R. Sambandan alias Babu vs S. Krishnaveni

This civil revision petition has been filed by the appellant/tenant against the judgment and decree dated 23.1.1996 and made in R.C.A.No.545

of 1994 on the file of the VIII Judge, Court of Small Causes, Madras, confirming the order and decretal order dated 29.4.1994 and made in R-

C.O-P.No.356 of 1991 on the file of the Rent Controller/XIII Judge, Court of Small Causes, Madras.

The petitioner in the rent control petition who is the respondent herein is the owner and landlady of the premises described in the petition and it

is a portion of the premises bearing Door No.37, Perumal Koil St., Choolaimedu, Madras-94. The respondent in the rent control petition, who is

the revision petitioner herein is in possession and enjoyment of the said premises in a monthly rent of Rs.210, excluding electricity charges. The

tenancy in according to the English calendar month and the premises in question is let out for residential purposes. The revision petitioner has

committed wilful default in payment of rent from 1.11.89 to 31.12.1990 and for the month of January, 1991 also. The petition of the respondent

herein has passed a course holding and her second son has secured certificate in diesel mechanism. They are in search of a job and in order to help

them to secure a job, the respondent herein intended to set up her family at Madras in the demised premises. The respondent herein, therefore,

requires the demised premises for her own use and occupation and such requirement is bonafide. It is under the said circumstances the respondent

herein sought for eviction of the revision petitioner from the demised premises.

The revision petitioner, as respondent before the Rent Controller, resisted the claim made by the petitioner (respondent herein), on the grounds

that he is paying any rent to the respondent herein that the petitioner is not entitled to file the petition and that, therefore, it has to be dismissed as

not maintainable.

After considering the material evidence placed before the rent controller, the Rent Controller has come to the conclusion that there is relationship

of landlord and tenant betwees the respondent herein and the revision petitioner; that the revision petitioner has committed wilful default in payment

of rent as alleged by the respondent herein; that the requirement of the demised premises for own use and occupation of the respondent herein is

not bona fide and ordered for eviction of the revision petitioner from the demised premises. Aggrieved at the order and decretal order dated

29.4.1994 and made in R.C.O.P.No.356 of 1991, the tenant/respondent in the said petition, as appellant, preferred an appeal in R.C.A.No.545

of 1994 on the file of the VIII Judge, Court of Small Causes, Madras. The learned Rent Control Appellate Authority, after hearing the submissions

made on both sides and in the light of the material evidence available on record, has come to the conclusion that the respondent herein is the

landlady of the demises premises having ownership to the same; that the revision petitioner is the tenant under the respondent herein; that the denial

of title of the respondent herein to the demised premises by the revision petitioner is not bonafide; that the revision petitioner has committed wilful

default in payment of rent; and that the requirement of the demised premises by the respondent herein for own use and occupation is not bonafide

and, accordingly, confirmed the order and decretal order of the Rent Controller thereby dismissing the appeal preferred by the revision petitioner

as appellant before that court. Aggrieved at the said judgment and decree dated 23.1.1996 and made in R.C.A.No.545 of 1994, the appellant, as

revision petitioner, has come forward with this civil revision petition.

The petitioner before the Rent Controller is the respondent herein and the respondent before the Rent Controller is the revision petitioner before

this Court. The pleadings in the petition and the evidence of P.W.I Thiru, Shanmughan. the husband of. the respondent herein, and P.W.2 Tmt.

Saradambal, the mother of the respondent herein would disclose that the respondent herein is the owner of the demised premises. The evidence of

P.W.2 would disclose that the property measuring about 15 grounds bearing old door No.30 in Perumal Koil St., Choolaimedu, Madras was

purchased by Vadivel Naicker, the father- in-law of P.W.2, by means of a sale deed, dated 26.4.1923, the copy of which is Ex.B.5. It is also

evident from the evidence of P.W.2 that Vadivel Naicker had two sons viz. Govindasamy Naicker and Ranganatha Naicker to whom P.W.2 was

given in marriage. Ranganatha Naicker leaving P.W.2 and her son Ramachandra Naicker and there was a partition between Govindasamy

Naicker and Ramachandra Naicker, as seen in Ex.P.6, dated 21.9.1972. A perusal of Ex.P.6 would disclose that 14 grounds and 2119 sq.ft in

