N.A.S. Ansari vs M. Sarangan

S.S. Subramani, J.—This revision is by the landlord.

Petitioner succeeded before the Rent Controller. But the order was reversed by the Appellate Authority. Hence, the revision.

In the eviction petition, landlord wanted eviction of the tenant on the ground that he has denied his title without any bona fides and also

committed wilful default in paying the rent, and that the bona fide requires the building by way of additional accommodation.

It is not disputed by the tenant that he has executed Ex. A-7 lease deed, which is a registered document. He has agreed to pay a sum of Rs. 75

per mensem as rent. When the rent was not paid as agreed, notice was issued, for which a reply was sent by the respondent herein, denying the

title of the landlord. It is averred in the eviction petition that the denial of title is lacking in good faith and the person referred to in the reply notice

has no right in the building and that the respondent has come into possession only on the basis of Ex. A-7.

In the counter affidavit filed by the respondent herein, he has stated that the property belongs to one K.C. Ramanatha Iyer and his family, now

settled at Bombay, that their agent was one Thangasabarathina Deekshithar, that the respondent took the property from the said Deekshithar on

1.4.1979 on a monthly rental of Rs. 20 for the first two years, and at Rs. 25 for the later years, and that he was also directed to pay the municipal

taxes. According to the respondent (tenant), there was no building at the time when he took the same on lease, and that the building which was

there already had completely dilapidated and there was no superstructure at all, and it was only a vacant site. He has said that after he took the

property on lease, he put up a new superstructure now standing in the property by spending more than Rs. 10,000. It is said that in or about

August, 1980, the petitioner herein came along with certain rowdy elements and told the respondent that the property belongs to him and that

either the respondent should vacate the property or attorn to him as tenant. When the respondent told him about the tenancy with Ramanatha Iyer,

the petitioner threatened that unless the respondent executed a rent deed and attorns to him he will be thrown out of the property. Therefore, due

to fear of life and also to avoid litigation, violence and unnecessary disputes and also to avoid waste of money invested by him in the improvement

of the property, he executed Ex. A-7 rent deed out of compulsion and coercion. According to the respondent, he has been enjoying the entire

property with all the trees thereon. He further says that he is prepared to attorn the tenancy provided the petitioner herein proves his title through

court of law, in the presence of other claimants. He wants the petition to be dismissed.

The Rent Control Court, after taking evidence, came to the conclusion that the denial of title is not bona fide, and the respondent herein, after

having executed Ex. A-7, is estopped from denying the title of the petitioner. While coming to such a conclusion, the court also held that the

building was constructed by the petitioner, and the tax was also paid by the revision petitioner. It also came to the conclusion that even though the

site on which the superstructure now stands belonged to Ramanatha Iyer as alleged by the respondent, that will not stand in the way of the revision

petitioner seeking eviction, if, as per Ex. A-7, landlord and tenant relationship is created. It also took into consideration the definitions of ''landlord''

and ''tenant'' as provided in the Rent Control Act. In that view of the matter, the Rent Controller came to the definite conclusion that the tenant is

liable to be evicted. It also found that the rent has also not been paid eversince Ex. A-7. Eviction was ordered, giving some time to the tenant for

vacating the premises.

On appeal by the tenant, the Appellate Authority held that the denial of title is bona fide. For the said purpose, the Appellate Authority was of

the view that the revision petitioner has no absolute title over the property, and there is some inconsistency in regard to the description of the

building. It also came to the conclusion that the tenant might have executed Ex. A-7 under pressure. For entering such a finding the Appellate

Authority was influenced by the fact that the revision petitioner has no absolute title over the land. Consequently the petition for eviction was

dismissed. It is against the judgment of the Appellate Authority, the landlord has preferred this revision.

Under Rent Control Act, if the tenant puts forward a contention denying the title of the landlord and the Rent Controller finds that contention as

bona fide, then the remedy of the landlord is only to seek eviction through civil court. But there must be a finding that the denial of title is bona fide.

