Saral Saroja vs Simson

A. Selvam, J.—This second appeal has been directed against the concurrent Judgments passed in Original Suit No. 7 of 1990 by the

District Munsif Court, Ambasamudram and in Appeal Suit No. 7 of 1994 by the Sub Court, Ambasamudram.

The respondent herein as plaintiff has instituted Original Suit No. 7 of 1990 on the file of the trial Court for the reliefs of declaration, recovery of

possession and also for future mesne profits, wherein the present appellant has been shown as sole defendant.

It is averred in the plaint that the suit property is originally belonged to the father of the plaintiff by name Kovil Pichai Nadar and he enjoyed the

same uninterruptedly for more than a statutory period. The plaintiff has purchased the suit property under a registered sale deed dated 26.12.1988.

After purchase, the plaintiff has asked the defendant to vacate the suit property. But the defendant has agreed to enjoy the suit property on a

monthly rental of Rs. 75/- and also given assurance to vacate the suit property within six months. The defendant has paid monthly rent upto April

1989 and thereafter she failed to pay monthly rent. The plaintiff has issued a legal notice on 13.10.1989 to the defendant and even after receipt of

the same, she has failed to vacate the suit property. She has also given a legal notice contending false averments. It is false to say that the suit

property has been allotted to the husband of the defendant in a family arrangement. It is also equally false to say that the husband of the defendant

has improved the suit property by way of spending Rs. 20,000/-. No family arrangement has been made as stated on the side of the defendant.

Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.

It is averred in the written statement filed on the side of the defendant that it is false to contend that the plaintiff has purchased the suit property

under a registered sale deed dated 26.12.1988. The suit property has been given to the husband of the defendant in a family arrangement and

subsequently he made improvements and lived along with his family members. The husband of the defendant has served in a mill and he passed

away on 21.03.1988 and after his demise, the plaintiff has approached the defendant to give the job of her husband to him and the job of the

defendant has been given to her brother by name Selvaraj. Since the demand made by the plaintiff has not been conceded by the defendant, the

father of the plaintiff has created a false document dated 26.12.1988. The defendant has been residing in the suit property as of its rightful owner.

It is false to say that the defendant has agreed to pay monthly rental of Rs. 75/-. The defendant has given a suitable reply notice to the plaintiff. It is

also equally false to say that in a portion of the suit property, the house mentioned in the plaint is situate. There is no merit in the suit and the same

deserves dismissal.

On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after scrutinising both the oral and

documentary evidence has decreed the suit only in respect of the reliefs of declaration and recovery of possession. Against the Jugment and decree

passed by the trial Court, the defendant as appellant has preferred Appeal Suit No. 7 of 1994 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal, whereby and

where under confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments passed by the Courts below, the

present second appeal has been filed at the instance of the defendant as appellant.

At the time of admitting the present second appeal, the following substantial question of law has been framed for consideration:

Whether in any event the appellant is entitled to the benefits of Section 51 of the Transfer of Property Act?

At the time of hearing arguments, the following additional substantial question of law has been formulated for consideration:

Whether the suit for eviction at the instance of landlord against the tenant is maintainable in a civil Court without obtaining a finding from the Rent

Controller in the Landlord''s Rent Control Original Petition for eviction that the denial of tenancy by the tenant is mala fide?

The sum and substance of the case of the plaintiff is that the suit property is originally belonged to Kovil Pichai and he enjoyed the same for

more than a statutory period and the plaintiff has purchased the same under a registered sale deed dated 26.12.1988 and subsequently asked the

defendant to vacate the suit property and the defendant has agreed to enjoy the same for a period of six months on a monthly rental of Rs. 75/-

and she paid monthly rent upto April 1989 and subsequently she committed default and thereafter the plaintiff has chosen to given notice dated

13.10.1989 and after receipt of the same, the defendant has given a false reply notice. Under the said circumstances, the present suit has been

instituted for the reliefs sought for in the plaint.

Per contra, it has been contended on the side of the defendant that the suit property has been given to the husband of the defendant in a family

arrangement and he served in a mill and by way of spending Rs. 20,000/- he improved the suit property and after his demise the defendant and her

family members are living in the suit property as rightful owners and it is false to say that the defendant has agreed to enjoy the suit property for a

period of six months on a monthly rental of Rs. 75/- and further it is false to say that in a portion of the suit property, the house mentioned in the

plaint is situate and therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint.

As enunciated earlier, the trial Court has granted the reliefs of declaration and recovery of possession in favour of the plaintiff. The first

appellate Court has confirmed the Judgment and decree passed by the trial Court. Under the said circumstances, the Court has to analyse as to

whether the concurrent Judgments passed by the Courts below are perfectly correct or the same need interference?