T.S.No.154 in Perumal Koil St, Puliyur Village was allotted to the share of Ramachandra Naicker. The abovesaid property was described as ""B

Schedule in the said document Ex,P.9, dated 15.10.1973, copy of the order of the Assistant Commissioner of Urban Land Tax, sent to P.W.2

Saradambal, would disclose that the abovesaid authority has recognised the title to the abovesaid 14 grounds and 2119 sq.ft of land, allotted under

Ex.P.6, to the share of Ramachandra Naicker, the son of P.W.2 in her. It is also evident from Ex.P.9 that the door number for the said property

then was 30, Perumal Koil St, Choolaimedu, Madras. Ex,P.7 dated 24.9.1974 is the patta issued in the name of the abovesaid Ramachandra

Naicker in respect of 14 grounds and 2119 sq.ft. in Perumal Koil St, Choolaimedu, Madras and in T.S.No.154. The existence of a house in the

said property has also been mentioned therein. It is evident from the abovesaid patta, which is an evidence of possession, that Ramachandra was

put in possession of the property described in the partition deed Ex.P,6, after the said partition. Ex.P.l dated 29.9.1976 is the registered partition

deed executed between the abovesaid Ramachandra Naicker, his sister Krishnaveni the respondent herein, and two other sisters of the above said

Ramachandra Naicker, with regard to the property of 3 grounds and 1800 sq.ft in T.S.No.154. It is evident from the evidence available on record

that the above said Ramachandra Naicker had sold a portion of the property allotted to him under Ex.P6 and effected partition with regard to the

property described in Ex.P.l between himself and his sisters, including the respondent herein. The door number for the above said property was

shown as 30 at that time an T.S.number was shown as 154 in Block Number 14 of Puliyur Village. The property described in ""B"" Schedule in

Ex.P.l was allotted to the respondent herein and it measures 54 feet East West and 68 Feet 6 inched North-South on the East and 63 feet 6 inches

North-South on the West, measuring about 1 1/2 grounds. A perusal of the abovesaid documents would disclose that the respondent herein was

put in possession of the abovesaid property as a vacant site then. Ex.P.4 dated 2.1.1990 is the patta issued in the name of the respondent herein

by the Revenue authorities with regard to 1 ground 1177 sq.ft in T.S.No.154/11 in Perumal Koil St, Puliyur Village. The door number for the said

property was also shown as 30, penimal Koil St, Choolaimedu, Madras. On a perusal of Exs.P. 1 and P.4 it is evident that patta, which is an

evidence of possession, has been issued in favour of the respondent herein with regard to the property described as ""B"" schedule in Ex.P.l,

measuring about 1 ground 1177 sq.ft. Admittedly, the property described in the Rent Control petition is a portion of the property described in

Ex.P.l and P.4. It is evident from the above documentary evidence that the respondent herein is the owner of the land described in the rent control

petition.

The evidence on record would disclose that the demised premises was a thatched house containing three rooms. Admittedly, the roof of the

abovesaid house was changed with light roof in the year 1989. According to the respondent herein, the construction of the thatched house and the

change of roof in the year 1989 were done by her at her own cost and the revision petitioner herein is in occupation of the demised premises on a

monthly rent of Rs.210. The case pleaded by the respondent herein, in the rent control petition, is also to the effect that she is the owner of the

demised premises, inclusive of the superstructure standing thereon and the revision petitioner has been in possession of the said premises on a

monthly rent of Rs.210 as tenant. Though the revision petitioner has denied the payment of rent as a tenant to the respondent herein to the demised

premises, in the counter statement filed by him. But, in the course of evidence, the revision petitioner has taken a stand that the thatched house

which was in existence in the land described in the rent control petition was put by his grand father and his father and they have been in possession

and enjoyment of the said premises and that the light roof in the demised premises was changed by him in the year 1989. The revision petitioner

has not taken such a stand in the counter filed by him, at the earliest point of time.