What is the scope of that investigation?

A similar question came for consideration under the Kerala Buildings (Lease and Rent Control) Act and the decision thereon is reported in

Joseph v. Thomas (1987) 2 K.L.T. 1029. The section under the Kerala Act is also similar as our Act. In paragraph 5 of the said decision, a

learned Judge of the Kerala High Court considered the scope of the investigation and held thus:

Learned Counsel for the respondent-tenant contended that if the Rent Control Court is satisfied that the denial is made honestly, and not with the

oblique idea to protract the dispute, the Rent Control Court has to record a finding. ""Bona fide"" (or good faith) is a familiar term in legal parlance.

Honestly, of course, is one of the attributes of good faith, but that is not enough. In certain contexts that which is done with due care and attention

is said to have been done in good faith. But the word ""bonafide"", when used in relation to jurisdictional permutations, has a wider import and a

higher degree than the other two attributes. The aspect of bona fides in the context in which it is mentioned in the proviso may be referable to the

state of mind of the tenant. But when a court has to come to a finding regarding such state of mind, there must be objective satisfaction for court

that the tenant had that state of mind. The court, whose jurisdiction stands ousted on a finding that a certain plea or assertion made by a party is

bona fide, must be in a position to hold that the plea is based on a very fair and reasonable supposition. In holding so, the court must have the

satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea. The court must be in a position to say

that the chances of the plea being upheld by the civil court are fairly on the higher side. Then alone the Rent Control Court is justified in finding that

the denial of landlord''s title is bona fide. In White v. Feast L.R. 7 Q.B. 353, Cockburn, C.J. met the problem of deciding about summary

jurisdiction of magistrates under a certain statute. When defendant set up a case of bona fide claim of right, his Lordship observed that the

defendant is not entitled to call upon such magistrates to hold their hands ""unless he gives them sufficient evidence to convince them that he acted

under a fair and reasonable supposition that he had a right to do the act, although he may have honestly believed that he was justified in doing the

act (Italics supplied as in original) - Lord Greene, M.R. In re. Welsh Brick Industries Limited (1946) 2 All E.R. 197, did not think that there is any

difference between the words ""bona fide disputed and the words ""disputed on some substantial grounds"". The observation was made in the

background of a contention that a petitioning creditor had no locus standi in winding up proceedings, to present a petition because his alleged debt

was the subject of a bonafide dispute, and that the country court judge should have dismissed the petition on the ground that winding up

proceedings are not the appropriate procedure for dealing with disputed debits. The aforesaid observations lend support to the view which I take

that there cannot be a finding that tenant''s denial of title is bona fide unless the denial is based on a very fair and reasonable supposition of the plea

on the strength of strong and substantial materials.

The said decision was approved by a Division Bench of that High Court in judgment reported in (1995) 1 Ker. L.J. 212. The judgment is by

Dhinakar, J., a former Judge of this Court. The tests laid down by their Lordships were that the court whose jurisdiction stands ousted must have

the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and the chances of

the plea being upheld by the civil court must be fairly on the higher side.

Ex. A-7 is admittedly executed by the respondent herein. It is a registered document. The genuineness of that document is not disputed. It is

challenged only on the ground of fraud and coercion. Pleadings regarding the same are vague. I am not for a moment saying that in rent control

proceedings, we should look into the pleadings as in a civil suit. I am also not saying that all particulars of fraud and undue influence or coercion

must be pleaded. Atleast there must be some foundation to come to the conclusion that the document is not valid. The only reason that is

mentioned for invalidating that document (Ex. A-7) is stated in paragraph 4 of the counter. It is stated therein that the petitioner in or about August,

1980 came along with some rowdy elements and told the respondent that the property belongs to him and that either the respondent should vacate

the property or attorn to him as tenant. The respondent is not definite even about the date. It is thereafter the registered rent deed was executed.

