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2021 DIGILAW 74 (BOM)

Naneshwar Maralkar v. Esmeraldo Rego Fernandes

2021-01-14

BHARATI H.DANGRE

body2021
JUDGMENT Bharati H. Dangre, J. - The present Writ Petition, filed by the petitioner/tenant since deceased, through his legal representatives assail the judgment and order passed in the Rent Appeal no.7/2013 passed by the District Judge-I, Panaji on 11.04.2019. The said judgment, set aside the order passed by the Addl. Rent Controller and Dy. Collector of North Goa, Panaji in Rent/ARC/N/1/91 dismissing the application for eviction filed by the respondent, on the ground of denial of her title. 2. In order to appreciate the correctness of the impugned judgment, it would be necessary to delve into the background by running through the proceedings instituted by the respective parties. 3. The dispute revolves around house bearing No. 38/A situated in Corte De Oiteiro at Panaji Goa. The owner of the said house is one Antonio Neri Francisco Fernandes. The said house was leased out to Chintamona Boirov Moralkar by executing Lease Deed on 17.09.1952. The said Lease Deed was subjected to renewal from time to time and on 17.09.1959 it was renewed. The tenant Chintamona, expired and the present petitioner Mr. Naneshwar Maralkar stepped into his shoes and continued as tenant of the premises. The petitioner continued to pay the rent to the land owner till he breathed his last in 1976. The rent thereafter came to be paid to Esmeraldo Rego Fernandes, widow of Antonio, the respondent no.1, who is also represented in the petition through her legal heirs, on her demise. The tenant continued to pay the rent for almost 15 years without any default every month. 4. In the year 1985, the landlady filed proceedings for eviction against her tenant on the ground that the wife of the petitioner was allotted Municipal quarters and the entire family had shifted to the said place and after moving to the new premises, he had sub-let the tenanted premises. I am not concerned with the said proceedings but only for completing of the narration, the above fact has been mentioned. 5. On 14.03.1986, the petitioner invoked the jurisdiction of the Rent Controller, Goa by instituting case No. Rent/24/1986, seeking to conduct an inquiry as to whom the applicant should consider as landlady and pay the rent and further praying that pending the said inquiry, he should be allowed to deposit the rent due from the month of July, 1985 before the Hon'ble Court. In the said application the applicant admitted his tenancy and also admitted that he was paying rent to Esmeraldo Rego Fernandes, who is the landlady. He alleged that from the month of July, 1985 to February, 1986, rent was tendered by money order since there was a refusal to pass any receipts by the landlady, but, even the money orders were refused. The application state that he received a registered A/D letter on 18.02.1986 from one Ms. Maria Bevinda Severina Dias Costa @ Amelia Dias through her power of attorney holder stating that she is the landlady in respect of the premises occupied by the applicant and he should stop making payment of rent to Ms. Fernandes and the rent of the premises rented out should be paid to her. The applicant therefore, expressed difficulty as to whom he should pay the rent and in the light of the said facts, prayed for deposit of the rent in the Court. 6. The said application filed by the petitioner was allowed by the Addl. Deputy Collector, Authorised Officer and Rent Controller by his judgment dated 30.07.2003 and by the said order, the applicant was directed to pay rent to Ms. Maria Bevinda Severina Dias and she was directed to pass rent receipts. The said judgment was passed on the basis of an order passed by the inquiry officer whereby the claim of Ms. Maria in regards to the property and residential house has been confirmed and she was held to be the owner and possessor of the said property, holding that Ms. Maria Dias had a clear title as owner of the land. She was held to be "landlady" of the premises and was held to be entitled to the rent from the tenant. 7. The respondent Ms. Esmeraldo Fernandes instituted case no. Rent/ARC/B/1/91 on 12.03.1991 and she sought for eviction of the present petitioner from the suit premises on the ground of a denial of a title. The application of the petitioner seeking permission to deposit the rent filed under Section 18 was the basis for the application seeking his eviction. The Addl. 7. The respondent Ms. Esmeraldo Fernandes instituted case no. Rent/ARC/B/1/91 on 12.03.1991 and she sought for eviction of the present petitioner from the suit premises on the ground of a denial of a title. The application of the petitioner seeking permission to deposit the rent filed under Section 18 was the basis for the application seeking his eviction. The Addl. Rent Controller dismissed the said application by a reasoned order on 27.08.1997 by rendering a finding that the property in which the suit property is located is in dispute and the District Court has not so far given a decision as to whom the property belongs to and this situation justified the belief raised by the tenant and it was held to be a bonafide belief. The pleading raised as regard to the applicability of Section 116 of the Evidence Act was held inapplicable and by further recording that the landlady had miserably failed to prove the case that the tenant had denied her title, the application being devoid of merit came to be dismissed. 