Ganesan. R. vs Y. Rajanayagam and 4 others

A.R. Lakshmanan, J.—Against the order of eviction passed by the Rent Controller and as confirmed by the Appellate Authority, the original

tenant''s son who was impleaded as the second respondent during the pendency of the matter before the Rent Controller, has filed this revision.

The respondents herein filed R.C.O.P No. 84/87 before the Rent Controller (District Munsif) Tirunelveli, against the present petitioner''s father one

Ramakani Nadar, seeking eviction from the scheduled mentioned premises, on the ground of demolition and reconstruction. The petitioner''s father

took the defence in the above petition that the respondents were not the owners of the superstructure, but only to the land and therefore, the Rent

Controller had no jurisdiction and he had the protection under the City Tenants'' Protection Act, since he (the original lessee Ramakani now dead)

was the owner of the superstructure. In support of his claim, he filed several documents including the lease deed, property tax, demand notice and

receipt and electricity bills which were in the name of the tenant.

It is also the case of the tenants that the respondent''s mother Gnanaprakasi Ammal who died during the pendency of the RCOP before the Rent

Controller earlier filed HRCOP. No. 166 of 1984 against the tenant on the ground of requirement of personal use and referred to the property

only as vacant site. It is the case of the tenants/petitioner herein that the Rent Controller failed to appreciate the significance of the document

marked by them as Ex. R2.

Aggrieved by the order of the learned Rent Controller dated 21.6.93 ordering eviction, the tenants filed RCA. No. 37 of 1993 before the

Appellate Authority (Subordinate Judge), Tirunelveli who also dismissed the appeal by his order dated 30-10-96 by confirming the order of

eviction passed by the learned Rent Controller.

It is contended that the order of the authorities below is contrary to law, weight of evidence and appreciation of the facts. It is contended that

the Appellate Judge has placed the burden of proof wrongly on the petitioner to establish that he was the owner of the superstructure, and that on

the contrary, the Courts below ought to have seen that the burden of proof of establishing that the lease was in respect of building, had not been

established at all by the landlord. Further it is contended that the Courts below failed to properly consider the over-all effect of the property tax

assessment in the name of tenant, the payment of property tax, electricity bills, etc., as clearly pointing out the bona fide dispute with respect to the

title to the property.

The respondents reiterated the contentions raised before the Courts below.

I have heard the arguments of Mr. Kannan, learned counsel for the petitioner and Mr. S.S. Sunder, learned counsel for the respondents.

The Rent Control Petition was filed by the mother of the respondents herein Gnanaprakashi Ammal against the father of the petitioner herein-

Ramakani Nadar u/s 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act). According to

the landlady, the petition premises in non-residential premises and it is only a temporary shed erected on wooden poles, with tiled roofing. The

landlady has proposed to build a modern, more income earning building to suit the modern requirements, as the site is in the heart of the municipal

town, after demolishing the existing constructions. The tenant was paying a monthly rent of Rs. 275/-. The landlady further contended that she has

submitted plan to the municipality for the proposed building and the same has also been approved and that she has sufficient funds to undertake the

demolition and for new construction. The landlady further submitted that her requirement is immediate and has also given undertaking that the work

of demolition of the building shall be fully done and completed before the expiry of three months from the date they recover possession of the entire

building.

The said petition was resisted by the original tenant Ramakani Nadar by filing a counter statement. According to him, as per the agreement

dated 1.3.1964 and as per the lease agreement dated 12.5.1982, the said land was leased out to him and the tenant was permitted to put up

building in accordance with his convenience and that pursuant to the said agreement, he has put up superstructure and actually living thereon.

According to him since the land alone was leased out to him, the provisions of the Act cannot be invoked. It is the contention of the tenant that he

is also entitled to the protection of the City Tenant''s Protection Act. In support of his contention, that vacant site alone was leased out to him, the

tenant placed strong reliance on the averments made in the earlier RCOP. No. 166/84 filed by Gnanaprakashi Ammal against Ramakani Nadar

under Sec. 10(3) (a) (iii) of the Act. It is also stated that the said RCOP. 166/84 was withdrawn. Since the landlady made attempts to evict the

tenant forcibly, the tenant was compelled to file O.S. 313/86 on the file of the District Munsif Court, Tirunelveli for an injunction restraining the

respondent therein from forcibly evicting the petitioner herein and also obtained injunction in his favour. The tenant therefore contended that the

alleged bona fide requirement for the purpose of demolition is not correct and that the intention on the part of the landlady is explicit.

