M. Narayanaswami vs Roya Poulle Amala

A.R. Lakshmanan, J.—The unsuccessful tenant before both the authorities below is the petitioner in this Civil Revision Petition. The

respondent/landlady file R.C.O.P. No. 99 of 1992 on the file of the Rent Controller, Pondicherry, against the tenant u/s 10(2)(1) of the

Pondicherry Buildings (Lease and Rent Control) Act 1969, for eviction. The case of the landlady is that she is the owner of the building situated at

the junction of legacy Mainstry Street and Bharathi Street bearing Door No. 32-A (New No. 42) at legacy Mainstry Street and Door No. 218

(New No. 466) at Bharathi Street, Pondicherry and that the ground floor portion of the said building was leased out to the tenant on a monthly rent

of Rs. 200/-. It is her case that on 3.4.1990, the landlady and her sisters and brothers had effected a partition of their joint family properties under

a registered partition deed in which the demised premises and the building was allotted to her share. The tenant, though paid the rent till July, 1991,

has committed default thereafter and has not chosen to pay the rent in spite of several demands to pay the same. The landed on 11.1.1992 and

26.3.1992 sent a notice and a corrigendum respectively to the tenant calling upon him to pay the arrears of rent and also vacate and deliver

possession. The tenant, though received the same, did not send any reply. Thus, the tenant has committed willful default in payment of rent since he

did not choose to pay the rent even after receipt of the notice. The tenant being a chronic defaulter is liable to be evicted.

The tenant filed a counter affidavit denying the allegations of the landlady. According to him, the respondent herein is not the owner of the

building and that therefore, she has no authority to collect the rent. He had never seen any person by name P. Raghunath and never paid him any

rent as alleged. It is his case that he has been occupying the petition mentioned premises as an absolute owner of the same and never paid any rent

to anybody. He also denied the family partition as false and an imaginary, one and has been invented for making untenable claim over the premises

in question. The tenant is in possession and enjoyment of the property as an absolute owner of the same and the alleged partition deed is only a

fabricated document among the members of the family and as such, it will not create any right or interest over the petition mentioned property in

favour of the landlady. He has not committed default, much less willful default in payment of rent. As the tenant is enjoying the property as the

absolute owner of the same, the question of payment of rent and the alleged default of the same does not arise.

On the side of the landlady, Exs. A-1 to A-12 were marked and the landlady examined herself as P.W. 1. On the said of the tenant, no

documents were filed. The tenant has examined himself as R.W.1.

The learned Rent Controller by his order dated 13-4-1994, on a consideration of the evidence placed before, him, ordered eviction. The

learned Rent Controller has held that the respondent herein is the owner of the premises and that the revision petitioner is not the owner of the

same and that he is not in possession and enjoyment of the same as an absolute owner. The learned Rent Controller also held that the tenant has

committed willful default in paying the rents and as such, he is in arrears of rent from July, 1991, to July, 1992. The learned Rent Controller further

held that the denial of title made by the tenant is not bonafide and that would be sufficient for ordering eviction of the tenant. The tenant preferred

an appeal in M. A. No. 26 of 1994 before the Appellate Authority/Second Addl. District Judge, Pondicherry, and reiterated the same contention.

The learned Appellate Authority, on a consideration of the entire materials placed before him, dismissed the appeal. Aggrieved by the said order,

the tenant has preferred the above revision.

Notice motion was ordered on 28-7-1995. On service of notice, the landlady appeared through her counsel. By consent of both parties, the

main revision itself was taken up for final hearing.

Mr. R. Krishnamoorthy, Learned Counsel for the petitioner/tenant contended that the landlady did not induct the petitioner as a tenant in the

premises in question and that therefore, there is no relationship of landlady and tenant amongst them. It is the contention of the Learned Counsel

that the tenant is continuing in possession and enjoyment therefore, he is not liable to pay any rent to the landlady and as such, the question of

willful default does not arise.

Per contra, Learned Counsel for the landlady contended that the respondent has filed voluminous documents to show that she is the owner of

the property in question and that the tenant has committed default in payment of rent to the landlady, Since the tenant has denied the title of the

landlady, he is liable to be evicted from the premises in question.

I have gone through the pleadings and; he evidence or record and of the orders passed by the authorities below. In my opinion, the landlady has

proved her title to the property in question beyond any doubt. The voluminous documents filed and marked as Exs. A-1 to A-12 clearly establish

her title to the property in question. It is her specific case that the property in question was originally owned by the joint family consisting of herself,

her brothers and sisters and that in a family partition effected on 3-4-1990, it was allotted to her share, which is registered as Document No.