The evidence of P.W.I would disclose that the house with thatched roof was constructed by the respondent herein after the partition under

Ex.P.l, dated 29.9.1976. It is also evident from the evidence of P.W.I that the above said light roof in the demised premises was put up after

chajiging the thatched roof in the year 1989, by the respondent herein. The evidence of P.W.2 would show that the respondent herein has put up

the house with thatched roof, within one year or six months from the date of allotment of the property to her in the partition. It is also her evidence

that well was dug and bathroom was erected at the time of construction of the said house, by the respondent herein. P.W.3 Thiru S. Murugesan is

a resident of Kancheepuram, doing work in changing roofs of houses. His evidence would disclose that there was a contract for change of

thatched roof with light roof for a coolie of Rs.5,300 in September, 1989, for the demised property and accordingly he had put up light roof in the

demised premises. It is also his case that 110 light roof sheets were purchased for ihe putting up of the abovesaid light roof for the demised

premises. There is no reason to disbelieve the evidence of P.W.3 with regard to the putting up of light roof to the demised premises, after receiving

a sum of Rs.5300 as coolie. It is based on the evidence of P.Ws.l to 3 that the court below have concurrently come to the conclusion that the

construction of the house with thatched roof and subsequent change of the roof with light roof could have been done only by the respondent herein,

disbelieving the oral evidence of R.W.I Thiru Sambandam and also Ex.R.15 (Series), xerox copies of the bills for the alleged purchase light roof

sheets. While coming to such conclusion, the fact of the revision petitioner not producing the original of Ex.P.15 (Series) and the non-production of

any evidence for the construction of the house with thatched roof by his grand father or father, except the interested testimony of R.W.I, have been

taken into consideration by the Courts below and there is nothing wrong on the part of the courts below in disbelieving the evidence of R.W.I, who

has stated that the building without light roof in the demised premises was constructed by the grand father or father of the revision petitioner and

light roof was put by the revision petitioner. Therefore, the respondent herein has produced acceptable evidence, while not so by the revision

petitioner, for the construction of the superstructure with light roof in the demised premises. It is under the said circumstances the Courts below

have some to the conclusion that the respondent herein is the owner of the demised premises.

Ofcourse, the respondent has produced Ex.R.l, dated 20.6,1963, the promissory note executed by Munusamy Naicker in favour of Velu

Naicker, the paternal grand father of the revision petitioner, to prove that Velu Naicker was in possession of the demised premises. A perusal of

Ex.R.l would disclose that it relates to Door No.34, Arthareyapuram and not to the then Door No.30, Perumal Koil St, Choolaimedu, Madras.

The Electoral Roll of Saidapet Assembly constituency, Ex.R.2, relates to Door No.7C , Arthareyapuram Main Road and not the old number 30,

referred to above. Ex.R.3, dated 29.4.1971, the certificate issued by one Bapu and Company in favour of the revision petitioner herein, shows the

address as No.34, Arthareyyapuram, Choolaimedu and not the demised premises, bearing Door No.30. Ex.R7, dated 2.3.1974 is the order of

appointment issued to the revision petitioner as Junior Electrician in the Government press, Mint Buildings Madras-1 and in the said order Door

No.36, Perumal Koil St, Choolaimedu, Madras-24 has been given. But, in Ex.R.8 dated 24.4.1974, a record showing the passing of some tests in

electric wiring, the address of the revision petitioner has been given as No.30,Perumal Koil St, Choolaimedu, Chennai-24. It is not known as to

how within one month there can be two addresses and it should obviously be a mistake or such door number should have been wrongly given .by

the revision petitioner to the authorities concerned. Similar is the position in showing the address of the revision petitioner as No.30, Perumal Koil

St, Choolaimedu, Madras-24 in Ex.R.5, the death certificate issued by the Corporation of Madras, with regard to the death of the mother of the

revision petitioner and also in the selection of the revision petitioner as wireman, as seen from Ex.R.I 1 dated 20.1.1976, issued by the Posts and

Telegraphs Department, Madras Telephones. Therefore, giving address as No.30, Perumal Koil St, Choolaimedu, Madras-24 by the revision

petitioner herein to the authorities to whom he had applied for employment will not in any way help hiirTto establish that the building in the demised

premises was constructed either by his grand father or his father.

A perusal of the order of the Rent Controller would disclose that it has been categorically concluded that the revision petitioner herein has failed

to establish that he has got any title to ihe demised premises under this occupation. The said view of the Rent Controller was accepted by the Rent

Control Appellate Authority in the appeal and there is a concurrent finding.

