R. Thangaraju vs S. Muthuswamy Naicker (died) and Others

R.S. Ramanathan, J.—Heard both sides.

The landlord is the revision Petitioner. The eviction petition was filed by the landlord on the ground of wilful default in the payment of rent and on

the ground of wilful denial of title of the landlord.

The case of the landlord was that his father purchased the tenanted premises and other premises under a sale deed, dated 15.05.1957 and he

was doing toddy business and the Respondents'' father was working under him as climber to tap toddy and therefore, the tenanted premises was

given to the tenant''s father and the tenants agreed to pay the rent of Rs. 50/- per month and the landlord''s father died in the year 1979 and in the

family arrangement, the suit property was allotted to the landlord/revision Petitioner and thereafter, the tenant refused to pay the rent and the tenant

has committed wilful default in the payment of rent from 05.05.1980 to 05.02.1993 for a period of 153 months and for that, notice was sent on

31.12.1992 to the tenant. In the reply notice sent by the tenant the tenant denied the relationship of landlord and tenant between the parties and

contended that the property was originally owned by Arulanandasamy Nadar and the tenant''s father was working under Arulanandasamy Nadar

as climber to tap the toddy and the Arulanandasamy Nadar was doing business in toddy and he later orally gifted the said premised to the father of

the tenant, Sivasamy Naicker and his father was residing there by putting construction and after him, the tenant and their family members are

residing in the same property in their own right and as owners and they are not tenants under the revision Petitioner. They also denied the payment

of rent of Rs. 50/- by their father and as there is no relationship of landlord and tenant between the parties, there is no question of payment of rent

and hence, they are not liable to pay the rent.

The learned Rent Controller, accepted the case of the landlord and ordered eviction holding that the tenant predecessor in-title was residing in

the property only in the capacity of tenant and the tenant has committed wilful default in the payment of rent and therefore, on the ground of wilful

default in the payment of rent, the tenant is liable to be evicted and ordered eviction. The learned Rent Controller denied the relief of eviction on the

ground of wilful denial of title. The tenant filed the appeal before the Rent Control Appellate Authority and the learned Rent Control Appellate

Authority held that there is no relation of landlord and tenant between the parties and hence, there is no question of wilful default in the payment of

rent and the denial of title by the tenant was bona fide and therefore, only Civil Court can decide the title over the property and the learned Rent

Controller cannot decide about the title when the denial is bona fide and allowed the appeal. Against the order of the Rent Control Appellate

Authority, this civil revision petition is filed.

Mr. M.V. Krishnan, the learned Counsel appearing for the revision Petitioner, submitted that the learned Rent Control Appellate Authority

having given a finding that the tenant has not proved the oral gift and the construction of the house by the tenant''s predecessor in-title ,ought to

have held that the revision Petitioner is the landlord and the deceased first Respondent in this civil revision petition, was the tenant having regard to

the Exs.P5 to 14, 18 and 19, the house tax receipts in the name of the revision Petitioner.

He further submitted that the house tax receipts referred to above would prove that the property belongs to the revision Petitioner. Though, the

tenant has taken the plea that the land was orally gifted to his father, the tenant has not produced any document to prove that he has put up

construction and the documents produced by the tenants are only electricity bills and marriage invitation, which would only prove that the tenant is

residing in the said premises and those documents will not prove that the tenant is the owner of the superstructure as claimed by him. Therefore, he

submitted that when it is proved that the landlord is the owner of the suit property and the tenant is not able to prove that he is the owner of the

superstructure as claimed by him, the case of the landlord has to be accepted that the Respondent came into possession of the properly as a tenant

and ought to have held that there is wilful denial of title of the landlord and the tenant has committed wilful default in the payment of rent.

