Rengammal vs A. Raghavan

S. Sardar Zackria Hussain, J.—The revision petitioner is the unsuccessful landlady before the learned Rent Control Appellate Authority,

who allowed the Rent Control Appeal filed against the eviction ordered by the learned Rent Controller on the ground of wilful default in payment of

rent and also for denial of title.

The revision petitioner filed the Rent Control Original Petition u/s 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,

claiming that she is the owner of the petition residential premises bearing S.L.C. No. 350, K.K. Nagar, Madurai Town and further stating that the

respondent is the tenant in the said premises on a monthly rent of Rs. 500/-. The landlady''s husband G. Alagarsamy Naidu was the original allottee

for the petition premises from the Housing Board and after his death on 27.11.1989 the loan account was transferred from the name of her

husband to her name. The respondent committed default in payment of rent from September, 1989 onwards. The landlady has paid the entire loan

amount to the Housing Board in October, 1990. As requested by the respondent, who is closely related to the landlady''s husband, she signed in

the blank non-judicial stamp papers towards final settlement of the loan payable to the Housing Board. Thereafter, the respondent has been

evading the payment of arrears of rent. He has also sent a letter to the landlady on 5.12.1990 that she obtained Rs. 1,000/- to sell the petition

property for a sum of Rs. 50,000/- and seeking to execute the sale deed after receiving the balance sale price of Rs. 49,000/-. The said agreement

of sale and the receipt of Rs. 1,000/- by way of advance have been denied. There is no necessity for the landlady to sell the petition property for

Rs. 50,000/- which is worth about more than Rs. 2,00,000/-. To the lawyer notice issued on 10.1.1991, the tenant replied on 28.2.1991 that he

became the tenant from 1976 onwards though the landlady''s husband got title only from 1978. The respondent has not paid the arrears of rent for

5 months from November, 1990 to March, 1991 and hence the revision petitioner has filed the R.C.O.P. on 14.3.1991 seeking eviction of the

respondent/tenant on the grounds of wilful default in payment of rent and for denial of title.

The petition was opposed in the counter denying the tenancy relationship and stating that the landlady''s husband Alagarsamy, on the allotment

of the house by the Housing Board, requested him to occupy the house by paying Rs. 10,000/- as initial amount and by paying dues in instalments

to the Housing Board. Accordingly, the respondent paid the instalments to the Housing Board for the allotment of the said house. As such, the

respondent is in possession and enjoyment of the petition house from 1977 onwards as owner of the house. After the death of the revision

petitioner''s husband, she came in 1990 and requested to pay some lump-sum amount. He also agreed to pay Rs. 50,000/- in the presence of

panchayatars on 3.10.1990 and paid Rs. 1,000/- and agreed to pay the balance amount within three months. He is not in occupation of the

petition premises as a tenant and by paying rents. It is denied that the revision petitioner handed over money to him to pay the instalments to the

Housing Board continuously. An agreement was also entered into on 3.10.1990 as stated above. The counter was filed on 12.12.1991.

Before the Rent Controller, the revision petitioner examined herself as P.W.1 and marked Exs.A-1 to A-12. The respondent himself examined

as R.W.1 and his friend Subburam was examined as R.W.2 and marked Exs.B-1 to B-109. The learned Rent Controller, considering such

evidence adduced on either side, ordered eviction on both the grounds of wilful default in payment of rent and for denial of title. In the appeal, the

documents, namely, the agreement dated 3.10.1990 alleged to have been executed between the parties and the notice dated 5.12.1990 sent to the

revision petitioner by the respondent have been marked as Exs.B-110 and 111. The learned Rent Control Appellate Authority considering the oral

and documentary evidence set aside the order of eviction, as per judgment dated 4.7.1996. The landlady preferred revision in C.R.P. No. 67 of

1997, in which, the matter was remitted back to the learned Rent Control Appellate Authority for disposal afresh after affording opportunity to

both sides to adduce further evidence and after perusing the records and documents properly. After such remand, before the learned Rent Control

Appellate Authority, the tenant was further examined as R.W.1 and one Seethapathy was examined as R.W.2 and the revision petitioner was

examined as P.W.1. Considering such further evidence and the evidence already on record, the learned Rent Control Appellate Authority again

allowed the appeal. Aggrieved against the said judgment, the landlady/revision petitioner filed this Civil Revision Petition.

Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.

Admittedly, the petition house bearing S.L.C. No. 350, K.K. Nagar, Madurai Town was allotted to the revision petitioner''s husband

Alagarsamy by the Housing Board. The revision petitioner''s husband Alagarsamy obtained loan from the Housing Board to pay the instalments for

the said house. The respondent, who is closely related to her husband, became a tenant in respect of the said house under her husband and as

requested by her husband, he was paying the instalments to the Housing Board and the balance was paid towards rent till her husband died on

27.11.1989. On her application made to the Housing Board, the house was transferred to her name with all assets and liabilities by the Housing

Board as per Ex.A-4 dated 27.7.1990 and after the settlement of the entire amount, the sale deed was also executed under Ex.A-1 in the name

the revision petitioner on 6.8.1990. As per letter Ex.A-5 dated 30.7.1990 draft sale deed was sent to her for execution of sale deed under Ex.A-1

dated 6.8.1990. As per the letter Ex.A-6, the possession of the house was handed over to the revision petitioner''s husband Alagarsamy on

30.1.1978. As per letter Ex.A-7 dated 1.4.1991, the house was transferred in her name in the house tax register and other register by the Madurai

Corporation. She also paid property tax for the said house under Ex.A-8 dated 14.3.1991. As per Ex.A-9 dated 19.4.1991, the electric service

connection to the petition house was also transferred to her name with effect form 8.4.1991 and she also paid current consumption charges in her

name under Ex.A-10 dated 13.3.1991. Therefore, it is clear from Exs.A-1 to A-10 that the revision petitioner is the owner of the petition house,

which was originally allotted to her husband Alagarsamy by the Housing Board and on his death on 27.11.1989, his widow as the legal

representative got transfer in her name and the sale deed also executed in her name on 6.8.1990.

In the lawyer notice Ex.A-11 undated, it is claimed that the respondent is the tenant of the said house and he failed to pay the rent for the

months of November and December, 1990 and that the respondent obtained her signature in the blank non-judicial stamp papers as required by

the Housing Board and by using the same sent the notice dated 5.12.1990 as if she agreed to sell the petition house for Rs. 50,000/- and also

received Rs. 1,000/- by way of advance. The respondent replied under Ex.A-12 dated 28.2.1991 denying the tenancy and stating that he is in

occupation of the said house as a owner at the request of the revision petitioner''s husband Alagarsamy to whom he paid Rs. 10,000/- and agreed

to pay the monthly instalments to the Tamil Nadu Housing Board for the sale price of the house allotted to the deceased Alagarsamy and the

deceased Alagarsamy being very closely related, the respondent was paying the amount to the Housing Board in instalments. It is also stated in

paragraph 4 of the said notice that the respondent has been in occupation of the house as a owner from 1976 and not as a tenant. But nowhere in

the notice it is averred that the revision petitioner agreed to sell the said house for Rs. 50,000/- and also received advance amount of Rs. 1,000/-.

To show that the respondent was paying the instalments to the Housing Board, the respondent has produced Exs.B-1 to B-93. Ex.B-1 dated

10.3.1978 is the receipt for payment of Rs. 134/- in the name of Alagarsamy to the Housing Board. Exs.B-2 to B-93 are all such receipts for the

payment made in the name of Alagarsamy to the Housing Board. Exs.B-94 to B-108 are the property tax receipts for the payment made by

Alagarsamy. Ex.B-109 is the pass book issued to the revision petitioner''s husband Alagarsamy by the Housing Board. Merely because Exs.B-1

to B-109 have been produced by the respondent, it cannot be said that he has been in occupation of the petition house as a owner as per

arrangement entered into between him and the deceased Alagarsamy, the original allottee of the house and the husband of the revision petitioner

that the respondent occupied the petition house as owner and was paying instalments to the Housing Board as suggested by Alagarsamy.

Though it is stated for the respondent that right from 1978 on the same understanding he paid the instalments due and payable by original allottee

Alagarsamy to the Housing Board and also paid Rs. 10,000/- to Alargarsamy, it does not stand to reason as to why he did not make necessary

application before the Housing Board for transfer of the allotment to his name.