1690/90. The said document has been marked as Ex. A-2. A perusal of Ex, A-2 will clearly show that the property in question has been allotted

to the share of the respondent herein under the partition.

It is the specific case of the landlady that during her absence from Pondicherry, her power of attorney agent and the auditor were collecting the

rent from the tenant and that the tenant has committed default in payment of rent from July, 1991. The landlady has also filed Ex A-1, certified

copy of the title deed in respect of the building standing in her fathers name. The said document was marked through P.W. 1. Ex, A-2, as already

seen, is a partition deed, effected between the landlady and her brothers and sisters. Ex. A-3 is the landlady and her brothers and sisters. Ex A-2.

is the copy of the lawyer''s notice dated 11-1-1992 and Ex. A is the corrigendum dated 26.3.1992. Ex. A 5 is the extract of patta standing in the

name of the landlady. Ex. A-6 is the extract of chitta in respect of the premises in question. Ex, A-8 is the letter dt. 13-10-1992 issued by the

Public Works Department transferring the water policy in the name of the landlady. Exs. A -9 and A-10 are the letters dated 24.11.1992 issued

by the Electricity Department transferring the electricity policy in the name of the landlady. Exs.. A-11 and A-12 are letters written by the tenant,

Exs. A-1 to A-12 were marked through P.W. 1 and proved.

On the side of the tenant, though he claims that, he is enjoying the property as the absolute owner of the same, not a scrap of paper has been

filed to show that the tenant is the owner of the premises. It is the specific case of the tenant that he is in possession and enjoyment of the property

as an absolute owner. There is no acceptable explanation from the tenant for not sending any reply to Exs. A-3 and A-4, the pre-suit notice issued

by the landlady to the tenant asking him to pay the arrears of rent and also deliver vacant possession of the same. As already seen, the landlady has

filed Ex. A-1, registration copy of the partition deed and the documents issued by public authorities for electricity connection, water connection

etc., to show that the property stands in her name, Ex. A-5 is the patta issued by the authorities in the name of the landlady in respect of the

building transferred in her name. Ex. A-6 is the chitta extract standing in the name of the landlady. Likewise, Exs. A-8 to A-10 are standing in the

name of the landlady. A reference to those documents, in my opinion, will clearly establish the ownership of the premises by the landlady. Even

though the tenant claims title to the property in question by virtue of his alleged continuous possession by his father and after him by himself, he has

not produced any record to substantiate such as claim. In my opinion, the denial of title by the tenant is willful. It is also curious to notice that even

though the tenant has pleaded that he has perfected his title to the premises in question by adverse possession no concrete proof is adduced to

prove the said plea. This itself shows that the tenant has no consistent case. At one stage he pleads title in his father and after his death in himself to

the property in question and at later stage, he pleads that he has perfected his title to the premises in question and at later stage, he pleads that he

has perfect his title to the premises in question.

The oral evidence let in by the landlady as P.W. 1 is clearing all respects. Her evidence is clear, cogent and convincing. Nothing has been

elicited in cross-examination to discredit her testimony. The tenant, who examined himself as R.W.1. Gives very many inconsistent version during

his cross-examination. He says that he did not know the names of the other tenants who occupied the building. The evidence of R.W.1 in cross-

examination extracted below would go to prove that the tenant has no consistent stand. My father died in or about 1982-83, My father died at

Karaikal. Lamanative of Karaikal. I did not purchase the premises. My father also did not purchase the premises. I am not paying taxes for the

premises. Patta of premises does not stand in my name. I have not received the electricity demand bill. I do not know as to in whose name the

electricity connection for that building stands. I deny the suggestion that the premises is the ancestral property of the petitioner. I received an

advocate notice from the petitioner only after seeing a publication about the premises in a local newspaper. I did not issue reply to the petitioner''s

notice. I am not having any licence to my business.

The above evidence of R.W.1 in my opinion, is enough and more than sufficient to order eviction of the tenant. The tenant has come forward

with a false case. Though he sets up title in his father and later, in his name and also alternatively, pleads title by adverse profession, in the cross-

examination R. W.1. the tenant says that neither he nor his father did purchase the premises and that he is not paying any tax for the premises and

that there is no document to prove his ownership. It is totally unbelievable that a person in occupation of a premises in his own right is not in

possession of any documentary proof to show that he is paying electricity charges, water charges or taxes to the property in question. The fact of

not sending any reply to the pre-suit notices itself will go to show that the tenant has not denied the relationship of landlord and tenant between the

parties. I, therefore, have no hesitation in holding that the tenant has committed willful default in payment of rent He is also liable to be evicted on

the ground of denial of title, which, in opinion, is mala fide.

