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K. Appa Rao Vs. Maragathammal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. Nos. 2504 to 2507 of 1979
Judge
Reported inAIR1981Mad57; (1981)1MLJ71
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10(1) and 14(1); Transfer of Property Act, 1982 - Sections 111
AppellantK. Appa Rao
RespondentMaragathammal and ors.
Appellant AdvocateM. Shamdoss, Adv.
Respondent AdvocateA. Subramania Iyer, Adv.
Cases ReferredVatsala v. Official Assignee
Excerpt:
tamil nadu buildings (lease and rent control) act (xviii of 1960), section 10(1), second proviso--tenant setting up title in third parties--whether permissible.; the petitioner filed revision petition to revise the order of the appellate authority allowing the appeals filed before him by the respondents and dismissing the rent control petitions on the ground that the denial of title of the petitioner by the tenants was bona fide. it was contended by the revision petitioner that in the instant case, the tenants-respondents had set up title not in themselves, but in a third party and that second proviso to section 10(1) of the tamil nadu buildings (lease and rent control) act will not cover such a situation.; the question that arose for consideration was whether the second proviso to..........filed by the petitioner herein. the rent control petitions were dismissed on the ground that the denial of title of the petitioner by the tenant was bona fide. the result of that will be that the petitioner will have to file a suit for the purpose of getting the necessary relief.2. as far as the finding that the denial of title was bona fide is concerned we are of the opinion that there was abundant, material before the appellate authority on the basis of which it could come to the conclusion that the denial of title was bona fide.3. however, what mr. shamdoss, the learned counsel for the petitioner, contends is that the present is not a case to which the second proviso to section 10(1) of the tamil nadu buildings (lease and rent control) act, 1960 will apply. section 10(1) of the.....
Judgment:
1. These petitions have been filed to revise the order of the Appellate Authority functioning under Tamil Nadu Act XVIII of 1960 dated 12th March, 1979, allowing the appeals filed before him by the respondents herein and dismissing the rent control petitions filed by the petitioner herein. The rent control petitions were dismissed on the ground that the denial of title of the petitioner by the tenant was bona fide. The result of that will be that the petitioner will have to file a suit for the purpose of getting the necessary relief.

2. As far as the finding that the denial of title was bona fide is concerned we are of the opinion that there was abundant, material before the Appellate Authority on the basis of which it could come to the conclusion that the denial of title was bona fide.

3. However, what Mr. Shamdoss, the learned Counsel for the petitioner, contends is that the present is not a case to which the second proviso to Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 will apply. Section 10(1) of the Tamil Nadu Act XVIII of 1960, along with (SIC)ts two provisos, reads as follows:

10(1). A tenant shall not be evicted whether in execution of a decree or 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.

According to the learned Counsel for the petitioner, the second proviso has to be read along with the definition of the term 'landlord' occurring in Section 2(6) of the Act, as well as the provision for filing a suit contemplated by the proviso itself. Section 2(6) of the Act defines the expression 'landlord' as follows:

'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, his trustee, executor, administrator, receiver, or guardian, or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.

4. Thus, it will be seen that the definition is an inclusive one and does not actually define the term 'landlord'. Therefore, the inclusive definition adds to the normal concept of landlord certain other categories of persons also. The learned Counsel for the petitioner contends that the denial of title of the landlord contemplated by the second proviso to Section 10(1) will have to be read in the context of the definition of the term 'landlord' occurring in Section 2(6) and that, if so read, it will merely mean denial of the right of the person to file an eviction petition; in other words, to question the maintainability of the petition itself.

5. If it is so understood, the maintainability of the petition can be challenged on several grounds, namely, that the person concerned is not entitled to receive the rent, that the person concerned is not an agent, trustee, executor, administrator, receiver or guardian, and that similar questions might possibly arise in such a context. However, the expression 'denial of title of the landlord, is not peculiar to Tamil Nadu Act XVIII of 1960. It is always known to the law of landlord and tenant and incorporated in the Transfer of Property Act. In fact, Section 111(g) of the Transfer of Property Act provides for forfeiture in case the lessee renounces his character as such by setting up a title in a third parson or by claiming title in himself. Consequently, when the proviso refers to the denial of title of the landlord by the tenant, it means that the tenant, denies that the landlord had any (sic) title or right or ownership or interest in the property. As a matter of fact, even for the purpose of the present case, it is not even necessary to go to that extent, having regard to the very narrow argument addressed before us.

