Naseema Begum vs Mohamed Akbar Badsha

A.C. Arumugaperumal Adityan, J.—This revision has been preferred against the concurrent findings of the learned Rent Controller (XV

Judge) Court of Small Causes, Chennai in R.C.O.P. No. 298 of 2006 which was confirmed by the learned Rent Control Appellate Authority (VIII

Judge,) Court of Small Causes, Chennai in R.C.A. No. 744 of 2006. The second respondent in R.C.O.P. No. 298 of 2006 is the revision

petitioner herein. R.C.O.P. No. 298 of 2006 was filed by one Mohamed Akbar Badsha against one Noorul Islam and Naseema Begum/revision

petitioner herein u/s 10(2)(ii)(a) of Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as ""the Act"").

According to the landlord/respondent herein, the petition schedule building at Door No. 40/42, Venkatesa Naicken First Street, Mount Road,

Chennai-2 was leased out by the petitioner Mohamed Akbar Badsha to Noorul Islam for rent. It is the case of the petitioner that the first

respondent Noorul Islam had sub let the said premises to the second respondent Naseema Begum, who is none other then his own sister. The said

petition was resisted by Naseema Begum/revision petitioner/second respondent in R.C.O.P. No. 298 of 2006 on the ground that even in an earlier

petition filed by the landlord Mohamed Akbar Badsha in R.C.O.P. No. 501 of 2002 which was filed against her mother Fathima Bi and her son

Noorul Islam(first respondent in R.C.O.P. No. 298/2006) for eviction and during the pendency of R.C.O.P. No. 501 of 2002, the mother of

Noorul Islam and Naseema Begum viz., Mrs. Fathima Bi died on 7.12.2002 and the second respondent Mrs. Naseema Begum and Mrs. Haseena

were impleaded as legal representatives of the deceased Fathima Bi in R.C.O.P. No. 501 of 2002 and on contest, the said R.C.O.P. No. 501 of

2002 was dismissed. Against the findings in R.C.O.P. No. 501 of 2002, an appeal in R.C.A. No. 116 of 2004 was preferred by the landlord

Mohamed Akbar Badsha and the said R.C.A. No. 116 of 2004 was also dismissed on 13.11.2007. After the dismissal of the said R.C.A. No.

116 of 2004, the landlord Mohamed Akbar Badsha had filed the present R.C.O.P. No. 298 of 2006 claiming that the first respondent let out the

premises to the second respondent without the permission of the landlord and that he is liable to be evicted u/s 10(2)(ii)(a) of the Act which cannot

be sustainable.

Before the Rent Controller, the landlord has examined himself as P.W. 1 and Exs. P1 to P4 were marked. The second respondent Naseema

Begum had examined herself as R.W. 1 and Ex R1 was marked on her side. After going through the evidence and after hearing the submissions

made by both counsels, the learned Rent Controller has allowed the R.C.O.P. giving two months time to the tenant to vacate and hand over the

vacant possession to the landlord.Aggrieved by the said order, the second respondent/revision petitioner has preferred an appeal in RCA No. 744

of 2006 before the Rent Control Appellate Authority, who had also dismissed the appeal confirming the order passed in R.C.O.P, which

necessitated the second respondent in R.C.O.P. No. 298 of 2006 to prefer this revision.

The only point to be decided in this revision is that whether the sub tenancy in favour of the second respondent by the first respondent Noorul

Islam has been proved beyond any doubt. The learned Rent Controller relying on the evidence of R.W. 1 as to the effect that after her marriage,

she went and lived with her husband in her father-in-law''s house and after her mother-in-law''s death, she came to the petition schedule building,

since the first respondent had left for abroad and his wife had also left for her mother''s house for delivery. She would admit that her ration card

stands for door No. 40/42 at Venkatesa Naicken First Street, Second lane, Chennai-2. The learned Rent Control Appellate Authority relying on

the evidence of R.W. 1 in R.C.O.P/revision petitioner herein as to the effect that after the marriage, the revision petitioner had left for her mother-

in-law''s house at Door No. 43 and after her demise, she came to the petition schedule building since the first respondent''s wife had left for her

mother''s house for delivery. Only on the basis of the said piece of evidence as to the fact that the second respondent is residing in the petition

schedule building, both the Courts below have come to a conclusion that the first respondent viz., Noorul Islam had sub let the premises to the

second respondent Naseema Begum/revision petitioner herein.

The learned Counsel appearing for the revision petitioner would contend that even in the earlier R.C.O.P. No. 501 of 2002, the second

respondent has been impleaded as the legal representative of Fathima Bi, the first respondent therein as her daughter. Along with her, the first

respondent and other two sisters of the second respondents have also been impleaded as Legal representatives of the deceased Fathima Bi in

R.C.O.P. No. 501/2002. R.C.O.P. No. 501/2002 was also filed by the same landlord Mohamed Akbar Badsha in respect of the same building

on the ground of owner''s occupation. But the said R.C.O.P. was dismissed and an appeal preferred against the order in R.C.O.P. No. 501/2002

under R.C.A. No. 116 of 2004 was also dismissed. The learned Counsel has relied on the said Judgment in R.C.O.P. No. 501 of 2002 to show

that both the first respondent and the second respondent are the children of the deceased Fathima Bi and that they are brother and sister

respectively.