From the pleadings it is clear that the threat and the execution of the deed are not simultaneous. Nothing prevented the respondent from taking

protection, if, in fact, he thought that he will be forced to execute such a deed. The respondent has not stated in his counter the date on which the

petitioner or the rowdy elements came to the property. Further down he says that to avoid dislocations, litigation, violence and unnecessary

disputes and to avoid waste of money invested by him in the improvement of the property and out of pure compulsion and coercion, executed the

rent deed alleged in the petition. Further down, he says that he verified with Deekshithar and found that the petitioner has absolutely no title to the

property and it was only Ramanatha Iyer and his family who were the actual owners of the property. It is further stated that the rent deed alleged in

the petition was brought about under vitiating circumstances of fraud, misrepresentation and coercion.

I can say that these three grounds are inconsistent and cannot go together.

The petitioner herein has filed documents to show that he is the owner of the building. Ex. A-1 is a licence for putting up construction in the

property. The other document relates to property tax in respect of the building. In those documents, it is stated that the petitioner is the owner of

the building though the ownership of the land is different. Here we are concerned only with the question as to who prima facie constructed the

building.

It is the case of the petitioner that his father was in possession of the property for the last more than 45 years, and on his father''s death, he was

occupying the same. According to him, before the respondent came into possession, other tenants were also occupying the same building.

In these circumstances, it is also better to consider the defence taken by the respondent. It is said that he has taken the land on lease on

1.4.1979 and thereafter has put up a structure in the property. According to the respondent, the building came into existence only after 1.4.1979.

Exs. A-2 to A-5 show that the building was in existence long prior to 1979 and the ownership stands in the name of the revision petitioner. The

Appellate Authority also found that in the assessment receipts, the name of the petitioner is shown as the owner of the building. But the same was

discarded on the ground that it does not reflect absolute ownership. It also found fault with the revision petitioner by stating that he has not

produced any document to show that the petitioner and his father were enjoying the property for the last 40 years. The Appellate Authority went

wrong in taking into consideration the above facts for the reason that Ex. A-7 is admittedly executed by the respondent. It is for him to prove that

that document has not come into existence, or that the document has no legal validity. For the said purpose, we have only the interested testimony

of the respondent. The same cannot be believed, since it is full of inconsistencies.

As stated earlier, the Appellate Authority was also of the view that the petitioner will have to prove absolute ownership of the building and only

then he can get an order of eviction. The said approach is patently illegal. The Appellate Authority has not taken into consideration the definition of

''landlord'' and ''tenant'' under the Rent Control Act. A reading of the definition shows that any person who is entitled to receive rent is a landlord.

It has nothing to do with ownership. Tenant is defined only as a person who is liable to pay rent. It also does not say that the person in occupation

must be a person who came into possession from an absolute owner. The entire approach by the Appellate Authority was illegal.

The Appellate Authority has also taken note of the misdescription of the building. It is seen that in one of the documents executed by the

revision petitioner in favour of his sister, the building has been defined as a thatched roof. But, admittedly, the scheduled building is having a tiled

roof. The Appellate Authority took into account that inconsistency to hold against the landlord, saying-that if the landlord was sure about the

building, the misdescription would not have occurred in the document. The said approach is also absurd. If the Appellate Authority had fully taken

into consideration the objections raised by the tenant, he would not have taken into account this aspect of misdescription of property. The tenant

has no case that there is any misdescription. The parties are at issue regarding a particular building, regarding the identity of which there is no is

dispute. In that view, I do not think the finding of the Appellate Authority can be supported by any reason. Once it is held that a landlord and

tenant relationship is created under Ex. A-7, the principle of estoppel u/s 116 of the Evidence Act applies and consequently, the respondent is

barred from disputing the title of the revision petitioner.

