M/s. Hussain Lorry Booking Service, Coimbatore and others vs A. Sirajuddin

The respondents in R.C.O.P. No. 93 of 1983 on the file of the Rent Controller (Principal District Munsif), Coimbatore arc the petitioners in this

civil revision petition. The petitioner in the said R.C.O.P. is the respondent in this civil revision petition. For the sake of convenience the parties are

referred to in this order as per the nomenlature given to them in the R.C.O.P.

The petitioner filed an application for eviction against the respondents under Ss. 14(i)(b) and 14(2)(b) of the Tamil Nadu Buildings (Lease and

Rent Control) Act XVIII of 1960, hereinafter called the Act. The case of the petitioner in R.C.O.P. No. 93 of 1983 is as follows:

The first respondent is a registered firm whose present partners are respondents 2 and 3. Formerly the Second respondent and F. Mohamed

Hussain were partners of the firm. After the death of F. Mohamed Hussain, the third respondent herein has become the partner along with the

second respondent in the respondents-firm. The respondents 4 to 9 are the legal heirs of the deceased partners of F. Mohamed Hussain. The

petitioner purchased the petition mentioned property on 19-9-1974 and at the time of purchase it was subject to a usufructuary mortgage deed

dated 14-5-1967 executed by the petitioner''s vendor in favour of one Rahman Shariff, who was in possession of the petitioner mentioned

property as usufructuary mortgagee. The deceased F. Mohamed Hussain was the tenant in respect of the petition mentioned property under the

ususfructuary mortgagee in the first instance and later on after the redemption of the usufructuary mortgage the said Mohamed Hussain became the

tenant under the petitioner. Earlier the petitioner filed an application for eviction against the said F. Mohamed Husain in R.C.O.P. No. 327 of 1975

on the file of the Rent Controller, Coimbatore on the ground that the petitioner required the petition mentioned property for his own use and for the

purpose of demolition and reconstruction. The respondent in R.C.O.P. No. 327 of 1975 contested the application, but, finally submitted (o an

order of eviction and took time to vacate the building. Before the petitioner could execute the order of eviction obtained by him in R.C.O.P. No.

327 of 1975 the respondents 1 to 3 filed a suit O.S. No. 518 of 1979 on the file of the District Munsif''s Court, Coimbatore for declaration that

the first respondent firm was the tenant of the petition mentioned property and the order of eviction, obtained against Mohamed Hussain in his

individual capacity in R.C.O.P. No. 327 of 1975 was not binding on respondents 1 to 3 and prayed for the relief of injunction. In the suit the

respondents 1 to 3 also raised the contentions that what was taken on lease was only a site and not the building. The civil court negatived the plea

of the respondents 1 to 3 that the origilal lease was in respect of the site alone, but hold that the lease was in respect of both the site as well as the

building. It was further held in O.S. No. 518 of 1979 that the tenant of the petition mentioned property is the first respondent-firm and not the

individual, Mohamed/Hussain. As per the decision of the civil court in O.S. No. 518 of 1979 the petitioner is a landlord and the first respondent-

firm and its partners are tenants with regard to the petition mentioned premises. The petition mentioned building is an old and substantial one. The

petitioner purchased the preperty primarily for the site value with a view to put up thereat a new structure after pulling down the existing structure

for a better and profitable investment and increased return on such investment.

The respondents resisted the application for eviction contending as follows; The respondents are the owners of the superstructure described in

the petition and the petitioner is only the owner of the vacant site and that the first respondent is entitled to the benefits of the Tamil Nadu City

Tenants'' Protection Act. As there is a bena fide dispute regarding the title to the superstructure, the application for eviction filed before the Rent

Controller under the provisions of the Act is not maintainable. The petition mentioned vacant site was leased out by the petitioner''s predecessor-

in-title in the year 1955 to one Arunchalam Pillai and one Kasim Sahib, who are the predecessors-in-title of the first respondent-firm having put up

superstructure therein are in continuous possession as tenants of the demised vacant site and as owners of the superstructure. The building in

question is in good condition and it does not require immediate demolition for reconstruction and the petitioner''s requirement for demolition and

reconstruction is not bona fide.