6. The contention of Mr. Shamdoss is that in this particular case the tenants respondents had set up title, not in themselves, but in a third party and that the second proviso to Section 10(1) will not cover such a situation. According to the learned counsel, the second proviso to Section 10(1) will cover only a case where, while denying the title of the landlord, the tenant sets up title in himself or herself. In support of his contention learned Counsel relied on a judgment of Ramaprasada Rao, CJ. in Vatsala v. Official Assignee, rep. the estate of S.V. Namasivayam (1979) 1 M.L.J. 210 : 92 L.W. 126. A perusal of that judgment shows that it supports this contention of the learned Counsel. When the matter came up before one of us, it was felt that the view of the learned Chief Justice on the scope of the second proviso to Section 10(i) was not correct, the matter was directed to be posted before a Bench and that is how the matter has come before us now.

7. In the said judgment, with regard to the scope of the second proviso to Section 10(1), the learned Chief Justice has stated as follows:

It, therefore, it follows that, if the finding of the Rent Controller is that the denial is not bona fide, then the Controller would be entitled to pass an order for eviction. The question that arises in the instant case is whether such a denial as contemplated under the second proviso to Section 10(1) has arisen. The proviso is very clear when it says that the tenant should deny the title of the landlord. It does not say that the tenant can vest the title to the property in his occupation in third parties. This is the concept which is inhered in the principle of jus tertii. It is only in cases where the tenant, while opposing an application for eviction under the provisions of Act XVIII of 1960, sets up title in himself, or herself, the second proviso would come into operation and it is in that context alone the Rent Controller would have jurisdiction to find out whether the denial of title of the landlord and the setting up of such title in himself or herself by the tenant is bona fide or not. I am of the view that it is not open to the tenant to plead taking advantage of the open language of the second proviso to Section 10(1), that the denial as regards the title of the landlord might even mean and include the vesting of the title to the property in a third party. On the other hand, I am of the view that such denial of the title of the landlord would be the resultant of a claiming of title in the property by the tenant herself or himself and not by setting up title in a third party.

8. With great respect, to the learned Chief Justice, we are not able to agree with this interpretation of the scope of the second proviso to Section 10(1). Admittedly that proviso does not expressly mention a tenant setting up title in himself or herself or in a third party. That proviso merely uses the expression 'where the tenant denies the title of the landlord'. This is a negative concept But, positively, while denying the title of the landlord, the tenant may set up title in himself or herself or in a third party. That is not referred to and that is not even necessary for the purpose of the application of the second proviso to Section 10(1). So long as the tenant denies the title of the landlord, it is totally irrelevant for the purpose of the applicability of the second proviso to Section 10(1), whether he sets up title in himself or in a third party, because admittedly the language of the second proviso does not impose any restriction that it will apply only to a case where the tenant while denying the title of the landlord sets up title in himself or herself. As a matter of fact, even the learned Chief Justice was aware of this situation, when he used the expression 'the open language of the second proviso to Section 10(1). It is significant in this context to note that Section 111(g) of the Transfer of Property Act, already referred to uses the expression "by setting up a title in a third person or by claiming title in himself". Therefore in our view, the interpretation placed by the learned Chief Justice on the second proviso to Section 10(1) cannot be said to be correct, and, consequently, we are of the view that, so long as the tenant has denied the title of the landlord, for the applicability of the second proviso to Section 10(1), it is irrelevant and immaterial whether, in addition to denying the title of the landlord' the tenant claims title in himself or herself sets up title, in a third party.

9. In the present case, there is no controversy that the tenants denied the title of the petitioner only by putting forward the contention that somebody else had become the owner of the property and to such a situation admittedly the principle of estoppel contemplated by Section 116 of the Transfer of Property Act will not apply.

10. Under these circumstances, we are of the opinion that the conclusion of the learned Appellate Authority holding that the second proviso to Section 10(1) applies to the present case, and that the denial of the title of the petitioner by the respondents is bona fide does not call for any interference. Consequently, the Civil Revision Petitions are dismissed, There will be no order as to costs.


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