On the basis of the available materials, prima facie I am of view that even if a civil suit is filed, the possibility of the tenant succeeding on the

basis of the above materials is remote. I do not find that the respondent has made out a strong case or put forth substantial or sufficient material to

support the plea of denial of title of the petitioner herein.

learned Counsel for the respondent has relied on two decisions of the Supreme Court, namely, Tej Bhan Madan Vs. II Additional District

Judge and Others, and S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, .

In Tej Bhan Madan Vs. II Additional District Judge and Others, , their Lordships have considered the scope of Section 116 of the Evidence

Act, and in particular, their Lordships approved the passage of Spencer Bower and Turner on Estoppel which says thus:

Where a tenant, with full knowledge of the facts, either expressly in writing, or impliedly by acts, such as the payment of rent, attorns tenant to a

person other than his original landlord or one who is claiming the estate or interest of such original landlord by assignment, succession, or

otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned. But, here too, it is open to the party

sought to be estopped to explain away the attornment, and so escape the estoppel to which he would otherwise be subject, by proof that, when he

so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if

such error or ignorance was due to the fraud of that person.

(Italics supplied as in original)

According to me, the said decision cannot help the respondent in this case, for, he has not adduced any evidence in support of his plea. If only he

has proved that he has executed the document under a mistake or under the circumstances pleaded in paragraph 4 of his counter, he can succeed.

But evidence on that aspect is totally lacking.

In S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , their Lordships have held that if a party has

committed fraud, he is not entitled to any relief, and that ''fraud'' can also be by withholding production of a vital document I do not think that

decision has any relevancy to the facts of this case. So far as this case is concerned, the revision petitioner has come to court on the allegation that

the respondent herein is a tenant. He has also filed the relevant documents before court. The only question that has to be considered in this case is,

what is the relationship between the parties. The question of title is completely alien to this proceeding, especially when it is a summary proceeding

under the Rent Control Act. In the decision reported in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, ,

their Lordships held that a decree was obtained by the plaintiff in that case without production of a document whereby he got title to the property. I

have already said that for deciding the question whether there is landlord and tenant relationship under the Act between the parties, title need not

be considered. I am, therefore, of the view that the said decision has no application to the facts of this case.

Let us see the conduct of the respondent also immediately after Ex. A-7. If some rowdy elements coerce the respondent and get a document

executed, in the normal course of events, atleast the respondent would have issued a notice stating that the document is invalid and that he has not

executed the document with a free mind. He also ought to have taken some steps either through police or through court for invalidating that

document. In this case, he takes a defence long after he gets a notice of eviction.

If we go by the objection, it is clear that the respondent is aware as to who is the owner. It is not something that he came to know subsequent

to the. execution of Ex. A-7. He say s that, after the execution of Ex. A-7 he again went and ascertained with the agent that Ramanatha Iyer and

his family are the owners, who are said to be in Bombay. Their evidence is also totally lacking in this case. Even though it is now 15 years since the

eviction petition is filed, there is nothing to show that the so-called rival claimants have taken any steps to have their title declared. By this time, they

also might have known that the revision petitioner is exercising ownership over the property.

When the respondent was examined, he said that he has not seen any documents of title of Ramanatha Iyer, or the members of his family. But

later on he wanted a photo copy of a title deed to be marked, and the same was marked as Ex. B-29, subject to proof. No attempt was made by

the respondent either to get the original or to produce a certified copy or examine any witness who would have been in custody of the original. On

the side of the respondent, there is no evidence to show that the title is with any other person. It is in the above circumstances, we have to consider

whether the plea of the respondent can be upheld in a court of law. The Rent Controller who had the opportunity to see the witnesses, has held

that the defence cannot be accepted for any reason. The Appellate Authority reversed the same on superficial grounds.

In the result, I set aside the judgment of the Appellate Authority and allow this revision petition with costs throughout. I hold that the denial of

title by the respondent is not bona fide. Admittedly he has not paid rent after the execution of Ex. A-7. The nonpayment of rent is wilful, is evident

from the averments in the objection. The order of the Rent Controller is restored.