The learned Counsel appearing for the respondent relying on a decision reported in M.V. Swami v. Ameer Basha 1985 (1) M.L.J. 53 would

contend that if it is proved that the person to whom the premises was let out was not residing there and in his place if it is shown that another

person is living, then the inference will be that the tenant had sub let the premises without the permission of the landlord and on that score the tenant

is liable to be evicted u/s 10(2)(ii)(a) of the Act. The facts of the said case in brief relevant for the purpose of deciding this revision are that the

alleged sub tenant second respondent, according to the landlord therein was conducting a type-writing institute in the premises let out to the

tenant/first respondent. There was evidence like name board of the type writing Institute coupled with the admission of the petitioner that the

licence for the institute stands in the name of the wife of the second respondent and the attachment proceedings under ExP5 clearly established that

the premises let out to the petitioner was under the occupation of the second respondent herein. So in that case, there was material to show that

the second respondent was running a type writing institute in the premises which was originally let out to the first respondent. Since the sub-letting

has been established by overwhelming evidence, the learned Judge of this Court has held that the tenant is liable to be evicted u/s 10(2)(ii)(a) of the

Act. Further it is pertinent to note that the second respondent in that case is no way related to the first respondent/original tenant. But in the case on

hand, the first respondent and the second respondent are own brother and sister respectively and their mother was Mrs. Fathima Bi, the first

respondent in R.C.O.P. No. 501 of 2002. It is in evidence that the first respondent/revision petitioner''s brother viz., Noornul Islam is in abroad

and his wife had gone to her mother''s house for delivery. It is not in evidence that the revision petitioner/second respondent in R.C.O.P. No. 298

of 2006 is residing in the petition schedule building with her husband. Admittedly, her husband''s house is at Door No. 43/3, Venkatesa Naicken

First Street, Mount Road, Chennai-2. The petition schedule building is door No. 40/42 in the same Venkatesa Naicken First street, Mount Road,

Chennai-2.

The other dictum in Rupalochani Saraswathiammal and Others Vs. Sundaranarayanan and Others, relied on by the learned Counsel appearing

for the respondent is also of no use to the respondent because there was evidence to show that the building in question was let out to the tenant for

non residential purpose i.e., to run a x-ray clinic. But the tenant had sub let the premises to the third parties for residential purpose. Only on that

ground, eviction was ordered u/s 10(2)(ii)(a) of the Act. But the case on hand, the property was let out to the first respondent for residential

purpose and there was no material to show that the second respondent, who is none other than the sister of the first respondent is a tenant under

the first respondent and who was put in occupation of the petition schedule building without the permission of the landlord.

The learned Counsel appearing for the revision petitioner relying on a decision reported in V. Venkatarama Chettiar Vs. M. Duraiswami

Mudaliar and Co., by Managing Partner Rathnavelu Mudaliar, and contended that an order of eviction under sub letting shall be passed only if the

sub letting is established beyond any reasonable doubt. The exact observation in the said Judgment runs as follows:

It will be seen from the record that on the date when the application for eviction was filed admittedly the respondent was not the owner of any

business premises in Madras City. It is alleged that he had entered into an agreement for purchasing the building in which he is now carrying on his

business of printer and publisher at the time when he filed the application for eviction. The date when he filed the application for eviction was 21st

November 1960. The date of agreement of purchase was 11th October, 1960. The sale deed was actually obtained on 26th November 1960.

The order of eviction was passed sometime after 26th November 1960. Mr. Venkatarama Iyer''s contention is that before the Controller could

order eviction of a tenant at the instance of a landlord, who alleged that he did not own any non-residential building of his own in the City of

Madras for carrying on his business, the Controller ought to have been satisfied on the date when he passed the order of eviction that that

condition was continued to be fulfilled by the petitioner. The point is not covered by any specific provision in the Madras Buildings (Lease and

Rent Control) Act. The Section merely speaks of a right of a landlord to apply for eviction on this ground and in defining this right it merely reads

as though he was entitled to this right provided he did not own a building of his own on the date when he applied to the Controller for eviction. The

requirement as to bona fides, Mr. Venkatarama Iyer''s contention was implied that this condition must continue to exist right down to the date

when the order of eviction was passed.

Relying on the above said decision, the learned Counsel appearing for the revision petitioner would contend that there is no bonafide on the part of

the landlord. The landlord''s intention is to get possession in one way or other. Having failed in the previous attempt in R.C.O.P. No. 501 of 2002,

the landlord has come forward with the R.C.O.P. 298 of 2006 with a frivolous motive. It is a settled law that while exercising the power of

revision, this Court normally will not interfere with concurrent findings of the Courts below. But if it is proved that the findings of the learned Rent

Control Appellate Authority is perverse in nature and not based on any acceptable evidence then this Court has got every power to interfere with

the concurrent findings too. Since there is no material to show that the revision petitioner is in occupation of the petition schedule building as a sub

tenant, this Court has necessarily to interfere with the findings of the learned Rent Control Appellate Authority in R.C.A. No. 744 of 2006.

In fine, this revision petition is allowed and the Judgment in R.C.A. No. 744 of 2006 on the file of VIII Judge, Court of Small Causes,/Rent

Control Appellate Authority, Chennai is hereby set aside and the R.C.O.P. No. 298 of 2006 on the file of XV Judge, Court of Small Causes/Rent

Controller, Chennai is hereby dismissed. The parties are directed to bear their own costs.