As stated for the revision petitioner, the respondent could have paid the instalments to the Housing Board from and out of the rental amount

payable by him and after making the balance amount by way of rent to the deceased Alagarsamy and on his death in 1989, to the revision

petitioner and only to facilitate the payment by way of instalments to the Housing Board Exs.B-1 to B-93 issued to the original allottee

Alagarsamy, could have been entrusted by Alagarsamy to him. Similarly, the property tax have also been paid in the name of the original allottee

from and out of the rental amount as per Exs.B-94 to B-109.

In the agreement Ex.B-110 dated 3.10.1990 it is claimed that the revision petitioner has agreed to sell the petition house to the respondent for

a sum of Rs. 50,000/- and that she also received Rs. 1,000/- as advance and she has to execute the sale deed on or before 1.1.1991 after

receiving the balance amount of Rs. 49,000/-. Ex.B-110 is the unregistered document. On the basis of Ex.B-110, the respondent sent letter under

Ex.B-111 dated 5.12.1990 to complete the contract. If really, the respondent was allowed to occupy the petition house in the capacity as owner

by the deceased Alagarsamy, the original allottee by the Housing Board and after receiving sum of Rs. 10,000/- by Alagarsamy and as such the

respondent has been in occupation of the petition house by paying instalments to the Housing Board and the property tax to the Corporation, it

does not stand to reason as to why another agreement under Ex.B-110 has been executed between the respondent and the revision petitioner to

sell the petition house for Rs. 50,000/- by the revision petitioner. Even assuming such agreement came into existence and not forged as stated by

the revision petitioner, admittedly, no suit has been filed claiming specific performance of the agreement of sale pursuant to Ex.B-110. Therefore, in

any view of the matter, it cannot be said that the respondent has been in occupation of the petition house as an owner.

By Exs.A-1 to A-10, the revision petitioner has proved that she is the owner of the petition premises. Though as per further evidence adduced

after remand of the matter by this Court, the respondent in his further evidence has spoken about the agreement Ex.B-110 dated 3.10.1990, it is

not mentioned in the notice caused by the respondent through counsel under Ex.A-12 dated 28.2.1991. Therefore, there is no truth in the case of

the respondent that the revision petitioner entered into agreement under Ex.B-110 to sell the petition house for Rs. 50,000/-. Therefore, the denial

of title in respect of the petition house to the revision petitioner by the respondent cannot said to be bona fide and on that ground he is to be

evicted from the petition house.

As regards the wilful default in payment of rent, though in paragraph 4 of the Rent Control Original Petition, it is stated that the respondent has

committed default in paying the rent from September 1989 onwards, but in paragraph 7 it is clearly set out that the respondent is in arrears of rent

for 5 months from November, 1990 to March, 1991 amounting to Rs. 2,500/-. Whether default is from September, 1989 onwards or from

November, 1990 to March 1991 that does not matter much in view of the fact admittedly no rent is paid by the respondent to the revision

petitioner and particularly after the death of her husband on 27.11.1989. In the lawyer notice Ex.A-11 caused by the revision petitioner also it is

only stated that the respondent failed to pay the rent wilfully for the months of November and December 1990 at the time of the issuance of notice

and in the Rent Control Original Petition filed on 14.3.1991, it is stated that the respondent failed to pay the rent for the months of November,

1990 to March, 1991 and as such, it is clear that the respondent has committed wilful default in payment of rent from November, 1990 to March,

1991 and there have been supine indifference and callousness on his part in not paying the rent to the said months and by denying the title of the

petition house itself to the revision petitioner. Therefore, the finding recorded by the learned Rent Control Appellate Authority is erroneous and not

based on the materials and ample evidence available on record in favour of the revision petitioner and as such, such order is to be set aside.

In the result, this Civil Revision Petition is allowed with cost setting aside the judgment and decree dated 27.7.2000 made in R.C.A. No. 87 of

1993 by the learned Rent Control Appellate Authority restoring the order of eviction dated 30.4.1993 made in R.C.O.P. No. 136 of 1991 passed

by the learned Rent Controller on the ground of wilful default in payment of rent and for denial of title.