R. Ranganayaki Ammal vs Namagiri Venkataraman

Ratnam, J.—This revision petition has been preferred against the order of the authorities below directing the eviction of the petitioner from

the premises in her occupation, on an application taken out in that regard by the respondent herein, under Sections 1O(2)(1), 10(3)(a)(i) and 10(2)

(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act 18 of 1960 as amended by Act 23 of 1973)(hereinafter referred to as

''the Act'').

Briefly stated, the case of the respondent in the eviction petition R.C.O.P. No. 3606 of 1981 filed by her, is as follows: The respondent is the

owner and landlord of the premises bearing door No. 1, (Old door No. 36), First Main Road, Raja Annamalaipuram, Madras-28 and the

petitioner is a tenant on a monthly rental of Rs. 150 the tenancy being reckoned according to English calendar month. The respondent stated that

the petitioner failed and neglected to pay the rent for the period 1.3.1976 to 20.6.1981 and such non-payment amounted to wilful default in the

payment of the rents meriting the passing of an order for eviction against the petitioner. In addition, the respondent stated that her husband

Venkataraman, who was in Tamil Nadu Government Service, retired in March, 1979 and decided to settle in Madras along with the other

members of his family and as the respondent did not possess any other residential building of her own in Madras, she required the premises in the

occupation of the petitioner, for her own occupation. The respondent also stated that in response to a notice sent by her on 9.7.1979, attributing

wilful default to the petitioner and also informing her about her need for occupying the residential house, the petitioner had sent a reply on

20.7.1979, denying the title of the respondent and such denial was wilful and not bona fide, which would also justify the passing of an order for

eviction against the petitioner. In the counter filed by the petitioner, she put forward the plea that there was no relationship of landlord and tenant

between the respondent and herself. A further plea was also raised that the petitioner had instituted a suit for specific performance of an agreement

of sale in respect of the property in her occupation, in O.S. No. 2155 of 1981, City Civil Court, Madras, and the respondent had also been

impleaded as a party to that suit owing to a fraud played for defeating the rights of the petitioner by stealthily dealing with Raja Annamalaipuram

Cooperative House Construction Society. Stating that she had never paid any rent to the respondent, the petitioner denied that wilful default had

been committed by her in the payment of rent to the respondent. Likewise, the petitioner also refuted the claim of the respondent for an order of

eviction u/s 1O(3)(a)(iii) of the Act. The denial of title was also stated to be not mala fide and the petitioner maintained that one Subbu

Venkataraman was the owner of the property and as the agreement of sale was the subject-matter of a suit, the respondent cannot be permitted to

approach the authorities under the Act and seek eviction.

Before the Rent Controller, on behalf of the respondent, Exs. P-1 to P-3 were filed and the husband of the respondent and her brother were

examined as P.Ws. 1 and 2, while on behalf of the petitioner, Exs. R-1 to R-9 were marked and there was no oral evidence. On a consideration

of the oral as well as the documentary evidence, the Rent Controller found that the relationship of landlord and tenant existed between the

respondent and the petitioner and that the default in the payment of the rents, was wilful. It was also found that the respondent had established

bona fide requirement of the premises in the occupation of the petitioner for her own use and occupation and that the petitioner for her own use

and occupation of the petitioner had also wilfully denied the title of the respondent. On the aforesaid conclusions, an order for eviction was passed

against the petitioner. Aggrieved by this, the petitioner preferred R.C.A. No. 1044 of 1983 before the Appellate Authority (7th Judge, Court of

Small Causes), Madras. On a re-consideration of the oral as well as the documentary evidence, the appellate authority concurred with the

conclusions arrived at by the Rent Controller and upheld the order of eviction and dismissed the appeal, the correctness of which is questioned in

this civil revision petition.

Learned Counsel for the petitioner contended that the relationship of landlord and tenant had not subsisted between the respondent and the

petitioner, as the mother of the respondent had entered into an agreement of sale on 28.8.1969. initially and later, on 5.11.1969 and the petitioner

had also paid certain amounts to her and the brother of the respondent and after the entering into the agreement of sale as aforesaid, the petitioner

continued to remain in possession, not as a tenant, but in pursuance of the agreement of sale. Learned Counsel relying upon the decision in John V.

John v. Goolamally Estates, etc. 1989 T.L.N.J. 311, submitted that even if the petitioner had entered into an agreement of sale and had, thereafter,

continued to be in possession, the petitioner can invoke Section 53-A of the Transfer of Property Act and the relationship of landlord and tenant

cannot be stated to have subsisted subsequent to the agreement of sale. It is not possible to accept the contention so advanced. In this case, it is

seen that even under Exs. R-2 to R-5 addressed by the brother of the respondent (P.W. 2) to the husband of the petitioner and the petitioner, a

reference has been made to the rent payable in a sum of Rs. 150 per mensem. In Ex. R-2 in particular, P.W. 2 had informed the petitioner that the

rent of Rs. 150 per mensem had to be sent to reach on or before 7th. In Exs. R-3 to R-5 also, there is a reference to the rent payable in a sum of

Rs. 150 as usual and also there is an acknowledgement of the receipt of Rs. 150. Obviously, therefore, the petitioner had come into possession of

the building initially, only as a tenant. Under Ex. P-3 dated 14.7.1980, the respondent had become the owner of the property. From the recitals in

Ex. P-3, it is seen that the father of the respondent, Subbu Seshan, was originally a member of the society and the house had been constructed and

completed and also occupied on 5.5.1954 and subsequently, on the death of Subbu Seshan on 25.9.1963, the respondent''s mother Meenakshi

became a member and on her death, on 8.10.1973, the respondent as the daughter of Subbu Seshan and who had fulfilled all the terms and

conditions of the Society and also discharged her obligations to the society, had become the owner of the property, by reason of the execution of

the sale deed in her favour. On the respondent becoming the owner as such, undoubtedly she also became the landlord u/s 2(6) of the Act and she

was entitled to collect the rent from the petitioner. In repudiation of the liability to pay the rent, the petitioner set up an agreement of sale on

