Raju vs A. Ponnammal

K.A. Swami, C.J.—This revision petition is preferred u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter

referred to as the Act, against the order dated 19th September, 1986 passed by the learned Appellate Authority, Tiruchirapalli, in R.C.A. No. 1 of

1985. The respondent-landlady filed the application u/s 10(2)(i) and 10(3)(a)(i) of the Act alleging that the petitioner/tenant has been in wilful

default in the payment of rent and that the schedule premises is required for the use and occupation of her son who is an Excise Officer of the State

Government. Both the Rent Controller as well as the Appellate Authority have negatived the ground pleaded u/s 10(2)(i) of the Act. As far as the

ground pleaded u/s 10(3)(a)(i) of the Act is concerned, both the authorities have concurrently held that the landlady bona fide requires the schedule

premises for the use and occupation of her son. Accordingly, an order for eviction has been passed by the learned Rent Controller and the same

has been confirmed by the Appellate Authority.

In this revision it is contended on behalf of the petitioner tenant that as there are more than four houses owned by the landlady and her sons in

Tiruchirapalli town and one of them is occupied by the landlady, it is not open to her to seek eviction of the tenant u/s 10(3)(a)(i) of the Act. During

the pendency of the proceedings before the learned Rent Controller, the first floor of r the premises fell vacant and the same was not occupied by

the son of the landlady and it was allowed to be occupied by her servants. Hence there is lack of bona fides on the part of the landlady inasmuch

as if really the landlady wanted the premises for her son, it was not difficult to occupy the first floor.

On the contrary, it is contended on behalf of the respondent landlady that both the authorities below have concurrently held that the landlady

bona fide requires the schedule premises for the use and occupation of her son and as such in a revision u/s 25 of the Act, no interference is called

for. It is also further contended that regarding the first floor, the Appellate Authority has held that, that portion of the building is also required for

the occupation of the son of the landlady in order to meet the officers who come to see him. Therefore, it is submitted that the fact that the first

floor became vacant and it was not occupied either by the landlady or her son cannot be used against the respondent landlady to doubt her bona

fide in seeking eviction of the petitioner tenant.

In the light of the contention urged on both sides, the points that arise for consideration are:

Whether in the facts and circumstances of the case the landlady is entitled to seek possession of the premises u/s 10(3)(a)(i) of the Act?

Whether in the absence of evidence as to the nature and extent of the accommodation available in the ground and the first floor, the authorities

below are justified in holding that the claim of the landlady in seeking possession of the premises in question is bona fide?

Point No. 1 : Section 10(3)(a)(i) of the Act reads thus:

A landlord may, subject to the provisions of Clause (d), apply to the controller for an order directing the tenant to put the landlord in possession of

the building:

(i) in case it is a residential building, if the landlord requires it for his own occupation or the occupation of any member of his family and if he or any

member of his family is not occupying a residential building of his own in the city or village concerned.

In order to secure an order directing the tenant to put the landlord in possession of the residential premises, apart from satisfying the requirements

of Section 10(3)(a)(i) it is also necessary to prove that his or her claim is bona fide.

Section 10(3)(a)(i) has been considered by this Court in several decisions. Section 7(3)(a) of the Madras Buildings (Lease and Rent Control)

Act, 1949 also contained the words:

In case it is a residential building, if the landlord requires it for his own occupation and he is not occupying a residential building of his own in the

city, town or village concerned.

In Kolandaivelu Chettiar v. Koolayama Chettiar (1961) 1 M.L.J. 184 : 74 L.W. 164, it was held thus:

I entirely agree with Mr. N.R. Raghavachariar, the learned Counsel for the respondent, because it is well-settled under the Hindu Law that no

coparacener is entitled to separate possession of the coparcenary estate. The actual possession and management thereof must vest in a manager.

He is the protector of the household and can prevent by obtaining an injunction a riotous member thereof from entering the family house without his

permission to disturb his peace and tranquillity. It is also well-settled that all the coparceners have a community, of interest and unity of possession

in the coparcenary or joint family property. A coparcener cannot, while the family is undivided, predicate at any given moment that he, the

particular coparcener, has a definite share in the coparcener property. Applying these principles the learned Counsel for the petitioner is not

correct in saying that the petitioner''s second son is in occupation of a residential building of his own.