On the other hand, Mr. T. Susindharan, the learned Counsel appearing for the Respondents, submitted that unless the landlord is able to prove

that there exist the relation of landlord and tenant between the parties, the application is not maintainable under the Act 18 of 1960 as amended

and in this case, even assuming that the landlord is the owner of the property, there is no acceptable evidence to the effect that the deceased first

Respondent was in possession of the property as his tenant and the case of the landlord that the tenant has committed wilful default in the payment

of rent for 153 months, would also lead to an inference that the deceased first Respondent could not have been in possession in the capacity of

tenant and no landlord would keep quiet when the tenant has committed wilful default in the payment of rent for nearly 153 months. Therefore, he

submitted that there is no relation of tenant and landlord between the parties and in the absence of such relationship, the Rent Controller has no

jurisdiction and even assuming that there is a denial of title, that cannot be gone into in this proceedings and the learned Rent Control Appellate

Authority after considering all these aspects, has rightly allowed the appeal filed by the tenant and that order does not call for any interference.

I have given my anxious consideration to the submission made by both the Counsels.

In this case, it is seen from Exs.P.1, 5 to 14,18 & 19 that the tenanted premises in the occupation of the Respondent was purchased by the

landlord''s predecessor in-title and the learned Rent Control Appellate Authority has also accepted the same and held that the revision Petitioner is

the owner of the property. It is the case of the landlord that his father was doing business in toddy and the tenant''s grandfather and father were

palmarah tree climbers and were working under him for taping toddy and considering the same, the property was given on rent and the tenant''s

predecessor in-title was paying rent and after the property was allotted to the share of the revision Petitioner, he committed wilful default in the

payment of rent and hence, he is liable to be evicted.

The case of the Respondent was that the vacant site was given to the tenant''s father under oral gift by the original owner, Arulanandasamy

Nadar and thereafter, the tenant''s father put up superstructure and was residing there as owner. Admittedly, no document was filed by the tenant

to prove that the superstructure was put up by his father. As stated supra, the house tax receipts, Exs.B5 to 14, 18 and 19 stand in the name of the

revision Petitioner/landlord and if really the tenant''s father had put up superstructure, the house tax receipts would have been assessed in his name.

Therefore, as rightly held by the Lower Appellate Court, considering the sale deed as well as house tax receipts, I also hold that the revision

Petitioner/landlord is the owner of the property.

The next question arises for consideration is whether the deceased first Respondent is in possession of the property as a tenant or he is in

possession as owner.

The documents filed by the Respondents would prove that they are in possession of the property. It is also admitted by the tenants that his

father and grandfather were toddy tappers and it is the case of the revision Petitioner/landlord that his father was running the toddy shop and the

tenant''s father was working under him. Therefore, considering all these aspects, it is more probable that the tenant''s father must have worked

under the revision Petitioner''s father as a toddy tapper and in that capacity, he must have been given possession of the property.

The Lower Appellate Court came to the conclusion that there is no relationship of landlord and tenant on the basis that no landlord would have

kept quiet when the tenant has committed wilful default in the payment of rent for 153 months and immediately after the receipt of the notice from

the landlord, the tenant has stated there is no relation of tenant and landlord between the parties and on that basis held that there is no relation of

landlord and tenant between the parties.

It is true that no landlord would keep quiet for a long period when the tenant has not paid the rent. But having regard to the circumstances of

this case, one cannot presume that there is no relationship of landlord and tenant between the parties only on the ground of non-payment of rent for

a long period, when especially the tenant is not able to prove his character of possession and the title of the landlord to the property has been

proved and therefore, the case of the landlord regarding the tenancy is more probable. Therefore, considering all these facts that the landlord is the

owner of the property and tenant is not able to prove his character of possession, in my considered opinion, the tenant must be put up in

possession of property only as a tenant as claimed by the landlord and the conduct of the tenant in denying the title of the landlord would amount to

wilful denial and is liable to be evicted on that ground.

Further, the case of the landlord is that the tenant has not paid the rent for 153 months. The case of the tenant is that he has paid rent. Once it

is held that the Respondent is a tenant under the revision Petitioner, the nonpayment of rent by the tenant must be construed as wilful default and

hence, the Lower Appellate Court is not correct in dealing that there is no denial of wilful denial of title and no question of wilful default committed

by the tenant.

Hence, the order of the Rent Control Appellate Authority is set aside and the civil revision petition is allowed. The tenant is granted 6 months

time to vacate and hand over the possession of the property on condition of filing an undertaking affidavit before the learned Rent Controller within

a period of two weeks from the date of receipt of a copy of this order. No costs.