28.8.1969 with Meenakshi Ammal and another later agreement dated 5.11.1969 and claimed that she continued to remain in possession of the

property not in her capacity as a tenant, but by virtue of the agreements. The petitioner has not produced either the agreement dated 28.8.1969 or

even the later agreement dated 5.11.1969. The petitioner has also not gone into the witness box, in order to make available to the court, the terms

of the sale agreements. In the absence of production of the agreements, it cannot be assumed that the obligation of the petitioner to pay the rents

came to an end either on 28.8.1969or on 5.11.1969and thereafter, the petitioner should be regarded as having continued to remain in possession

free from the obligation to pay the rent to the landlord. It is in this connection, a reference to the decision in S. Duraisami Nadar Vs. Nagammal, ,

becomes necessary. It was pointed out in that decision that unless the agreement of sale itself, in specific terms, refers to the fact that the liability to

pay rent had ceased, it cannot be concluded that the relationship of landlord and tenant had also come to an end. Indeed, in Sardar Govindrao

Mahadik and Another Vs. Devi Sahai and Others, , the Supreme Court pointed out at page 1001 and 1002 as follows:

Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to

the contract and continues to retain possession.

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If a person claiming benefit of part performance is inducted into possession for the first time pursuant to the contract, it would be strong evidence

of the contract and possession changing hands pursuant to the contract.

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Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the court would expect something

independent of the mere retention of possession to evidence part performance. Therefore, mere retention of possession, quite legal and valid, it

mortgage with possession is not discharged, could hardly be said to be an act in part performance unequivocally referable to the contract of sale.

From the aforesaid observations of the Supreme Court, it is clear that the mere retention of earlier possession as tenant would not be sufficient, but

that there must be some independent material or evidence to establish that the retention of possession was as, a result of part-performance of the

agreement to sell. In this case, there is absolutely no material whatever to show that the nature of the possession changed its character after

28.8.1969 or even after 5.11.1969. Though learned Counsel relied strongly on John V. John v. Goolomally Estates, etc. 1989 T.L.N.J. 311, it is

seen that the decision had not taken note of the decision of the Supreme court referred to earlier and reported in Sardar Govindrao Mahadik and

Another Vs. Devi Sahai and Others, . The observation therein that the old theory that the contracting party must be inducted into possession

pursuant to the agreement is no longer valid, appears to me to be too widely stated and also against the dictum of the Supreme Court, referred to

earlier and cannot, therefore, be pressed into service by learned Counsel for the petitioner to contend, that there is no relationship of landlord and

tenant between the respondent and the petitioner after 28.8.1969 or 5.11.1969. In the absence, therefore, of independent material to show that

possession of the premisses by the petitioner after 28.8.1969 or even 5.11.1969, was in part-performance of the agreements of sale, it would

follow that her possession continued as before without any change, that is to say, she continued to be a tenant of the respondent with the obligation

to pay the rents, in respect of her occupation of the premises. Admittedly, under Ex. P-3 dated 14.7.1980, the respondent had become the owner

of the property and the tenancy continued between the respondent and the petitioner atleast from 14.7.1980 onwards. Even in the reply notice, Ex.

P-2 dated 12.7.1979 sent by the petitioner, it had been categorically admitted that the rent upto 1976 alone had been paid. Obviously, there has

been no payment whatever of the rent subsequent to Ex. P-3 by the petitioner to the respondent and there is absolutely no justification whatever

for the non-payment of the rents. Under those circumstances, the authorities below were quite justified in holding that the petitioner had committed

wilful default in the payment of the rents.

In regard to denial of title, in the face of Ex. P-3 dated 14.7.1980, in and by which the respondent had acquired title to the property, the

petitioner was not at all in order in having attempted to set up title to the property in the brother of the respondent, viz. P.W. 1. It may be that the

petitioner had entered into an agreement for sale of the property with the mother of the respondent, but when the property had been conveyed to

the respondent herself by the co-operative society, the petitioner was certainly not justified in disputing her title by setting up title in her brother,

P.W. 2 to the property. The petitioner had also not entered the box to establish the circumstances under which she denied the title of the

respondent to the property. Under those circumstances, the denial of title has to be regarded as wilful meriting the passing of an order for eviction

against the petitioner.

The respondent had also prayed for an order of eviction u/s 1O(3)(a)(iii) of the Act. The respondent is not in occupation of a residential

premises of her own in Madras city. Indeed, the petitioner has also not established that the respondent is in occupation of a residential house in

Madras city. The husband of the respondent in his evidence as P.W. 1 clearly stated that his son is employed in Madras and his daughter is also

residing in Madras and that he is also anxious to do some consultation work and he is also desirous of setting up his family at Madras. This

evidence of P.W. 1, has not in any manner been challenged by the petitioner. On the available materials, the respondent had also established that

she bona fide required the premises in the occupation of the petitioner for her own occupation.

A careful consideration of the entire evidence clearly establishes that the relationship of landlord and tenant has been made out in this case

between the respondent and the petitioner had wilfully defaulted in the payment of the rents and y also denied the title of the respondent and the

respondent had also established her bona fide requirement of the premises for her own use and occupation. There is therefore, no illegality or

irregularity in the order of the authorities below meriting interference in the exercise of the re-visional jurisdiction u/s 25 of the Act, as the findings

recorded by the authorities below are fully supported by the evidence. The civil revision petition is, therefore, dismissed with costs.