T.G. Balasundaram vs Jothibai

A.C. Arumugaperumal Adityan, J.—The tenant in R.C.O.P. No. 28 of 1993 on the file of the learned Rent Controller, Kancheepuram, who

had lost his defence both before the learned Rent Controller as well as before the learned Rent Control Appellate Authority in R.C.A. No. 2 of

2004, is the revision petitioner herein. R.C.O.P. No. 28 of 1993 was filed by the revision petitioner''s own sister Jothibai Ammal as a landlord in

respect of the petition schedule property for eviction on the ground of denial of title, willful default and owners'' occupation. The petition was

resisted by the respondent/tenant, the revision petitioner herein by way of counter alleging that there was no landlord-tenant relationship existed

between the petitioner and the respondent.

Before the Trial Court, P.Ws.1 to 4 were examined. Exs.A.1 to A.14 were marked on the side of the petitioner/landlord. D.W.1 was examined

and Exs.B.1 to B.27 were marked on the side of the respondent/tenant.

After giving due consideration to both oral and documentary evidence, the learned Rent Controller, Kancheepuram, has come to a conclusion

that the petitioner/landlord is entitled for an order of eviction on the ground of denial of title and allowed the petition by giving two months time for

the tenant to vacate and hand over the vacant possession to the landlord. Aggrieved by the findings of the learned Rent Controller, the tenant

preferred an appeal in R.C.A. No. 2 of 2004 before the learned Rent Control Appellate Authority/Subordinate Judge, Kancheepuram, who after

due deliberation to the learned Counsel for the appellant as well as the learned Counsel for the respondent has held that there is no materials to

interfere with the findings of the learned Rent Controller, and accordingly dismissed the appeal thereby confirming the order of the learned Rent

Controller in R.C.O.P. No. 28 of 1993, against which, the tenant has preferred this revision.

Heard Mr. S.M. Loganathan, the learned Counsel appearing for the revision petitioner and Mr. S.D.N. Vimalanathan, the learned Counsel

appearing for the respondent and considered their respective submissions.

The revision has been preferred against a concurrent finding of the Court below in a Rent Control proceedings relying on Ex.A.3, will. The

landlord, the sister of the revision petitioner herein for the tenant, who claimed that the petition schedule property has been executed in her behalf

by her mother and that both her father and her brother/the revision petitioner herein were occupying the petition schedule premises under Ex.A.4-

rental agreement dated 06.01.1992. The learned Counsel Thiru. S.M. Loganathan, appearing for the revision petitioner would contend that both

the Courts below have erroneously come to a conclusion that the revision petitioner is the tenant on the basis of Ex.A.4, dated 06.01.1992, an

unregistered lease agreement for 18 months which is hit by Section 17 of the Registration Act, 1908. u/s 17(d) of the Registration Act, 1908,

leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent is compulsorily registrable. Relying

on the above provision of law, the learned Counsel for the revision petitioner would contend that since Ex.A.4, lease agreement is for 18 months

and is not a registered document is non-est under the eye of law. The effect of non-registration of documents required to be registered is

enumerated u/s 49 of the Registration Act, 1908, which is as follows:

No document required by Section 17 [or by any provision of the Transfer of Property Act, 1882 (IV of 1882,] to be registered shall -

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (IV of

1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act,

1877 (I of 1877), or as evidence of part - performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882 (IV

of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument.

So as per the provision of Section 49 of the Registration Act, 1908, a document, which is required to be registered u/s 17 of the Registration Act,

1908, can be received in evidence for collateral purposes.

The learned Counsel for the revision petitioner relied on a decision of this Court reported in 1974 I MLJ 473 (C.S. Kumaraswami Goundar v.