Even though at the time of admitting the present second appeal a substantial question of law has been formulated to the effect as to whether the

appellant/defendant is entitled to get the benefits of Section 51 of the Transfer of Property Act, the real substantial question of law emerged in the

second appeal is as to whether the present suit is legally maintainable in a Civil Court without getting a finding u/s 10 of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960.

Even at the risk of jarring repetition the specific case of the plaintiff is that the suit property is originally belonged to his father viz., Kovil Pichai

and he purchased the same under a registered sale deed dated 26.12.1988 and subsequently asked the defendant to vacate the suit property and

the defendant has agreed to enjoy the suit property for a period of six months on a monthly rental of Rs. 75/- and upto April 1989 she paid

monthly rent properly and thereafter committed default in payment of monthly rent and thereafter a notice dated 13.10.1989 has been given and

the defendant after receipt of the same has given a legal notice stating that the suit property has been given to her husband in a family arrangement.

From the close reading of the averments made in the plaint, the Court can easily discern that the specific case of the plaintiff is that the

defendant has been enjoying the suit property as a tenant of the plaintiff and the defendant has denied his title and also claims right of permanent

tenancy over the suit property. Before analysing the rival submissions advanced by the learned Counsel appearing for both sides, it would be

apropos to look into the provision of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the same reads as follows:

Eviction of tenants.-(1) A tenant shall not be evicted whether in execution of a decree of otherwise except in accordance with the provisions of

this Section or Sections 14 to 16:

Provided that nothing contained in the said Sections, shall apply to a tenant whose landlord is the Government:

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the

denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court

and the Court may pass a decree for eviction on any of the grounds mentioned in the said Sections, notwithstanding that the Court finds that such

denial does not involve forfeiture of the lease or that the claim is unfounded....

The said provision can be vivisected as follows:

(a) A tenant shall not be evicted either in execution of a decree or otherwise and he or she can be evicted either under the provisions of Section 10

or under Sections 14 to 16 of this Act.

(b) The provisions of Section 10 of this Act are not applicable in a case, where landlord is Government.

(c) If a tenant denies the alleged title of the landlord or claims right of permanent tenancy, the only Course open to the landlord is to file a petition

under this Section so as to get a finding to the effect as to whether such a denial or claim is bona fide. If the Rent Controller gives a finding to that

effect, the next course open to the landlord is to file a suit for eviction in a civil court and then only the civil Court is competent to pass a decree for

eviction on any of the grounds mentioned in this section.

With these legal backdrops, the Court has to further analyse the rival case of the plaintiff and defendant.

The learned Counsel appearing for the appellant/defendant has laconically contended that the specific case of the plaintiff is that the defendant

has been enjoying the suit property as his tenant on a monthly rental of Rs. 75/- and the specific case of the defendant is that the suit property has

been given to her husband in a family arrangement and he made improvements by way of spending Rs. 20,000/- and after his demise, the

defendant and her family members are enjoying the suit property as of its rightful owners and therefore, the defendant claims right of permanent

tenancy and she also denies the alleged title of the plaintiff. Under the said circumstances, the plaintiff ought to have filed a petition u/s 10(1) of the

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. But the plaintiff has failed to invoke the said provision and directly filed the present suit

for the reliefs of declaration, recovery of possession and also for future mesne profits. Under the said circumstances the Civil court has no

jurisdiction to entertain the present suit and therefore, the concurrent Judgments and decrees passed by the Courts below are totally illegal and also

void. In support of his contention, he has drawn the attention of the Court to the following decisions:

(a) In M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., the Honourable Apex Court has held as follows:

What is stated in the second provision is Section 10(1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of

eviction. But the jurisdiction cannot be invoked otherwise than as stipulated in the second proviso. This means that the condition precedent to the

exercise of jurisdiction by a Civil court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the

Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the

Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these

conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or

Sections 14 to 16, notwithstanding that the Court has found that the tenant''s denial of the landlord''s title does not involve forfeiture of the lease,

or, his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a

tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.

Further it is held that.... It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its

invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral

proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at

the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under

consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court

of Monghyr was coram non judice, and that its Judgment and decree would be nullities.

The Honourable Apex Court has vividly held that if the concerned tenant has denied title of the landlord, or claims right of permanent tenancy, the

concerned landlord ought to have obtained a finding u/s 10(1) (second proviso) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960

and only after getting necessary finding, he can institute a suit in a civil forum so as to evict the tenant under any of the grounds mentioned in the

said section. Further it is held that a decree passed by a Court without jurisdiction is nothing but nullity and defect of jurisdiction whether it is

pecuniary or territorial can be raised even at the stage of execution or in collateral proceedings. Further the Court, which passed a decree is

nothing but coram non judice (before a Judge or Court that is not the proper one, or that cannot take legal cognizance of the matter).

