Smt. S. Kannammal vs A. Rajagopala Chettiar

S. Tamilvanan, J.—This Civil Revision Petition has been preferred by the Petitioner herein u/s 25 of the Tamil Nadu Buildings (Lease and

Rent Control) Act against the order dated 26.02.2010 made in RCA. No. 22 of 2008 on the file of the III Additional Subordinate Judge,

Coimbatore confirming the judgment and decree dated 19.11.2007 made in RCOP. No. 124 of 2004 on the file of the I Additional District

Munsif, Coimbatore.

Learned Counsel appearing for the Petitioner submitted that the Petitioner herein is the second wife of late Muthusamy Chettiar who owned a

property, however, the Respondent herein, filed Rent Control Original Petition in RCOP. No. 124 of 2004 against the Petitioner, seeking an order

of eviction u/s 10(2)(i) and 10(3)(a)(i) of Tamil Nadu Buildings (Lease and Rent Control) Act, (herein after referred to as ""the act""). After the trial,

the Rent Controller allowed the petition and ordered eviction against the Petitioner herein. Aggrieved by which, the Petitioner herein preferred Rent

Control Appeal in RCA. No. 22 of 2008. However, the Rent Control Appellate Authority, dismissed the Rent Control Appeal, confirming the

order and decreetal order passed by the Rent Controller.

According to the learned Counsel appearing for the revision Petitioner, though there is a concurrent finding that could be construed as perverse

and the same needs interference by this Court, u/s 25 of the Act. Learned Counsel appearing for the Petitioner submitted that the Petitioner herein

has filed a suit in O.S. No. 680 of 2004 against the Respondent seeking permanent injunction restraining the Respondent herein not to evict or

dispossess her from the property except under due process of law. Subsequently, the Respondent herein filed the RCOP. No. 124 of 2004 and

the Rent Controller decided the RCOP., against the Petitioner, holding that the Petitioner was only a tenant and ordered eviction. On appeal, the

order and decreetal order passed by the Rent Controller was confirmed and the appeal was dismissed by the Rent Control Appellate Authority.

Learned Counsel appearing for the revision Petitioner submitted that the Respondent has not established that the Petitioner was a tenant at any

point of time under the Respondent and that there was any rental agreement between the Petitioner and the Respondent and no other supporting

document was marked by the Respondent to show that the Respondent is the landlord and the Petitioner is tenant under him. However, the court

below held that the Petitioner was a tenant under the Respondent and accordingly ordered eviction against the Petitioner.

Learned Counsel appearing for the Petitioner further contended that the Petitioner Smt. Kannammal was permitted her to be in possession and

enjoyment of the property. In the aforesaid circumstances, the RCOP. could not have been allowed by the Rent Controller, however, the same

was confirmed by the Appellate Authority. Learned Counsel appearing for the Petitioner further contended that the revision Petitioner has

specifically denied the alleged jural relationship between the Respondent and the Petitioner as the landlord and tenant. In the absence of acceptable

evidence to show that the Petitioner was tenant under the Respondent, according to the learned Counsel appearing for the Petitioner, the Rent

Control Appellate Authority could have reversed the finding of the Rent Controller and dismissed the RCOP. In support of her contention, the

learned Counsel appearing for the Petitioner relied on the following decisions:

a) In the unreported judgment in the case of Ka. Kistama Naidu and Ors. v. Pushpa and Ors. made in Second Appeal in S.A. No. 135 of 2007on

21.02.2011 wherein this Court (G. Rajasuria, J.) has held as follows:

...