Aravagiri Goundar and Anr.), would contend that Ex.A.4, an unregistered lease deed in this case, cannot be looked into even for the collateral

purpose. The relevant observation in the above cited decision at page 419 runs as follows:

Therefore a collateral transaction within the meaning of the proviso to Section 49 of the Act means a transaction other than the transaction affecting

immovable property, but which is in some way connected with it. In Ramlaxmi Ranchhodlal Vs. The Bank of Baroda Ltd., . The Bombay High

Court pointed out:

The expression ''collateral'' transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a

main transaction. The root meaning of the word ''collateral'' is running together or running on parallel lines. The transaction as recorded would be a

particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what

may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence a collateral transaction, a transaction which

may be said to be a part and parcel of the transaction but none the less a transaction which runs together with or on parallel lines with the same.

At this juncture, the facts of the said case cited is also relevant. The plaintiff in O.S. No. 59 of 1962 on the file of the Court of the Subordinate

Judge, Erode, is the appellant before this Court. The appellant and one Nallaswami Goundan were brothers, being the sons of one Sengoda

Goundar. There was a partition entered into between the appellant and Nallaswami Goundan in respect of all the joint family properties on 24th

November, 1924 under Ex.B-1-partition deed. The said deed of partition was effected with the help of mediators and after the partition, the

sharers took the possession of their respective shares allotted to them in the said partition deed. There was a provision contained in the said deed

of partition as to the effect that, if any of the parties went back on the partition arrangement, he would have to pay a sum of Rs. 5,000/- to the

other. In 1932 Nallaswami Goundan died and the first defendant in the suit is the only son of Nallaswami Goundan. The second defendant in the

suit is a subsequent alienee of survey No. 122/B, which is item No. 2 in the plaint schedule. O.S. No. 59 of 1962 was filed for partition of the

properties originally belonged to the appellant and the deceased Nallaswami Goundan. According to the appellant, the partition entered into

between the parties on 24th November, 1924 was not intended to be acted upon between the parties and that the agreement had always been

treated as a matter of convenience subject to alteration between them. He also put forward another contention that a power had been reserved to

ask for a repartition of the properties and that itself was evidence of the fact that no final partition had been effected on 24th November, 1924.

The defendants have filed written statement and issues have been framed. On behalf of the appellant, it was contended that Ex.B.1-partition

deed was not registered, though it require registration u/s 17(i)(b) of the Registration Act. For want of registration that document was not

admissible in evidence u/s 49 of the Registration Act and therefore the appellant was entitled to a decree for partition afresh. The first defendant

claimed that he had prescribed title to the plaint schedule property by way of adverse possession. This claim of the first defendant was

controverted by the learned Counsel appearing for the appellant in that case that mere adverse possession is not enough, since the parties being the

co-owners, there must be a specific plea of ouster, which has not been established in the said case. It was further contended on behalf of the

appellant that Ex.B.1 cannot be admitted in evidence even for the collateral purpose of finding out the character of the possession of the properties

allotted to the shares of Nallaswami Goundan under Ex.B.1 in the hands of Nallaswami Goundan and after his death in the hands of the first

defendant. Only under such circumstances, it has been held in that suit that the appellant cannot take shelter under proviso to Section 49 of the

Registration Act.

The facts of the above said case will not be applicable to the present facts of the case because, the revision petitioner herein has admitted in

Ex.A.4 that his tenant is the respondent herein viz., Jothibai Ammal. The concurrent finding of the Courts below is that there was a landlord-tenant

relationship existed between the petitioner/Jothibai and the respondent/T.G.Balasundaram under Ex.A.4.

I am of the view that for the purpose of finding whether there was any jural relationship between the petitioner and the respondent, Ex.A.4 can

be relied on. Further, it is pertinent to note that as per the order passed by this Court in C.R.P. No. 1396 of 2002, Ex.A.4 was ordered to be

received in evidence. So, the contentions of the learned Counsel appearing for the revision petitioner that Ex.A.4 cannot be looked into, even for

the collateral purpose, u/s 49 of the Registration Act, since it is not been registered u/s 17 of the Registration Act, 1908 cannot hold any water.