The learned senior counsel for the respondent contends that this High Court, while exercising revisional jurisdiction u/s 25 of the Tamil Nadu

Buildings (Lease and Rent Control) Act cannot reassess the evidence at the time of examining the correctness of the findings of fact and in support

of such contention relied on the decision reported in Ramdoss v. K. Thangavelu, 2000 (2) CTC 303 : 2000 (2) L.W.310. The Apex Court, in the

said decision, has held that the High Court was not justified in interfering with the finding of fact recorded by the courts below by reassessing the

evidence as if it is a second appeal. Therefore, this Court concurs with the concurrent finding of the courts below in holding that the respondent

herein is the owner of the demised premises and the revision petitioner has no right to the said premises except the fact that he is in possession of

the demised premises.

The learned counsel for the revision petitioner contends, relying on the decision reported in N.A.S.Ansari v. M.Sarangan, 1996 (2) L.W. 315,

that the question of title of the landlord need not be gone into in a proceedings under the Rent Control Act. Of course, it has been held so in the

case cited above. But, in this case, the revision petitioner, who has not denied the ownership of the landlady, the respondent herein, to the demised

premises, in the counter has chosen to deny the same during the course of evidence by setting up title to the demised property to himself, through

his grand father or father. Therefore, there was a compelling necessity for the courts below to go into the question of ownership of the parties to

the demised premises. Once it is established that the respondent herein is not the landlady of the demised premises, the eviction proceedings

initiated by her can be thrown out at the outset. Therefore, the ruling relied on by the learned counsel for the revision petitioner herein will not in any

way help the case of the revision petitioner.

A perusal of the case put forward by the respondent herein, supported by the evidence of P.W.I would disclose that there was no lease

agreement between the respondent herein and the revision petitioner with regard to the lease of the demised premises on a monthly rent of Rs.210.

It is also the specific case of P.W.I that there was no habit of issuing receipt for payment of rent by the revision petitioner for the premises under

his occupation to the respondent herein. It would go to show that the tenancy alleged by the respondent herein is only an oral tenancy between her

and the revision petitioner. In the absence of any document in writing for the lease agreement between the parties to the proceedings, the court has

to necessarily decide as to whether there was relationship of landlord and tenant between the respondent herein and the revision petitioner, based

on the oral evidence available before court. Admittedly the revision petitioner is in possession of the demised premises, but, he has not pleaded in

the counter as to the capacity in which he is in possession of such property. He has also not taken a stand that he or his grand father or his father

had trespassed into the demised property at any time before an he is exercising right over the said property adverse to the interest of the

respondent herein, to her knowledge, by putting up superstructure in the demised premises. It is relevant to point out that this court has already

concurred with the concurrent finding of the courts below that the revision petitioner has failed to establish that his grand father or his father had put

up thatched house in the demised premises and that thereafter the revision petitioner had changed the thatched roof of the premises and put up light

roof in the year 1989.

The evidence of P.W.I would clearly go to show that the revision petitioner is in occupation of the demised premises on a monthly rent of

Rs.210, exclusive of electricity charges. It is also his case that either he, who is admittedly residing at Kancheepuram, will collect the rent from the

revision petitioner, if he comes to Madras, or else, the rent will be paid to P.W.2 Smt.Saradambal, the mother of the respondent herein. P.W.2,

Tmt. Saradambal, would also state that the rent for the demised premises will be paid by the revision petitioner either to P.W.I or to her. It is

evident from the evidence of P.Ws. 1 and 2 that the revision petitioner was in occupation of two rooms on a monthly rent of Rs.100 from the year

1978; that one Kannan had occupied another room on a monthly rent of Rs.50; that after putting up of light roof in the year 1989 Kannan vacated

the room under his occupation; that the said room was also given to the revision petitioner, on his request, after agreeing to pay a rent of Rs.210

per month and that thereafter, the revision petitioner was paying Rs.210 per month as rent to the respondent herein. The respondent herein has

examined P.W.4 Thiru R.Alphones, who would state that he was residing with his father A. Raju in one of the six houses constructed by

Ramachandra Naicker, the brother of the respondent herein; that his father fell ill and he was admitted in the Government Hospital at Madras; that

he vacated the premises under his occupation as tenant under Ramachandra Naicker in the year 1985; that while he was residing in the said house

owned by Ramachandra Naicker he has seen the revision petitioner occupying two portions constructed by the respondent herein before three

years; that the father of the revision petitioner herein dies in an accident and that he had attended the funeral of the father of the revision petitioner.