In Hero Vinoth v. Seshammal, this Court has observed that: (SCC p. 556, para 24) ""(iii) The general rule is that the High Court will not

interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the

courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying

the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ''decision based on no evidence'', it not only refers

to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of

supporting the finding.

b) In the unreported judgment in the case of Hero Vinoth (minor) v. Seshammal made in Appeal (civil) 4715 of 2000 on 08.05.2006 the Hon''ble

Apex Court has held as follows:

In Neelakantan and Others Vs. Mallika Begum, it was held that findings of fact recorded must be set aside where the finding has no basis in any

legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of

the parties. (See: Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others,

c) In the unreported judgment in the case of Durai v. Kamala and Anr. made in Second Appeal in S.A. Nos. 281 and 282 of 2006on .02.2010

this Court (S. Tamilvanan,J.) has held as follows

In Bondar Singh v. Nihar Singh reported in 2003 (2) CTC 635, the Hon''ble Apex court has held as follows

...If the findings of the subordinate courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the

High Court in appeal u/s 100 CPC A High Court cannot shut it eyes to perverse findings of the courts below....

d) In the unreported judgment in the case of Krishna Mohan Kul @ Nani Charan Kul and Anr. v. Pratima Maity and Ors. made on 09.09.2003

the Hon''ble Apex Court has held as follows:

As was noted inYada Rao Dajiba Shrawane (dead) by lrs. v. Nanilal Harakchand Shah (dead) and Ors., if the judgments of the trial court and

the First Appellate Court are based on mis-interpretation of the documentary evidence or consideration of inadmissible evidence or ignoring

material evidence or on a finding of fact has ignored admissions or concession made by witnesses or parties, the High Court can interfere in appeal.

In Neelakantan and Ors. v. Mallika Begum it was held that findings of fact recorded must be set aside where the findings has no basis in any

legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of

the parties.

e) In the unreported judgment in the case of Neelakantan and Ors. v. Mallika Begum made on 29.01.2002 the Hon''ble Apex Court has held as

follows:

...It is well settled that the High Court while considering the matter in exercise of its jurisdiction in Second Appeal or Civil Revision would not

reverse the finding of fact as recorded by the court below. But it is not an absolute proposition. In a case where the finding is recorded without any

legal evidence on the record or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the

parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view...

Per contra, learned Counsel appearing for the Respondent submitted that the decisions are not applicable to the facts and circumstances of this

revision. There was a compromise decree passed in I.A. No. 206 of 2004 on 29.03.2004 and a certified copy of the decree was filed as Ex.P1.

Learned Counsel appearing for the Respondent submitted that suit in O.S. No. 448 of 1979 was filed by the Respondent herein against

Muthusamy Chettiar and others for partition. On 29.03.2004, a compromise memo was filed by the parties to the suit before the Additional

District Judge, Coimbatore. Based on the memo of compromise, consent decree was passed by the said court. As per the compromise decree, it

is seen that Muthusamy Chettiar died, subsequently, his legal representatives were brought on record. Admittedly, the Petitioner herein was not

shown as one of the legal representatives of Muthusamy Chettiar. Even the Petitioner herein has not claimed status of legal heir of Muthusamy

Chettiar. Learned Counsel appearing for the Respondent submitted that pursuant to the consent decree passed by the court below, on

29.03.2004, the property relating to the RCOP. was allotted to the Respondent herein. The learned Counsel appearing for the Respondent relied

on the following decisions:

a) In the case of D. Velusamy v. D. Patchaiammal reported in 2010 (6) CTC 216 the Hon''ble Apex Court in para 34 has held as follows:

In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get

such benefit the conditions mentioned by us above must be satisfied and this has to be proved by evidence. If a man has a ''Keep'' whom he

maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.

b. In the case of Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, the Hon''ble Apex Court has held as follows:

...The language of Section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions ''appeal''

and ''revision'' are employed in the statute. Quite obviously, the expression revision is meant to convey the idea of a much narrower jurisdiction

than that conveyed by the expression ''appeal''. In fact it has to be noticed that u/s 25 the High court calls for and examines the record of the

appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy ''itself'' u/s 25 appears to be

that the power conferred on the High Court u/s 25 is essentially a power of superintendence. Therefore, despite the wide language employed in

Section 25 the High Court quite obviously should not interfere with findings of fact merely because to does not agree with the finding of the

subordinate authority. The power conferred on the High Court u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as

narrow as the revisional power of the High Court u/s 115 of the CPC but in the words of Untwalia,J., in Dattonpant Gopalvarao Devakate Vs.

