the sister of the defendant. The plaintiff claims title only based on the exchange deed. Originally property was bequeathed to the defendant by his father and both of them exchanged the properties. Such being the position, the defendant becoming a tenant is also highly improper which has also not been established before the Courts below. The plaintiff claims title only based on the exchange deed. Originally property was bequeathed to the defendant by his father and both of them exchanged the properties. Such being the position, the defendant becoming a tenant is also highly improper which has also not been established before the Courts below. Such being the fact, the contention of the appellant that only Rent Controller can decide the bonafide of title did not arise. It is also to be noted that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has been repealed by the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017. Section 40(2) of the new Act indicates that the jurisdiction of the Rent Controller shall be limited to tenancy agreement submitted to it as per First Schedule and the question of title and ownership of premises shall be beyond its jurisdiction. 12. With regard to limitation, no doubt legal notice was issued in the year 1982. The suit has been filed beyond three years after issuance of legal notice. It is to be noted that suit has been filed not only for declaration but also for recovery of possession. The limitation for filing the suit for possession on the basis of title is 12 years. Merely because one of the reliefs sought is declaration, the plaintiff cannot be non suited on the ground that the suit is barred by limitation. When the suit is filed for recovery of possession based on the title within the period of 12 years, the suit is very much maintainable. In this regard the Hon'ble Apex Court in the Judgment reported in 1988 (1) 664 (Sulthan and others Vs. Ganesh and others), has held that merely because one of the reliefs sought is the declaration that will not mean that the outer limitation of 12 years is lost. The limitation for filing the suit on the basis of the title is 12 years. In view of the above Judgment, the present suit which has been filed for declaration and recovery of possession within 12 years, cannot be said to be barred by limitation. Accordingly, all the Substantial questions of law are answered against the appellant. 13. In the result, the Second Appeal is dismissed. No costs.