Before the Rent Controller, on the side of the landlady seven documents were filed and they are 1) sanctioned plan dated 19.2.87; 2 to 6) Pass

Book and 7) sale deed dated 14.10.87 for Rs. 30,000/-. On the side of the tenants, Exs. Rl to R55 were marked and apart from these documents

marked by the parties, the advocate commissioners'' report and sketch have been marked as Exs. Cl and C2. On behalf of the landlady, one

Rajanayagam was examined and on the side of the tenants, the original tenant''s son Ganesan, who is the petitioner herein and also one Narayanan

were examined. After trial, the learned Rent Controller ordered eviction and aggrieved by the same, the petitioner herein viz., Ganesan filed RCA.

No. 37 of 1993 before the Appellate Authority (Subordinate Judge) contending that the Rent Control Petition is not maintainable under the Rent

Control Act and that the Rent Controller has failed to found that the superstructure belonged to the petitioner''s father Ramakani Nadar and that

what was originally leased out to the petitioner''s father was only a vacant site and that this apart the Rent Controller has totally misinterpreted the

terms of Ex. R3 and has not properly understood the scope of the property tax receipts Ex.R11 to R29. He has also raised other contentions. The

Appellate Authority, by his order dated 30.10.1996, dismissed the appeal. Aggrieved by the said order, the above revision has been filed by the

petitioner herein.

In this case, as rightly pointed out by the learned counsel for the petitioner/tenant both the Courts below have failed to see that the burden of

proof was always on the landlady, to establish that the demise was in respect of the building and in the present case, on the face of specific denial

by the tenant that the lease included the building, I am not impressed with the finding of the Courts below on this aspect. The Courts below have

failed to find that the landlady had failed to discharge the burden with reference to any document. In matters like this, the Courts below have to see

whether the denial by the tenant was bona fide or not and if the denial was found to be bona fide, the authorities constituted under the Act had to

direct the parties, to establish their respective title before the Civil Court. In this case, three documents have to be looked into to clinch the issue.

They are Exs.R2, R3 and R10. Exs.R3 and R10 are the lease deeds. The Courts below failed to examine these two documents and the recitals

regarding description of property in the notice through counsel (Ex.R2) and in the previous Rent Control Proceedings in HRCOP. No. 166/84. In

Ex.R3 and R10, it has been specifically mentioned that what was leased out is only a site. In this case, the voluminous records filed by the tenant

would clearly show that not merely the payment of tax, but the assessment of the property tax itself stands in the name of the tenant and the

payment of electricity charges etc., in my opinion, prove positively the fact that the dispute regarding the superstructure is bona fide. Likewise, the

courts below have not properly constructed the tax receipts. Ex.R11 to R14 & R17 to 25 are property tax receipts; Exs.26 to 29 are the challans

for the payment of property tax; Ex. R30 is the card issued by the electricity board; Exs.R31 to 41 are electricity bills and Exs.R42 to R46 are

receipts for payment of electricity charges; Ex.R47 is the electricity consumption card issued by the TNEB and R48 to R50 are also receipts

issued by the TNEB. I have carefully perused the documents viz., tax receipts and the cards, bills and receipts issued by the Electricity Board. The

property tax receipt and the assessment stand only in the name of the tenant and the reference L/0-(land of) in some of the documents means that it

is the land of Gnanaprakashiammal and not the lessee of Gnanaprakashi Ammal. I have already noticed the filing of HRCOP. No. 166/84 by the

landlady against the tenant. The said petition was withdrawn later. The said document was relied on by the learned counsel for the tenant to show

that the bona fide of the landlady can be tested in the context of the earlier application for eviction on the ground of personal use and occupation,

and confronted with insurmountable difficulties with reference to the description of property sans superstructure in the petition, as originally written

and in the notice sent through counsel, the landlady withdrew the petition and came forward with totally a new concept, that she is the owner of the

site and superstructure and that she requires the building for the immediate purpose of demolition and reconstruction. In this case, the landlady has

filed only seven documents viz., sanctioned plan dated 19-2-1987 and a sale deed dated 14.10.1987 and pass books. Though the landlady has

stated that there were other tenants in occupation of different portions of the superstructure, she has not proved the said statement by letting in any

acceptable evidence. She also had not examined any of the tenants and the Courts below have solely accepted the ipso dixit of the landlady and

ordered eviction on the ground that the other tenants had offered to vacate the property. In my opinion, the failure to produce the other tenants as

witnesses in this case to substantiate her claim that the superstructure was put up by her, is fatal to the case. Since I am deciding the issue on the

question of jurisdiction of the Rent Controller, I refrain from adverting to the documents or of the merits of the claim of the landlady under Sec.14

(1) (b) of the Act. In short, I can say that both the Courts below have upheld the landlady''s uncorroborated evidence though both the Courts

below have written a long order, have missed the vital issue whether the Rent Controller had jurisdiction to decide the Rent Control Petition in the

present case. The voluminous documentary evidence let in by the tenant will clearly prove beyond any reasonable doubt that what was leased out

is only a vacant site and that the tenant has put up the superstructure pursuant to the lease deeds and that the tenant is entitled to the protection

under the City Tenants'' Protection Act. The conduct of the landlady in filing the HRCOP No. 166/84 on a totally different ground and

withdrawing the same will go a long way to prove the case of the tenant, whose specific contention is that the site alone was leased out under the

two lease deeds. Further, the oblique motive of the landlady to throw out the tenant, can also be seen from her conduct and the filing on O.S.

