Abdul Kareem vs Rabiabee (died) and Jamal Abdullah

Honourable Mr. Justice T.S. Sivagnanam

This revision petition filed, under Article 227 of the Constitution of India, is directed against the fair and decreetal order, dated 08.02.2002, in

R.C.A.No.152 of 1991, on the file of the VII Judge, Small Causes Court, Chennai, confirming the order in M.P.No.278 of 1990, in

RCOP.No.1572 of 1989, dated 04.02.1991, on the file of XII Judge, Small Causes Court, Madras. The petitioner is the tenant and the

respondents are the landlords. The landlord filed RCOP No. 1572 of 1989, for eviction of the tenant from the petition premises on the ground of

willful default in payment of rent.

The case of the landlord is that the petition premises bearing door No. 16, Velayutham Street, Muthaiyalpet, Chennai - 1, was purchased by the

landlord, Ribiabee from one Mr.Fiaz Ahamed on 02.12.1986 and the sale deed was registered in Bombay. After purchasing the property, she

demanded payment of rent and since the tenant failed to pay the rent, the eviction petition was filed. During the pendency of the eviction petition,

the landlord filed a petition in M.P.No.278 of 1990, u/s 11(4) of the Tamilnadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as

the ''Act''), claiming arrears of rent for the period from December 1986 to January 1990. The learned Rent Controller after enquiry, allowed the

petition and directed the tenant to deposit the amount into Court on or before 21.02.1991. Challenging the said order, the tenant preferred an

appeal in RCA.No.152 of 1991, before the learned Appellate Authority and the said appeal was dismissed, by judgment dated 08.02.2002.

Aggrieved by the concurrent judgments, the present revision petition has been filed.

The learned counsel appearing for the landlord submitted that the revision petition has become infructuous, as the tenant failed to deposit the rent

as directed in the application filed u/s 11(4) of the Act, the learned Rent Controller ordered eviction on 12.03.2002 and against the said order of

eviction, the tenant preferred RCA.No.424 of 2002, before the VII Small Causes Court, Chennai and in the said proceedings, a memo of

compromise was filed and recording the memo, the learned Appellate Authority dismissed RCA.No.424 of 2002, filed by the tenant, as settled out

of Court, by judgment dated 11.08.2008 and therefore, nothing further survives for adjudication in this revision and the revision has become

infructuous.

However, the learned counsel for the revision petitioner submitted that the tenant was forcibly evicted and certain criminal proceedings have

been initiated by the tenant against the landlord and therefore, the matter has not become infructuous.

The learned counsel for the petitioner submitted that the petitioner became a tenant under M.Abdul Kareem during 1979, for monthly rent of

Rs. 175/- with a oral condition that the tenant shall maintain the building and pay all taxes. Soon after, the tenancy M.Abdul Kareem died and after

his demise, his daughter Julega Bi was collecting rents and she also subsequently died and since, there were no legal heirs, the property became

ownerless and therefore, should vest with the Wakf Board. It is further submitted that the respondent is a total stranger and the respondent claims

to have purchased the property from the son of Julega Bi and Sheik Usman Shaib, but the husband of Julega Bi is not Sheik Usman Shaib and

therefore, the said sale transaction in favour of the respondent is fraudulent. The learned counsel further submitted that on the date of execution of

sale deed by Fiaz Ahamed in favour of the respondent, he was only 19 years of age and these factors are very germane to decide the title to the

property and the learned Rent Controller cannot decide this question and the matter ought to have been referred to the Civil Court for deciding the

question of title. The learned counsel referred to the proviso to Section 10 of the Act and submitted that when, there is bonafide dispute regarding

title, the learned Rent Controller cannot decide the issue.

The learned counsel further submitted that mere payment of rent to Rabia Bee, cannot be a ground and though, she had executed a power of

attorney and when the power of attorney was in force, she could not have deposed in the proceedings. The learned counsel also elaborately

referred to the findings of Courts below and submitted that Rabia Bee was never the landlady. The learned counsel further submitted that the

Courts below concurrently erred in not deciding the question regarding the bonafide dispute as regards the title to the property and therefore, the

orders deserve to be set aside.

Per contra, the learned counsel for the respondent submitted that Rabia Bee was the sole and absolute owner of the property and the tenant did

not dispute that he was a tenant under the previous owner Julega Bi. It is further submitted that documents from the year 1940, were produced

before the Court to establish title and the trial Court passed a judgment after considering all the aspects, which has been affirmed by the learned

Appellate Authority and such concurrent findings should not be interfered by this Court.

Heard the learned counsels for the parties and perused the materials available on record.

When judgment was reserved on 18.01.2012 in this revision petition, this Court passed an order, directing the Registry to call for the records

from the lower Court in RCA No. 152 of 1991, RCOP.No.1572 of 1989, M.P.No.278 of 1990 in RCOP.No.1572 of 1989 and RCA.Nos.424

and 427 of 2002. The said records were forwarded by the Registrar, Small Causes Court and received by the Registry of this Court on

03.02.2012. After perusal of the said records, this order is made.

On a perusal of the facts, which appears to be admitted by the parties that the original owner M.Abdul Kareem died leaving behind his only

daughter Julega Bi. The petitioner has admitted that he has been paying rents to the said Julega Bi. The said Julega Bi was married to one Abdul

Majeed and they did not have any issues and subsequently, she was married to one Sheik Usman Shaib and a male child was born to them, was

named Fiaz Ahamed. The said Fiaz Ahamed the vendor, had been receiving rents and from the reply notice dated 22.07.1988, it is seen that the

petitioner admitted that rents upto December 1996 was paid to Mr.Packeer Mohaideen, who was acting as the power agent of the owner of the

premises.

Further, Exhibit P-16, which is the partition deed, dated 13.06.1988, entered into between Rabia Bee and her sister, has been marked.

Further, the copy of the sale deed executed by Fiaz Ahamed in favour of Rabia Bee, has also been marked as Exhibit P-3 and proof to show that

it is a registered document in the Sub-Registrar office, Bombay has been proved, by producing Exhibit P-1. The Court Exhibits C1 and C2 are the

records produced from the Sub-Registrar Office, Chennai North to establish that the sale deed dated 02.12.1986, which was registered in the

Sub-Registrar Office, Bombay, has been intimated and recorded in the Sub-Registrar Office, Chennai North. The learned Appellate Authority has

elaborately analyzed this aspect and concurred with the findings of the learned Rent Controller. Further, from the records called for from the trial

Court, it is seen that the main RCOP has been allowed and eviction has been ordered on 12.03.2002. Further, it is seen that there was a

compromise and the appeal filed by the tenant against the order of eviction, has also been dismissed. The learned counsel appearing for the

petitioner raised objection stating that no such compromise was arrived at However, the records show that a memo of compromise was recorded

by the learned Appellate Authority in the appeal filed by the petitioner herein. Be that as it may, since the main eviction petition itself has been

allowed and eviction has been ordered on 12.03.2002 and the appeal filed against the said order of eviction having been dismissed, nothing further

survives for adjudication in this revision petition. However, on the merits of the case also, it is held that the Courts below rightly appreciated the

oral and documentary evidence and passed the order u/s 11(4) of the Act, directing the tenant to pay the arrears of rent and in the absence of any

perversity in the findings of the Courts below, this Court exercising jurisdiction u/s 25 of the Act, does not propose to convert itself into a second

Court of first appeal. Accordingly, the Civil Revision petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition is

closed.