8. This order was subjected to appeal before the District Judge, North Goa, Panaji in Rent Appeal No.7/2013 by Ms. Esmeraldo Rego Fernandes and by judgment dated 11.04.2019, the finding in favour of the petitioner by the Rent Controller was reversed. The petitioner was directed to vacate the suit premises and hand over vacant possession of the same to Ms. Esmeraldo Rego Fernandes within a period of sixty days. On a detailed consideration of the material placed before it, the Appellate Court recorded that though Ms. Maria Dias had claimed to be the owner of the suit premises, Ms. Esmeraldo Rego Fernandes would be the landlady as far as the tenancy is concerned and it cannot be said that he was in any sort of doubt, on this aspect as he himself had admitted that she was his landlady and he paid rent to her as per the lease agreement with her. It was held that by filing the application before the Rent Controller seeking direction to conduct inquiry, so as to decide who he should consider as landlady would amount to denial of her title and the said denial was held to be not bonafide. It was held that by filing the application before the Rent Controller seeking direction to conduct inquiry, so as to decide who he should consider as landlady would amount to denial of her title and the said denial was held to be not bonafide. Relying upon the provisions contained in Clause (g) of Sub Section (2) of Section 22, that since the tenant had denied the title of the landlady and that such denial was not bonafide, the eviction of the petitioner was directed by the District Judge- 1, Panaji. It is this judgment which is the subject matter of the present writ petition. 9. I heard Mr. Abijit Kamat, learned Advocate for the petitioner and the learned Senior Counsel Shri A. F. Diniz with Mr. Ryan Menezes, learned Advocate appearing for the respondent. I have perused the writ petition alongwith its annexures and also gone through the two documents provided by the petitioner being the application dated 14.03.1986 bearing case No. Rent/24/86 and the judgment dated 27.08.1997 passed by the Addl. Rent Controller in Rent/ARC/N/ 1/1991. The said documents could be referred to during the course of the discussion. 10. Before dealing with the factual aspects involved in the present writ petition, which were placed before me, it would be apposite to refer necessary legal provisions. Rent Controller in Rent/ARC/N/ 1/1991. The said documents could be referred to during the course of the discussion. 10. Before dealing with the factual aspects involved in the present writ petition, which were placed before me, it would be apposite to refer necessary legal provisions. The Goa Buildings (Lease, Rent & Eviction)Control Act, 1968 define the term "landlord" in the State of Goa as under:- "'Landlord' means a person who, for the time being, is receiving, or is entitled to receive, the rent of any building, whether on his own account or on account of, or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant." The term 'Tenant" is defined as ""Tenant" means any person by whom or on whose account or behalf the rent of any building is, or but for special contract would be, payable and includes [in the event of his death the surviving spouse, or any son, or unmarried daughter or father or mother who had been living with him as a member of his family upto the date of his death and] a sub-tenant and also any person continuing in possession after the termination of his tenancy, but shall not include any person against whom any order, or decree for eviction has been made." 11. Chapter IV of the said Act adumbrate the payment and deposit of the rent. Section 18 of the said Act of 1968 contemplates a situation where there is a bonafide doubt as to the person or persons to whom the rent is payable or where the address of the landlord or his authorised agent is not known to the tenant, [or the landlord refuses to accept the rent from the tenant he may deposit such rent with the Controller in the prescribed manner. The details of the deposit and the procedure to be followed by the Controller on deposit of rent in the contingencies contained in Sub Section 1 of Section 18 is set out in Sub Section (6) to Section 22. Section 22 which is contained in Chapter V of the Act set out grounds of eviction by making an application to the Controller. Section 22 which is contained in Chapter V of the Act set out grounds of eviction by making an application to the Controller. The grounds on which the eviction can be ordered are set out in Sub Section (2) and the relevant ground for determining of the present case is Clause (g) that the tenant has denied the title of the landlord or grant the right of tenancy and such denial was not bonafide. If this contingency is made out, the Controller shall make an order directing the tenant to be put in possession of the building and if the controller is not satisfied, he shall make an order rejecting the application. 