It is worthwhile to refer to the decision of our High Court reported in 1991 (II) L.W. 197, wherein it has been held that the denial of title made

by the tenant even during the course of eviction proceedings without any bonafide proof therefore itself would be sufficient ground for the eviction

of the tenant even if the landlady has not has not pleaded for eviction of the tenant on that ground.

In the decision reported in Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) by Lrs., The Supreme Court has observed that the denial of title

in the course of eviction petition constitutes a ground for eviction provided the denial is not bona fide and it is not necessary that in order to

constitute a ground for eviction, the denial of title must be anterior to the filing of the eviction petition. In instant case, the tenant has set up title in

himself even though there is absolute no proof for the same. I therefore, hold that the denial of title of the landlady is mala fide. As pointed out by

the Supreme Court, such a tenant should be evicted from the premises by applying the test laid down by the Supreme Court.

I have a taken a similar view in C.R.P. Nos. 4404 and 4405 of 1987 dated 23.31995 and ordered eviction of the tenant in that case even

though there is omission on the pari of the landlord to amended the petition by including the disclaimer as a ground for eviction. In that case, the

tenants have taken a plea in the counter affidavit filed before the Rent Controller keeping the title to the property in question on one C.T.

Venugopal, a third party to the proceedings. As admitted by the tenants themselves in that case, they have been in occupation of the buildings as

such tenants for the last twenty years and odd and all along they had been paying the rent only to the landlady. In such circumstances. I have

ordered eviction holding that the landlady is entitled to take this plea in the revision itself seeking eviction on the ground of denial of title even

though there is omission on her part to amend the petition by including the said plea as a ground for eviction. I now understand that my decision in

C.R.P. Nos. 4404 and 4405 of 1987 dated 23-3-1995 has been affirmed by the Supreme Court of India and the SLP filed by the tenants has

been rejected.

The decision reported in K. Appa Rao Vs. Maragathammal (I.L.R. 1981 (1) Mad 7 = 93 L.W.681 can also be referred to with advantage. In

that case a Division Bench consisting of M.M. Ismail, C.J, and V. Ratnam, J, (as he then was) held as follows:-

...that proviso merely uses the expression where the tenant denies the title of the landlord''. This is a negative concept. But positively, while denying

the title of the landlord, the tenant may set up title in himself or herself or in a third party. That is not referred to and that is not even necessary for

the purpose of application of the second proviso to Section 10(1). So long as the tenant denies the title of the landlord, it is totally irrelevant, for the

purpose of the applicability of the second proviso to section 10(1) whether he sets up title in himself or in a third party, because admittedly the

language of the second proviso does not impose any restriction that it will apply only to a case where the tenant, while denying the title of the

landlord, sets up title in himself or herself. So long as the tenant has denied the title of the landlord for the applicability of the second proviso to

Section 10(1), it is irrelevant and immaterial, whether, in addition to denying the title of the landlord, the tenant claims title in himself or herself or

sets up title in a third party.

In the present case, there is no controversy that the tenants denied the title of the petitioner only by putting forward the contention that some body

else had become the owner of the property, and to such a situation admittedly the principle of estoppel contemplated by Section 116 of the

Transfer of Property Act will not apply.

The Rent Controller and the Appellate Authority in the instant case have, in my view satisfied themselves that the person seeking eviction is a

landlady, who has prima facie right to receive the rent of the property in question. In order to decide whether the denial of the landlady''s title by

the tenant is bona fide, the Rent Controller necessarily has to go into the tenant''s contention on the issue. As pointed out by the Supreme Court,

the Rent Controller has only to see whether the tenant''s denial of the landlady''s title is bonafide in the circumstances of the case. In this case, the

Rent Controller and the Appellate Authority have reached a conclusion on merits that landlady has title. They also held that the denial of title was

not bona fide. For deciding these issues both the authorities below have, no doubt, also to consider the oral and documentary evidence adduced

by the parties. In my view, the authorities below have on an appreciation of the evidence, both oral and documentary, come to the right conclusion

that the landlady is entitled to an order of eviction. For the reasons mentioned above, I am of the opinion that both the authorities below have

reached the correct conclusion and that this revision by the tenant has to fail. Therefore, the Civil Revision Petition is dismissed. In the

circumstances, however, I make no order as to costs.