The Rent Controller found that the petitioner has title to the superstructure; that the respondents have not proved that they are the owners of the

superstructure and that the lease is in respect of both the land and the building and that the petition for eviction filed before the Rent Controller is

maintainable. The Rent Controller further found that the petitioner''s requirement of the petition mentioned building for demolition and

reconstruction is bona fide and consequently passed an order of eviction. As against the order of the Rent Controller the respondents filed an

appeal. R.C.A. No. 89 of 1988 before the Appellate Authority. The Appellate Authority confirmed the findings of the Rent Controller that the

petitioner has title to both the vacant land as well as to the building and that the respondent''s denial of the petitioner''s title to the superstructure is

not bona fide and therefore, the petition for eviction filed under the provisions of the Act is maintainable. The Appellate Authority also confirmed

the finding of the Rent Controller that the petitioner''s requirement of the petition mentioned building for demolition and reconstruction is bona fide.

Consequently the Appellate Authority dismissed the Rent Control Appeal. Aggrieved by the judgment of the Appellate Authority the respondents

have filed the present civil revision petition.

Mr. K. Mohanram, learned counsel for the respondents would contend that the petition for eviction was filed by the petitioner on the ground

that the petition mentioned building is required for demolition and reconstruction and that his requirement is bone fide. Recently, the Supreme Court

in M/ s. P. ORR & Sons (P) Ltd. v. M/s. Associated Publishers (Madras) Ltd., 1990 TLNJ 17 has held that the landlord, to obtain as order of

eviction and reconstruction must satisfy one assential condition viz., that the condition of the building is such that it required immediate demolition

for reconstruction and in this case, there is absolutedly no evidence to show that the condition of the building is such that it required immediate

demolition for reconstruction. There is force in the contention of the learned counsel for the respondents. In the petition in R.C.O.P. No. 93 of

1983 it is merely stated that the building is an old and unsubstantial one and it is just a shed resting on. wooden poles, and that the petitioner

purechased the property for the locality value and with a view to out up a new structure after pulling down the existing structure for better and

profitable investment and increased return of such investment. In the counter the respondents have specifically stated that the building in question is

in good condition and it does not require any immediate demolition for reconstruction. PW 1 in his evidence has stated that the building is old one

and if the building is demolished and a new building is constructed it will fetch good return. In his evidence PW 1 has admitted that he saw the

petition mentioned building only in 1974 and thereafter he did not inspect the same. He has further admitted is his evidence that he is not in a

position. There is absolutely no evidence in this case to show that the condition of the building is such that it requires immediate demolition for

reconstruction. The petitioner has not made out a case for eviction on the ground that the petitioner''s requirment of the petition mentioned building

for demolition and reconstruction is bona fide.

Mr. Jamal Mohaned, learned counsel for the petitioner would submit that even assuming that the petitioner has not made out a case for eviction

on the ground that the petitioner''s requirement of the building for demolition and reconstruction is bona fide, the order of eviction passed by the

Rent Controller and the Appellate Authority can be sustained on the ground that the respondents'' denial of the petitioner''s title to the

superstructure is not bona fide. Mr. K. Mohanram, on the other hand would contend that the respondents have denied the title of the petitioner to

the superstructure in (he petition mentioned premises even in the suit, O.S. No. 518 of 1979 filed by the respondents agaisnt the petitioner; the

petitioner has not filed the petition for eviction in the present case on the ground that the respondents'' denial of the petitioner''s title to the

superstructure is not bona fide, though that ground was available to the petitioner at the time of filing the present petition for eviction; when the

petitioner has failed to claim an order of eviction in the present R.C.O.P. on the ground that the respondents'' denial of the petitioner''s title to the

superstructure is wilful the petitioner must be deemed to have waived his right to claim eviction on the ground that the respondents wilfully denied

the petitioner''s title to the superstructure. The learned counsel for the respondents further contended that an order of eviction cannot be ordered

on a ground which was not mentioned in the landlord''s application for eviction. In support of his contention the learned counsel relied on the