12. In the background of the said existing, legal frame work, the facts needs to be appreciated. 13. The application preferred by the petitioner which was registered as case No. Rent 24/1986 contained the following averments:- i. The applicant is a tenant in respect of premises having PMC No.38-A, situated at Corte-de-Oitere, Panaji Goa in a monthly rent of Rs.30/- from last several years. ii. All this time the applicant was paying the rent to the respondent no.2 who is his landlady. iii. The rent of the premises of and from month of July 85 have not been received by the respondent no.2 and therefore from rent July 85 upto the month of February 1986 sent by the applicant to the respondent no.2 by money orders have been refused by the respondent no.2. iv. The applicant received registered A/D letter dated 18/2/86 from the respondent no. 1 stating that she is the landlady in respects of the premises occupied by the applicant and therefore the applicant should stop asking the payment of rent in respect of the premises occupied by the applicant to the respondent no.2 and further stated that the applicant should pay the rent of the premises to the respondent no.1. Para 5 to 6 is in the form of prayer which reads thus. v. In view of the above it has become difficult for the applicant to pay the rent of the premises and therefore pray this Hon'ble Court to decide after conducting the inquiry as to whom the applicant should consider his landlady and pay the rent of the premises. vi. v. In view of the above it has become difficult for the applicant to pay the rent of the premises and therefore pray this Hon'ble Court to decide after conducting the inquiry as to whom the applicant should consider his landlady and pay the rent of the premises. vi. Pending the inquiry the applicant be allowed to deposit therent from July 85 at the rate of Rs.30/- p.m. As also future rent in this Hon'ble Court and therefore, pray that necessary challan be issued to the applicant. 14. The bone of contention between the parties is this application. The learned Senior Counsel Mr. Diniz would submit that the petitioner tenant has denied the title of the landlord and the said claim was not bonafide. By referring to the said application, the learned Counsel would urge that an inquiry was sought as to who was the landlord and to whom he should pay the rent of the premises. This pleading itself according to Mr. Diniz appear to be an attempt to question the title of the landlord. To establish that the claim was not bonafide, Mr. Diniz would invite attention to the necessary facts which would divulge that it is not a bonafide action. He state that the said application has been preferred as a counter blast to the eviction proceedings instituted by the respondent bearing No. Rent/ARC/48/1985 on the ground that the wife of the petitioner has been allotted residential premises and the entire family had shifted there and are staying there for over four months. It is alleged that thereafter the petitioner stopped paying rent to the landlady and instituted the proceedings in the form of Rent/24/1986 which is not in good faith but pretending that he is in doubt as to who is the landlord. This is clear denial of the title of the landlord knowing too well that who had leased the suit premises to him and also conscious of the fact that all these years the rent was paid to her. This action has been clamped as malafide. Per contra, the learned Counsel Mr. Kamat appearing for the petitioner would urge that if the application is read carefully, in no way it lead to questioning the title of the landlady as in para 2 there is a specific admission that the respondent is the landlady. 15. I find substance in the submission of Mr Kamat. Per contra, the learned Counsel Mr. Kamat appearing for the petitioner would urge that if the application is read carefully, in no way it lead to questioning the title of the landlady as in para 2 there is a specific admission that the respondent is the landlady. 