The learned Counsel for petitioner also laid emphasis of the words ""of his own"" I am not much impressed with his arguments that the expression ""of

his own"" must be deemed to mean either constructive ownership or notional possession. The meaning to be given to the word ""own"" depends upon

the subject-matter and circumstances surrounding it. It is a general term which varies in its significance according to its use. The Madras Buildings

(Lease and Rent Control) Act, 1960 is concerned with the actual and physical possession and not with the notional and constructive possession,

and it will be foreign to the scheme of the Act to hold that occupation of one member should be construed as occupation by another when that

another is not in fact in occupation. This was followed in Annamalai and Company Vs. Sital Achi, . That was a case under the Act. It was held that

the owner of a residential premises could invoke the provisions of Section 10(3)(a)(i) of the Act if the building is required for his own occupation

or for the occupation of any member of his family provided the member of the family for whose benefit the possession of the premises is sought, is

not occupying residential building of his own. In Mani v. D. Ramalingam (1985) 1 M.L.J. 329, it has been held thus:

From a reading of the above decisions, it is manifest that the expression ""is not occupying a residential building of his own"" should be limited to the

situation where the landlord is not occupying a residential building of which he is sole owner thereof. Viewed in this angle, the petition by the

landlord u/s 10(3)(a)(i) of the Act is perfectly maintainable.

The decision in Jagannatha Chettiar v. Swarnambal 97 L.W. 182, is not applicable to a case where the joint family is the owner of several

residential premises and one of the premises is in their occupation and seeks possession of another premises for the use and occupation of one of

the coparceners. Therefore, the contention put forth by the revision petitioner/tenant that the landlady cannot seek possession of the premises in

question for the use and occupation of her son, because she is already in possession of the premises belonging to her, cannot be accepted as valid

because the son of the landlady, for whose benefit the possession the premises is sought, is not in possession of a premises of his own and landlady

is not the exclusive owner of the premises of which she is in occupation. Accordingly, point No. I is answered in affirmative.

Point No. 2 : In this case, it is not in dispute that there are four residential houses owned by the landlady along with her sons. Out of the four

houses, one is in her occupation in which herself and her sons are residing. The others are in the possession of the tenants. When the eviction

petition was pending in respect of the schedule premises, the first floor over the schedule premises fell vacant. It has not been schedule premises

fell vacant. It has not been occupied by the son of the landlady for whose benefit eviction of the tenant from the premises in question is now sought

for. It is also noticed by the learned Appellate Authority that the first floor over the schedule premises has been allowed to be used by the servants.

The extent of the premises has nowhere been stated. The son of the landlady, for whose benefit possession of the premise is sought, is married and

has got one child, the case of the landlady is that he wants to reside separately from the other members of the family, therefore, the schedule

premises is required. That being so, when the first floor of the premises fell vacant, it was required of the Rent Controller and also the Appellate

Authority in order to determine the bona fides on the part of the landlady to evict the tenant, to ascertain the extent and the nature of

accommodation available in the ground floor as well as the first floor. In the absence of evidence in this regard, and in view of the fact that the son

of the landlady has failed to occupy the first floor as it has been allowed to be occupied by the servants, it is not possible to determine the bona

fides of the landlady. Therefore, the authorities below in the absence of such evidence, committed serious illegality in holding that the bona fides of

the landlady is established. Accordingly, point No. 2 is answered in the negative.

In the light of the conclusions arrived at, it becomes necessary to remit the matter as otherwise it would cause great injury to the landlady as the

possession of the premises is sought for the use and occupation of her son who wants to reside separately. For the reasons stated above, this

petition is allowed, the orders of both the authorities below in so for as they relate to the eviction of the tenant on the ground falling u/s 10(3)(a)(i)

are set aside. The dismissal of the eviction petition on the ground falling u/s 10(2)(i) of the Act, is not disturbed. It is now open to the parties to

adduce such additional evidence as they deem it necessary, including the evidence regarding the extent and the nature of the accommodation

available in the ground floor and the first floor. The Rent Controller shall decide the case in accordance with law and in the light of the observations

made in this order. The parties are directed to appear before the Rent Controller on 20th September, 1993, without awaiting for the notice. The

Rent Controller is directed to decide the case within four months from 20th September, 1993. In the facts and circumstances of the case, there will

be no order as to costs.