decision reported in In Re: P. Venkatachala Thevar; In Re: M.V. Sivasankara Thevar, . I am not inclined to accept the contention of the learned

counsel for the respondents. In the present case the order of eviction passed by the Rent Controller and the appellate Authority is sought to be

sustained not on the ground that the respondents denied the title of the petitioner to the superstructure in the earlier suit ground that the respondents

desied the petitioner''s title to the superstructure in the counter filed in the courses of the present proceedings and, therefore, the question of the

petitioner weiving his right to claim eviction on the ground that the respondents wilfully denied the title of the petitioner to the superstructure does

not arise in this case.

In Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) by Lrs., the Supreme Court has held that a 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 the title must be anterior to the filing of the eviction petition. The Supreme Court in the above mentioned decision further held that

(Para 5) :

To insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent

suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit

for ejectment of the tenant on the ground of forfeiture entitled by the tenant''s denial of his character as a tenant in the written statement"".

In view of the decision of the Supreme Court referred above, the principles laid down in In Re: P. Venkatachala Thevar; In Re: M.V. Sivasankara

Thevar, cannot be applied to the facts of the present case.

The evidence in this case discloses that the petitioner has title to both the land as well as to the superstructure of the petition mentioned premises.

Ex A1 is the judgment in O.S. No. 518 of 1979 on the file of the District Munsif, Coimbalore. O.S. No. 518 of 1979 is the suit filed by the first

respondent and the partners of the first respondent against the petitioner for permanent injunction. Issue No. 2 framed in the said suit runs as

follows:

Whether the defendant is the owner of the superstructure in the suit properties?

On the basis of the evidence, the civil court in Ex. A-1 in O.S. No. 518 of 1979 rendered the following findings.

I therefore hold under this issue that the defendant in the owner of the superstructure in the suit property. This issue is answered accordingly.

Further, Ex. A-52, the letter written by the first respondent-firm to the petitioner and Exs. A-55 and A-56 notices sent by one of the partners of

the first respondent to the petitioner go to show that the respondents have admitted that they arc Ihe tenants in respect of the land as well as the

building under th, petitioner. In the counter filed by in the present proceedings the respondents have denied the petitioner''s title to the

superstructure in spite of the finding of the civil court in O.S. No. 518 of 1979 that the petitioner has title to the superstructure. However, the

respondents have not let in any evidence to substantiate their case putforth in the counter that they constructed the building and that the building

belong to them. In these circumstanecs, both the Rent Controller as well as the Appellate Authority found that the respondents'' denial of the

petitioner''s title to the building is not bona fide. No doubt, the above findings of the Kent Controller and Ihe Appellate Authority were rendered

for Coming to the conclusion that the petition for eviction filed by the petitioner against the respondents under the provisions of the Act is

maintainable. However as pointed out by the Supreme Court in Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) by Lrs., the denial of the

title in the course of eviction proceedings constitutes a ground for eviction when it is proved that such denial is not bona fide. Therefore, the

petitioner is entitled to art order if eviction in the present case on the ground that the respondents denied the title of the petitioner to the petition

mentioned building in the course of the eviction proceedings and such denial of the petitioner''s title by the respondents is not bona fide. In these

circumstances, the order of eviction passed by the Rent Controller and the Appellant Authority can be sustained though not on the ground that the

petitioner''s requirement of the petition mentioned building for demolition and reconstruction is fide but on the ground that the respondents in the

course of the eviction proceedings denied the title of the petitioner to the superstructure of the petition mentioned premises and such denial is not

bona fide.

In the result, the civil revision petition fails and is dismissed. No costs.

Mr. K. Moharam, counsel for the tenant requests six months time for vacating the premises on the ground that the tenant is carryuing on transport

business in the petition mentioned premises. Taking into consideration the facts and circumstances of the case and the further fact that the tenant is

carrying on transport business in the petition mentioned premises, the tenant is granted four months for vacating the premises on condition that the

tenant files an affidavit within four weeks from today before this Court undertaking to vacate the premises after the expiry of the said period of four

months.

Petition dismissed.