313/86 by the tenant on the file of the District Munsif Court praying for an injunction restraining the defendants therein from vacating the plaintiff

forcibly from the building and superstructures in question. It is not in dispute that the tenant has obtained an order of injunction restraining the

landlady from evicting him forcibly without following due process of law. Both the Rent Controller and the Appellate Authority ought to have found

that the eviction petition is not maintainable under the Act and that the superstructure does not belong to the landlady and that the same belonged

to the original tenant Ramakani Nadar. Both the Courts, as rightly pointed out by the learned counsel for the tenant, ought to have held that what

was originally leased out to the present petitioner''s father was only a vacant site, that the description of the property in the schedule to the lease

deeds makes it clear and they ought to have directed the landlady to move the Civil Court for necessary relief. Both the Rent Controller and the

Appellate Authority have mis interpreted the terms of Ex.R3. Likewise, they misinterpreted and have not properly understood the circumstances in

which the property tax receipts were given. The fact that Ramakani Nadar''s name is mentioned along with the landlady clearly proves the fact that

the superstructure was put up by Ramakani Nadar and because of the fact that the landlady to be the owner of the site, her name also had been

included in the property tax demand notice and receipts. Both the Rent Controller and the Appellate Authority are totally wrong in stating that

because of the name of the landlady is mentioned, the demand notice and the receipts, she should be deemed to be the owner of the

superstructure. The said finding is not correct. Likewise, both the Courts are wrong in drawing an adverse inference from the fact that the petitioner

did not produce approved municipal plan for construction of superstructure, the building is not put up by the tenant. In this context, both the Courts

have failed to notice that after a lapse of nearly 25 years, the parties cannot be expected to retain the approved municipal plan and to produce the

same in Court or keeping the same in safe custody expecting the litigation to crop up after 25 years, the Courts below have failed to draw such an

adverse inference against the landlady for their non-production of an approved plan with reference to the superstructure in question. So also, the

report of the advocate commissioner also has not been properly understood by the Courts below. The commissioner says in his reply about the

existence of 21 shops whereas the Rent Controller has mentioned that there are only 7 shops.

Coming to the oral testimony, I am of the view that the oral testimony of R.W. 1 is cogent and convincing. On the other hand, the evidence let

in on the side of the landlady is not satisfactory.

In the counter affidavit filed by tenant in HRCOP. No. 166/84, which is marked as Ex.R6 in this case, it has been stated clearly that the tenant

had executed a further agreement in favour of the landlady once in two years or three years as the case may be and that the last of the agreement

was executed on 12-5-1982 and that under the original agreement, the tenant is entitled to put up superstructure at his own costs and convenience

and what was originally leased out was, only a vacant site and so the landlord is the owner of the site only and all the superstructure in the

scheduled premises was put up by the tenant and they belong to him. The maintainability of the earlier HRCOP. No. 116/84 was also raised in

para-3 of the said counter statement. The tenant has specifically stated that the Rent Controller has no jurisdiction to entertain the petition, since the

lease in favour of the tenant was only a lease in regard to a vacant site alone and in all the lease deeds, the scheduled property has been uniformly

described as a vacant site and no buildings are referred to. Even in the notice served prior to the said petition, there was no mention about the

same. In the earlier petition filed for eviction, it was mentioned that the premises was required for the business of her son and that the petition was

filed u/s 14(1) (b) of the Act. Even in the counter affidavit filed in HRCOP. No. 166/84, the tenant has specifically raised the point that he is

entitled to the benefits of the City Tenants'' Protection Act also. Exs. R11 to R14 are the demand notice issued by the municipality only to the

tenant and not to anybody else. The property tax demands under Exs. R11 to R14 have been raised only in the name of Ramakani Nadar, the

original tenant, who is the father of the present revision petitioner. Likewise, the electricity bills were also issued in the name of the Ramakani

Nadar, the tenant and he alone has paid the electricity charge?, throughout for the superstructure.