Vithalrao Maruthirao Janagaval, "" it is not wide enough to make the High Court a second court of first appeal.

In the instant case, it is not in dispute that the Petitioner herein had filed a suit in O.S. No. 680 of 2004, wherein the Petitioner sought relief of

injunction. It is an admitted fact that the revision Petitioner has not claimed title to the property, the rent control premises. As per Ex.P1/certified

copy of the consent decree, it is seen that there was a partition arrangement, accordingly the consent decree was passed in favour of the

Respondent and others. Learned Counsel appearing for the Respondent submitted that the RCOP. premises was allotted to the share of the

Respondent. As per the compromise decree, the Petitioner herein filed the aforesaid suit in O.S. No. 680 of 2004 seeking injunction not to

dispossess or evict her from premises except under due process of law and therefore as she was tenant under Muthusamy Chettiar, the

Respondent who was allotted the premises, as per the consent decree filed in RCOP. before the court below and the Rent Controller passed an

order of eviction in RCOP. No. 124 of 2004, the same was confirmed by the Rent Control Appellate Authority and the appeal was dismissed.

It is a well settled proposition of law that in a revision, this Court can interfere with the findings of the court below, if the finding is perverse. A

finding could be perverse if it is against the evidence available on record or without supported by evidence. In case of material irregularity or

miscarriage of justice, this Court can interfere with the findings of the court below. However, in a revision, this Court cannot interfere on the ground

of re-appreciation of evidence as that of an appellate court.

In the aforesaid circumstances, it is not open to the Petitioner to challenge the concurrent findings of the court below. As contended by the

learned Counsel appearing for the Respondent, there must be substantial or subsisting right in favour of the Petitioner in the premises which is the

subject matter in the Rent Control Original Petition, otherwise the court cannot interfere with the same. In order to establish such a right, the

Petitioner has not produced any supporting document acceptable by any competent court. Without approaching the civil court to establish such a

right, the Petitioner cannot agitate the concurrent findings of the court below.

Admittedly, the Petitioner is in possession and enjoyment of the premises and she has not claimed the title of the premises and she has claiming

right only through late Muthusamy Chettiar. In the consent decree, the legal heirs of Muthusamy Chettiar are parties and admittedly the revision

Petitioner herein is not a legal heir of Muthusamy Chettiar. Without any subsisting legal right to the property, the Petitioner is not entitled to raise a

defence that she was second wife of late Muthusamy Chettiar and as such she was permitted by him to occupy the premises. The aforesaid

defence raised by the Petitioner is neither legal nor supported by any materials. The Petitioner has stated that there is no jural relationship between

the Respondent and the Petitioner as landlord and tenant, though the Petitioner has not stated, what is her legal right in the property. When she is

claiming right through the deceased Muthusamy Chettiar, she must legally substantiate her claim. The Petitioner is claiming right only through late

Muthusamy Chettiar, though she is not a legal heir. In the suit in O.S. No. 448 of 1979, between the Respondent, legal heir of Muthusamy Chettiar

and others, there was a compromise decree, whereby the property was allotted to the share of the Respondent. According to the Respondent, the

Petitioner herein was only a tenant under late Muthusamy Chettiar and as per the compromise decree, the Respondent become the landlord and

that was accepted by the courts below. Where there is no legal right established by the Petitioner in the property, she cannot raise a defence

against the concurrent finding stating that there is no jural relationship between the Respondent and the Petitioner as landlord and the tenant.

Therefore, I am of the view that there is no illegality or material irregularity in the impugned judgment and decree so as to warrant any

interference by this Court in this revision. Accordingly, the revision petition is liable to be dismissed.

In the result, this Civil Revision Petition is dismissed. Consequently, connected M.P. is also closed. No order as to costs.

Considering the facts and circumstances of the case, the Petitioner is directed to vacate and hand over the possession of the premises within

three months from the date of receipt of a copy of this order.