15. I find substance in the submission of Mr Kamat. The petitioner has admitted that he is a tenant of the premises mentioned in Clause (1) of the application and he was paying rent to Ms. Esmeraldo Rego Fernandes who is landlady, but since he received a letter on 18.02.1986, from Maria Dias claiming that she is the landlady in respect of the premises occupied by him and that hence forth the rent should be made over to her, it was difficult for him to pay the rent and he was in state of dubiety as to whom the rent should be tendered. The application cannot be said to lack bonafide particularly in light of the Civil Suit instituted at the side of landlord against Maria Dias in the Court of Civil Judge, Senior Division, Panaji which cover the subject property. The said suit was contested by Ms. Maria and this fact is borne from the record as son of the respondent landlord, Patrick Fernandes entered into the witness box and has admitted the pendency of the said proceedings. By the said suit a declaration was sought to declare Ms. Esmeraldo Rego Fernandes as owner in possession of the suit property and to delete the name of Maria Dias from the City Survey Records. 16. I need not go into the said controversy but the material placed on record reveal that in Rent Appeal no. 7/2013 when Patrick Fernandes had stepped into the witness box before the District JudgeI, Panaji, he has given the details of the Civil Suit and its journey. He had admitted in his cross examination before the said Court that even till date, the name of Maria Bevinda Dias Costa is figuring in survey record and steps will be taken to delete her name. This is what is deposed before the Court on 29.09.2018. Admittedly the civil proceedings were going on between the respondent and Ms. He had admitted in his cross examination before the said Court that even till date, the name of Maria Bevinda Dias Costa is figuring in survey record and steps will be taken to delete her name. This is what is deposed before the Court on 29.09.2018. Admittedly the civil proceedings were going on between the respondent and Ms. Maria Dias and since the applicant received a notice from her demanding the payment of rent, it gave rise to hesitancy on his part and doubt flickered in his mind as to whom he should pay the rent. By no stretch of imagination can it be said that he doubted her title but since he was under bonafide doubt as to the person or persons to whom the rent is payable and since there was refusal on the part of the respondent to accept the rent from him, he moved an application under Section 18 of the Goa Buildings (Lease, Rent and Eviction) Control Act, 1968 and sought relief to the limited extent as to whom he should consider as landlord and pay rent of the premises. The petitioner was paying the rent continuously to Ms. Esmeraldo Rego Fernandes since he accepted her to be his landlady but the notice by third party left him in a dilemma as to whom the rent should be paid. He did not attempt to question her title as he had accepted that she was the landlady, but he thought it fit to approach the Rent Controller to seek direction under Section 18 of the said Act. The Rent Controller by order dated 30.07.2003 issued direction to pay rent to Ms. Maria Dias to the exclusion of the respondent. An authority competent to deal with the issue by a reasoned order held that the petitioner should pay rent to Ms. Maria Dias as she was holding a clear title as owner of the land. 17. In the eviction proceedings initiated by respondent by application dated 12.03.1991, the Addl. Rent Collector has ruled against the landlady since he noted that a dispute as regards the suit premises was ongoing in the Civil Court and therefore the doubt raised by the tenant was bonafide. 18. By the impugned judgment, the Appellate Authority i.e. District Judge- I, Panaji recorded that the petitioner's application amounted to denial of the title of the landlord and the denial was not bonafide. 18. By the impugned judgment, the Appellate Authority i.e. District Judge- I, Panaji recorded that the petitioner's application amounted to denial of the title of the landlord and the denial was not bonafide. The impugned order referred to the evidence on record but failed to appreciate the said evidence where the petitioner himself stepped into the witness box. He categorically admit that he is the tenant for the last 40 years and that for initial years his parents had paid the rent and he categorically outlined the reason why he filed case No. Rent/24/1986. He also averred that he never denied the title of the applicant or disputed that she is the landlady. In the cross examination, he has clearly admitted Ms. Esmeraldo Rego Fernandes to be his landlady and that all the while he was paying the rent to her. The son of Ms. Esmeraldo Fernandes had also stepped into the witness box and also admitted the execution of the lease deed and in cross examination he clearly state that though the tenant has acknowledged her as landlady, he had difficulty in deciding to whom the rent should be paid. There is also admission that his mother had filed proceedings against Ms. Maria Dias in respect of the suit house and property. The impugned order however failed to take into consideration the said evidence brought on record. 