The evidence given by P.W.4 would not only help the respondent herein to establish that he put up the superstructure in the demised premises but

would also help to establish that the revision petitioner was in occupation of the two portions of the demised premises, constructed by the

respondent herein, as tenant. There is absolutely no reason to disbelieve the evidence of P.W.4, who was a third party, as rightly held by the courts

below.

Though the revision petitioner has denied the tenancy while admitting the occupation of the demised premises, he has not let in any other

evidence, except his interested testimony, to establish that he is not in Occupation as a tenant under the respondent herein in the demised premises

on a monthly rent of Rs.210 but in his own right. The courts below have rightly refused to act on the interested testimony of R.W.I, while accepting

the evidence of P.W.s 1, 2 and 4 with regard to the tenancy between the respondent herein and the revision petitioner. In view of the abovesaid

circumstances, this Court, which has no power to reassess the evidence of witnesses available on record, while exercising revisional jurisdiction, is

concurring with the concurrent finding of the courts below with regard to the relationship of landlord and tenant between the respondent herein and

the revision petitioner.

The learned senior counsel for the respondent herein contends that the denial of title of Ihe respondent herein by the revision petitioner is not

bonaflde and, therefore, the order of eviction of the revision petitioner for the demised premises has to be sustained on the ground of denial of title

being not bona fide. The learned counsel appearing for the revision petitioner would contend contra to it. A perusal of the order of the Rent

Controller would disclose that the Rent Controller has categorically come to the conclusion that the revision petitioner has not established his

ownership and title to the demised property inclusive of the superstructure, but, on the other hand, the respondent herein has established her

ownership to the demised premises, even though there was no specific issue and finding whether the denial of title of the respondent herein by the

revision petitioner is bona fide or not, on the evidence available before that court. The question whether the denial of title of the respondent herein

by the revision petitioner is bona fide or not, on the evidence available before that court. The question whether the denial of title of the respondent

herein by the revision petitioner is bonaflde or not has been argued before the Rent Control Appellate Authority by citing case laws reported in Mis

Hussain Lorry Booking Service by its Partner M. Illasan Rowther, Coimbatore and others v. Sirajudin, 1991 (2) MLJ 48 and Athimoolam v.

Loganathan, 1993 TLNJ 93 as seen in para 8 of the judgment. After considering the submissions made by both sides and in the light of the

decisions referred to above, the appellate authority has given a finding based on evidence available on record that the denial of title of the

respondent herein by the revision petitioner is not bonafide and hence die order of eviction as ordered in the cases cited above has to be sustained

in this case. Since the denial of title of the respondent herein by the revision petitioner, in the circumstances of this case, is not bona fide, as rightly

held by the Rent Control Appellate Authority, in paragraph 8 of his judgment, this court also has to concur with such finding.

The fact remains that the respondent herein has come forward with a specific case that the revision petitioner has not paid rent for the demised

premises with effect from 1.11.1989 till January, 1991. The revision petitioner admits that he has not paid rent for the abovesaid period on the

ground that he is not liable to pay rent as there is no relationship of landlord and tenant between the respondent herein and the revision petitioner.

The Courts below have concurrently held that there is relationship of landlord and tenant between the respondent and the revision petitioner and

that the revision petitioner has committed wilful default in payment of rent. This Court also has concurred with the findings of the Courts below that

here is relationship of landlord and tenant between the respondent herein and the revision petitioner. Therefore, the revision petitioner is bound to

pay rent at the rate of Rs.210 per month for the premises under his occupation, to the respondent herein. The conduct of the revision petitioner in

not paying the rent to the respondent for the occupation of the premises owned by the respondent herein by denying the the of the respondent to

the said premises shows the supine indifference on the part of the revision petitioner herein in payment of rent.

The Apex Court, in S. Thangappan v. P.Padmavathay, 2000 (1) L.W782, has held that if the denial of landlord''s title by the tenant is not

bonafide the default in payment of rent to the landlord by the tenant is wilful. The principle laid down in the above case squarely applies to the facts

and circumstances of the case on hand and, therefore, the nonpayment of rent by the revision petitioner for the period mentioned above will

certainly amount to wilful default.