Even though the title cannot be gone into by the Rent Control Court, I am of the view that incidentally, the learned Rent Controller can go into

question of title for the purpose of establishing whether the landlord-tenant relationship has been proved or not? The petitioner in the R.C.O.P. to

show that she is the landlord of the petition schedule building had filed Ex.A.3 will dated 22.08.1990 said to have been executed by her mother

and has also adduced evidence to prove the will as required under law. While exercising the powers of revision, this Court need not go into the

evidence adduced in R.C.O.P. proceedings unless, it is proved that the findings of the Courts below are perverse in nature and against material

evidence, this Court cannot interfere with the concurrent findings of the Court below. The dictum in J.J. Lal Pvt. Ltd. and Others Vs. M.R. Murali

and Another, and the findings in Mst. Kirpal Kaur Vs. Bachan Singh and Others, differ from the facts of the present case. In J.J. Lal Pvt. Ltd. and

Others Vs. M.R. Murali and Another, , u/s 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the eviction ordered on the

ground of denial of title. In a case where, the landlord allottee from Municipal Corporation filed the suit against the tenant on the ground of default

in payment of rent, in which, the tenant had threatened to evict him, while he was willing to pay rent to Corporation, held would not amount to ""not

bona fide"" denial of title.

In Mst. Kirpal Kaur Vs. Bachan Singh and Others, , the admissibility of document under proviso to Section 49 was considered and held that

when there was an agreement between the parties cannot be admitted in evidence to show the nature of possession of one of the parties

subsequent to its date. The party being in possession before the date of the document to admit it in evidence to show the nature of her possession

subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse

possession into a permissive possession and, therefore, to give effect to the agreement contained in it which admittedly cannot be done for want of

registration. Admittedly, in the case on hands, there is no claim of an adverse possession by the tenant. On the other hand, under Ex.A.4, he has

admitted that Jothibai, the respondent herein is his landlord. The learned Counsel for the respondent relying on 2006 (4) CTC 517 (K. Bhuvanesh,

Petitioner v. Rakman Bibi and Ors. respondents) had contended that there is no bar under the provisions of the Tamil Nadu Buildings (Lease and

Rent Control) Act, 1960 as amended by Act 23/1973 for the Rent Controller to prima facie decide title of landlord to decide whether the denial of

title is bona fide or not. The exact observation in the above said ratio decidenti runs as follows:

It is true that the Rent Controller in the present case has gone into the question of title, but he has clearly observed in his order that the ownership

of the petition building should not be gone into by him, still he could go into the question of prima facie title of the petition building. Therefore what

was decided by the Rent Controller is only a prima facie title of the landlord and not the real title of the petition property which can be gone into by

the Trial Court. Therefore on this ground, the revision petition cannot be adjudicated in favour of the tenant. That apart, the question of bona fide

or otherwise of the denial of title by the revision petitioner was gone into by both the authorities and a finding was rendered that the denial is not

bona fide in the light of Exs.P-4 and P.5. Therefore once it is established that the denial of title is not bona fide, then the tenant has to face the rent

control proceedings but much to his detriment.

Under such circumstances, I do not find any perverseness in the findings of the learned Rent control Appellate Authority in R.C.A. No. 2 of 2004

to warrant any interference from this Court.

In fine, C.R.P. No. 1239 of 2005 is dismissed confirming the findings of the learned Rent Control Appellate Authority in R.C.A. No. 2 of

2004 on the file of the Rent Control Appellate Authority, Kancheepuram. Taking into consideration the close relationship between the parties,

there is no order as to costs. At this juncture, the learned Counsel for the revision petitioner Thiru. S.M. Loganathan would represent that the

revision petitioner''s son is an Advocate and is practising as a lawyer of this Court and having his office in the petition schedule building and that he

may be given time till 31.05.2008. For which course, there is no objection by the other side. The learned Counsel for the revision petitioner

undertakes to file an affidavit to that effect within a week.