The oral evidence of the tenant is categoric, but at the same time, the evidence let in on the side of the landlady is evasive. In cross

examination, P.W.1 says that as per Ex.R3,the tenant has to enjoy only the land and that he cannot say that the signature contained in the lease

deed of the year 1964 is that of his father and that he cannot say that the property assessment No. 182/E is in the name of the tenant. On the other

hand, the evidence of R.W.1, as already noticed, is clear on very many vital aspects of the matter. He says that his father took the site on lease on

1.3.1964 under Ex.P10 and that they filed the suit when the landlady made attempts to forcibly vacate them. He also speaks about the demand

notices Exs. R11 to R14, assessment notice Exs.R15 and R16, property tax receipts Exs. R17 to R25, Challans for payment of property tax

Exs.R26 to R29, bills by the TNEB, receipts for electricity charge payment, service connection card etc., under Exs.30 to 50. All these documents

show that all the receipts stand in the name of the petitioner''s father Ramakani Nadar and all the necessary electricity charges, property tax and

other things were paid only by the father of the revision petitioner herein. In the cross examination of the R.W.1 nothing has been elicited to

discredit his testimony.

The discussion above made would also reveal that there is bona fide dispute with regard to the title to the building concerned in this petition. If

there is a bona fide dispute with regard to the title, as per the proviso (1) of Section 10 of the Act, the landlady shall be entitled to pursue the

eviction of the tenant in a Civil Court alone. For the purpose of convenience, 1 shall extract Section 10(1) of the Act as follows:

Eviction of tenant(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of

this Section or Sections 14 to 16:

Provided that noting contained in the said Sections, shall apply to a tenant whose landlord is the Government;

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the

denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court

and the Court may pass a decree for eviction on any grounds mentioned in the said sections, notwithstanding that the Court finds that such denial

docs not involve forfeiture of the lease or that the claim is unfounded.

As already mentioned, there is a bona fide dispute with regard to the title of the building which is the subject matter of this petition. My above view,

would cease the jurisdiction of the Rent Controller to entertain the claim for eviction on the ground of demolition and reconstruction under

Sec.14(1) (b) of the Act. Therefore it is wholly unnecessary for me to give a finding on the other matters in dispute between the parties, viz,

whether the landlady requires the premises for immediate demolition and reconstruction. Hence, I am not recording or rendering any finding with

regard to that aspect of the case. It is left open to the parties, to raise those points in the Civil Court.

I therefore, have no hesitation to hold that the landlady miserably has failed to prove the existence of relationship of landlady and tenant in the

instant case. Further, I am clearly of the opinion that the authorities below have entirely ignored the vital aspects of the matter in issue; in arriving at

their conclusion in favour of the landlady. Therefore, I am fully satisfied that the decision rendered by both the authorities below cannot be allowed

to stand. For a landlady seeking to evict a person who is in occupation of a premises, the landlady will have to establish her right to the relief.

Further she must show that the occupant is a tenant and she, the petitioner is his landlady. She must also establish that the occupant is a tenant and

she the landlady is receiving the monthly rent from him for the building. In the instant case, the landlady came forward with the assertion that there

was a lease for the building and that she requires the said building for the immediate purpose of demolition and reconstruction. When her assertion

was not proved and borne out by the admission made by her witnesses, that what was leased out was a building, her claim fails. Whereas the

contention of the tenant that what was leased out was a site, was amply proved by the voluminous documentary evidence let in by him which is

also corroborated by the oral evidence of the tenant.

Even on merits of the eviction petition, the documents filed on the side of the landlady will not be of any assistance to decide the question as to

whether the lease is in respect of the site alone or for the superstructure. I have already discussed and arrived at a conclusion in the paragraphs

supra that what was leased out to the tenant was only a vacant site and that the superstructure was put up by the original tenant Ramakani Nadar

and in view of the above finding, I have not considered the claim of the landlady with regard to her requirement of the superstructure for the

immediate purpose of demolition and reconstruction u/s 14(IXb) of the Act. Therefore, I am of the view that the documents filed on the side of the

rand-lady, Exs.Pl to P7 which are a sanctioned plan, pass book and a sale deed need not be considered. For all the foregoing reasons, I am of the

view that the civil revision petition is liable to be allowed and accordingly, it is allowed and both the order of the Appellate Authority made in

R.C.A. No. 37 of 1993 dated 30-10-1996 and the order of the Rent Controller made in R.C.O.P. No. 84 of 1987 dated 21-6-1993 are hereby

set aside and the RCOP. No. 84 of 1987 stands dismissed. However, it is made clear that since this Civil Revision Petition is allowed on the

question of jurisdiction of the Rent Controller to entertain the claim for eviction, it is left open to the parties to raise the question in a competent

Civil Court. However, there will be no order as to costs. Consequently, CMP. No. 2599/97 is dismissed.