19. The evidence brought on record before the Appellate Authority reveal that the petitioner did not deny the title of his landlady but since he was in doubt as to whom the rent was to be paid, approached the Rent Controller. The requirement of Sub Clause (g) of Section 22(2) being raising up of claim of denial of title in a malafide manner, I foresee no such exigency in said application particularly when there is justification for the doubt being raised as to whom the rent should be paid and since a notice was received by the petitioner from the adversary of the respondent no.1 who had filed the suit. 20. The submission of the learned Sr. 20. The submission of the learned Sr. Counsel about the presumption under Section 116 of the Evidence Act will not come into picture in the present case since the rule of estoppel contained in the said section estopp a tenant during continuance of the tenancy to deny that the landlord of such tenant at the inception of tenancy had a title to such immovable property. The petitioner had never disputed the title of the respondent at the inception of the tenancy and in fact in his cross examination he has referred to lease agreement of 1972 and admitted that prior to that his father was tenant of the suit premises leased out by the landlady and earlier from her husband. The estoppel will not therefore, operate against the present petitioner who do not dispute that the respondent is his landlady. The burden is on the landlord to adduce the evidence substantiating his allegation that there was denial of his title by the tenant and that such a denial was not bonafide. In absence of the said burden being discharged, the tenant is not duty bound to adduce proof about the denial. Undisputedly, the denial would have to be construed and determined on the basis of the surrounding facts and circumstances and in the present case, where the petitioner has categorically averred in the application as well as deposed before the court, the circumstances leading to a doubt in his mind as to whom the rent had to be paid and he had no scruple over the aspect as to who is his owner, the estoppel contemplated under Section 116 of the Evidence Act will not operate. 21. The reliance placed by the learned Senior Counsel, Mr. Diniz, on the judgment in the case of Sheela and ors. Vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 in fact fortify the finding recorded above. 21. The reliance placed by the learned Senior Counsel, Mr. Diniz, on the judgment in the case of Sheela and ors. Vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 in fact fortify the finding recorded above. The Apex Court was dealing with the provisions contained in Section 12(1)(c) in the M.P. Accommodation Control Act, 1961 which is in form of a restriction of eviction of tenant and provide that no suit shall be filed in any civil court against a tenant for his eviction except on the ground that the tenant or any person residing with him has created a nuisance or has done any act which is consistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein. The Apex Court therefore deliberated and held that a tenant's denial of the landlord's title and/or disclaimer of tenancy has been held to be an act which is likely to affect adversely and substantially the interest of the landlord. The ratio following from the said authority will therefore have to be construed in light of the provision which was the subject matter in the said case. 22. The judgment in the case of J.J.Lal Pvt. Ltd. and ors. Vs. M.R.Murali and anr, (2002) 3 SCC 98 , in which a somewhat similar provision contained in T.N. Buildings (Lease and Rent Control) Act, 1960 fell for consideration, in the backdrop of the scheme of the Act, it is held by their Lordships, that it is for the landlord to allege and prove a ground for eviction entitling him to an order of eviction and disentitling the tenant of his protection enjoyed under the Act. To claim eviction under Section 10(2)(vii), it is for the landlord to allege that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bonafide. In the said case, the tenants of the Municipal Corporation had never itself questioned the title of their landlord at the inception of their tenancy nor set up any title in themselves and in the given background it was held that no case of eviction on the ground of tenant's denial of landlord's title not being bonafide has been made out. The said judgment relied by the learned Senior Counsel Mr. Diniz, therefore is not of any succour to him 23. In the totality of the aforesaid circumstances, the impugned JUDGMENT passed by the District Judge holding that there was a denial of title by the petitioner and the said claim was not bonafide , and directing eviction of the petitioner, in the absence of any evidence adduced to that effect by the landlord deserves to be quashed and set aside and is accordingly set aside. 24. The Writ Petition is allowed in terms of prayer Clause (a). Easy on costs.