In R.M. Sundaram @ Meenakshi Sundaram and Anr. v. The Correspondent, National Elementary school, R.M. Sundaram @ Meenakshi

Sundaram and another Vs. The Correspondent, National Elementary School, Pundarigakulam, Vadakarai, Nagapattinam, this Court has held that

denial of title of landlord by tenant - Rent Controller has to give finding that such denial of title is bona fide. Such finding is condition precedent for

a Civil Court to decide title and direct eviction"". Further this Court has held that ""there are two provisos to Section 10(1) of the Tamil Nadu

Buildings (Lease and Rent Control) Act, 1960 and the Second Proviso says that where the tenant denies the title of the landlord or claims right of

permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall

be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the

said Sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.

In fact the decision reported in M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., . acts as a precursor of the Judgment

rendered by this Court. From the conjoint reading of the decisions referred to supra, the ultimate corollary is that if a tenant denies the alleged title

of his or her landlord or claims right of permanent tenancy, the next course open to the landlord is to file a petition under the second proviso of

Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the Rent Controller should give a necessary finding to the

effect as to whether the denial or claim is bona fide or not and after getting a finding to that effect, a civil suit can be filed for eviction of the tenant

on any of the grounds mentioned in the said section or under Sections 14 to 16.

In the instant case, as elucidated earlier, the defendant has clearly denied the alleged title of the plaintiff and she also sets up a permanent

tenancy over the suit property. Since the defendant has clearly denied the title of the plaintiff and also sets up permanent tenancy over the suit

property, the plaintiff ought to have invoked the second proviso of Section 10(1) of the said Act and only after getting a finding from the concerned

Rent Controller, he can file a suit for eviction. But the plaintiff has failed to follow the aforesaid legal procedure. Since the plaintiff has failed to

follow the aforesaid legal procedure, it is needless to say that the trial Court as well as the first appellate Court are nothing but corams non judice

and the concurrent Judgments passed by the courts below are also nothing but nullities.

The additional substantial question of law formulated in the present second appeal is as to whether the present suit is not legally maintainable in

view of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It has already been discussed in detail that without

invoking the said provision, the present suit is not legally maintainable. Therefore, it is pellucid that the additional substantial question of law

formulated in the present second appeal is decided in favour of the appellant/defendant.

Now the Court has to look into the fatuous exercises made on the side of the respondent/plaintiff.

The learned Counsel appearing for the respondent/plaintiff has vehemently contended that the respondent/plaintiff is the absolute owner of the

suit property and the appellant/defendant has been enjoying the same as a tenant and since the appellant/defendant has denied the title of the

respondent/plaintiff, the present suit has been instituted and the same is legally maintainable and further the suit property is not only a building but

also a vacant site and on that ground also the present suit is legally maintainable and the Courts below after considering the rival evidence adduced

on either side, have rightly rejected the contention urged on the side of the appellant/defendant and therefore, the concurrent judgments passed by

the courts below do not warrant interference.

In fact, the learned Counsel appearing for the respondent/plaintiff has accited the following decisions in support of his contention.

(a) In Subbiah Pannaiyar Vs. Shanmugavelayudham and Others, this Court has held that ""in the present case, the property scheduled in the plaint is

not only a building but also the property where it is situated, i.e., property of an extent of two and a quarter cents and the hut situated therein. The

suit was for a declaration of title in respect of the land and building and the recovery is sought for in respect of the land also. The civil court is

competent to decide on the ownership over the suit property and ownership over the building. That is not something which comes within the

jurisdiction of the Rent Controller. The scope of enquiry under the second proviso to Section 10(1) of the Rent Control Act is confined to the

status of landlord and tenant which has nothing to do with the title to the property. Hence so far as the ownership of the building and the title to the

property is concerned the second proviso to Section 10(1) of the Rent Control Act will not be a bar for filing a civil suit. But the right of the

plaintiffs to recover the building on the basis of the rental arrangement will be barred. At the most, it can be held that the plaintiff will not be entitled

to get recovery of the building and to that extent, the relief cannot be granted.

From the close reading of the decision referred to supra, two things are made clear.

(a) If a suit has been instituted in respect of a building as well as a vacant site, relief can be granted in respect of vacant site.

(b) With regard to building, the relief claimed in the suit cannot be granted.

In the instant case, in the plaint it is averred to the effect that the demised building is situate in a portion of the suit property and the remaining

portion is a vacant site. But in the written statement, at paragraph-5 it has been clearly stated that the measurements given to the demised building

in the plaint are totally false. Therefore, a primordial duty is cast upon the plaintiff to prove that the demised building is situate in a portion of the suit

property and the remaining portion of the suit property is a vacant site. But the plaintiff has not proved the same. Even assuming without conceding

that the denial made in the written statement is not genuine, so far as the building mentioned in the plaint is concerned, the present suit is not legally

maintainable in view of the decision rendered by this Court.