The respondent herein has sought for eviction of the revision petitioner from the demised premises for her own use and occupation and such

requirement was found to be not bona fide by the Rent Controller as well as the Rent Control Appellate Authority, for want sufficient proof.

Therefore, the counsel appearing on either side has not urged this point before this Court and, therefore, the question as to whether the requirement

of the demised premises for own use and occupation of the respondent herein is bonafide or not does not arise for consideration.

The learned counsel for the revision petitioner has filed a petition in C.M.P.No.9325 of 2000 under Order 41, Rule 27(1) (b) CPC seeking

permission of this Court to permit him to file additional documents viz. copies of the plaint, written statement, deposition of P.W.I and judgment

and decree in O.S.No.545 of 1991 on the file of the City Civil Court, Madras, filed by the respondent herein as plaintiff against the revision

petitioner, seeking for permanent injunction restraining the revision petitioner from in any way interfering with the peaceful possession and

enjoyment of the property bearing No.37, Perumal Koil St, Choolaimedu, Madras-94 and also from changing or causing damage to the existing

superstructure in the property described in the plaint schedule. The respondent has resisted the petition on the ground that the petitioner has no

locus stand: to file the above said petition in view of several decisions rendered by this Court that a petition to receive additional evidence cannot

be entertained by the court sitting in revisional jurisdiction and that, therefore, the petition filed for receiving additional documents has to be

dismissed.

The learned counsel for the revision petitioner relied on the decision reported in Raja Mohammed Vs. V.D. Murugesan, , wherein it was held

that there can be no absolute rule that document cannot be received in evidence in revision, if a case is made out by the petitioner for reception of

document. In this case, the questions involved are whether there is relationship of landlord and tenant between the respondent herein and the

revision petitioner; whether the respondent has committed wilful default in payment of rent and whether the requirement of the demised premises

for own use and occupation is bona fide or not. While deciding the above said points, the courts are constrained to go into the ownership of the

demised premises and also, incidentally, to give a finding whether the denial of title of the respondent herein by the revision petitioner is bona fide

or not, There is sufficient evidence before the courts below to decide the afore said points and on such evidence findings have been given by the

courts below concurrently which have been accepted by this court below concurrently which have been accepted by this court also. The revision

petitioner, as petitioner, has not made out a case for reception of the additional evidence in this case, as held by the learned single judge of this

Court in the case cited above. Therefore, the case law cited will have no application to the case on hand.

The learned senior counsel for the respondent has brought to the notice of this Court a decision reported in M/s. The Calcutta Chemicals and

Limited Vs. Taiyeb Yusufbhai Vakharia and another, and would contend that the documents produced as additional evidence cannot be received

at the stage of revision. A learned single Judge of this Court, after referring to various judgments, including judgments of this High Court on this

point, has held in the said decision that the High Court will not be justified in receiving additional evidence while sitting in its revisional jurisdiction.

This Court agrees with this decision in the circumstances of this case and held that the petition filed by the revision petitioner for reception of

additional documents cannot be entertained by this Court, while sitting in its revisional jurisdiction. Accordingly, the petition in C.M.P.No. 92325

of 2000 is dismissed,

The learned counsel for the revision petitioner relied on the decision reported in S. Gurusamy Nadar (died) and 3 others Vs. Andal Ammal

(died) and another, and would contend that High Court can interfere in revision with a concurrent finding if the authorities below, on admitted facts,

chose to draw an improper and wrong inference, which cannot be supported or sustained. Ofcourse, a single Judge of this Court has rendered the

decision as mentioned above. But, in this case, nothing was brought to the notice of this Court that (he courts below have drawn an improper or

wrong inference, which cannot be supported or sustained in the light of the admitted facts. In view of the said position, the decision cited above will

not also help the case of the revision petitioner in any respect.

In view of the foregoing reasons, this Court holds that there is no warranting circumstance to interfere with the concurrent finding of the courts

below in ordering eviction of the revision petitioner from the demised premises owned by the respondent herein.

In fine, the judgment and decree of the Rent Control Appellate Authority are confirmed and the civil revision petition filed by the tenant as

revision petitioner is dismissed, but, in the circumstances of this case, without costs. C.M.P.No.9325 of 2000 is also dismissed.