(b) In Sankarlal Jain v. R.Kalavathi Ammal and two Ors. 1990 (1) LW 97 this Court has held that ""as per exemption mentioned in Section 30 (ii)

of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, a civil suit is legally maintainable.

Of course, it is true that as per Section 30 of the said Act, a Civil Suit is legally maintainable, since exemption has been granted therein. The

suit property does not come within the purview of the said section and therefore, the said decision is not applicable to the facts of the present case.

(c) In S. Jaganathan Rao and Others Vs. M.G. Vital Rao, this Court has held that ""when the defendants 2 to 5 had specifically denied the title of

the respondent herein, then, there is no question of the existence of landlord and tenant relationship between the parties. Under the said

circumstances civil suit is maintainable."" In fact, the decision rendered by the Honourable Apex Court reported in M/s. East India Corporation Ltd.

Vs. Shree Meenakshi Mills Ltd., . has not been brought to the notice of this Court and under the said circumstances, this Court has held that the

civil suit is maintainable as stated above and therefore, the finding given by this Court in the decision referred to supra cannot be followed.

(d) In Dhandapani (Died), Lalitha and Shanthi Vs. Karpakam, D. Maheswari and D. Seshasai, this Court has held that ""on the point of denial of

title by the tenant, the civil suit is maintainable, without resorting to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act,

1960"", wherein also the decision rendered by the Honourable Apex Court in M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd.,

has not been brought to the notice of the Court. Under the said circumstances, this Court has held as stated supra and therefore, the dictum

mentioned in the said decision cannot be attuned in the present cast.

(e) In Ramesh Chand Ardawatiya Vs. Anil Panjwani, the Honourable Apex Court has held that ""the concerned dispute does not come within the

ambit of Section 75 (1) or 75(2) of Rajasthan Act and therefore, Civil court''s jurisdiction is not excluded.

In the instant case, as per second proviso of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, concerned Civil

court is having jurisdiction only on the basis of finding given by the concerned Rent Controller and therefore, the jurisdiction of Civil Court is

impliedly ousted initially and it gets its jurisdiction only on the basis of the finding given by the Rent controller. Therefore, it is quite clear that the

facts and circumstances mentioned in the decision referred to supra are not suitable to the present case.

(f) In Shri Ramendra Kishore Biswas Vs. The State of Tripura and Others, the Honourable Apex Court has held that ""the relevant Service Rules

neither expressly nor by implication have taken away jurisdiction of civil Court to deal with service matter"". Under the said circumstances, it is not

proper at the stage of second appeal to raise a question to the effect that the civil Court has no jurisdiction.

In the instant case, even at the risk of jarring repetition the Court would like to point out that as per second Proviso of Section 10(1) of the

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, jurisdiction of civil court is impliedly barred at initial stage and it gets its jurisdiction

only on the basis of finding given by the concerned Rent Controller and therefore, it is needless to say that the facts and circumstances of the

present case are totally alien to the facts and circumstances of the case mentioned supra and due to that the decision mentioned supra is not

applicable to the present case.

It has already been discussed in detail that the present suit is not legally maintainable in view of the second proviso of Section 10(1) of the

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Therefore, the entire argument advanced by the learned Counsel appearing for the

respondent/ plaintiff is totally sans merit.

The present suit has been instituted for the reliefs of declaration, recovery of possession and also for future mesne profits. The trial Court has

granted a decree for the reliefs of declaration and recovery of possession. The first appellate Court has also confirmed the Judgment and decree

passed by the trial Court. It has already been discussed in detail and ultimately found that the present suit is not legally maintainable. The only

remedy available to the respondent/plaintiff is to file a petition under the second proviso of Section 10(1) of the Tamil Nadu Buildings (Lease and

Rent Control) Act, 1960 so as to get a finding and after getting the same, he has to touch competent civil forum so as to evict the

appellant/defendant under any one of the grounds mentioned in the said section or under Sections 14 to 16. Therefore, viewing from any angle, the

concurrent Judgments passed by the Courts below are liable to be set aside since they are nothing but nullities.

The first substantial question of law formulated in the present second appeal is as to whether the appellant/defendant is entitled to get the

benefits of Section 51 of the Transfer of Property Act. Since additional question of law has been discussed in extenso and decided in favour of the

appellant/defendant, the first substantial question of law formulated in the present second appeal need not be decided.

In fine, this second appeal is allowed without cost. The Judgment and decree passed in Original Suit No. 7 of 1990 by the District Munsif

Court, Ambasamudram, upheld in Appeal Suit No. 7 of 1994 by the Sub Court, Ambasamudram are set aside. The suit filed in Original Suit No.

7 of 1990 on the file of the District Munsif Court, Ambasamudram is dismissed without cost.