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P. Sella Pillai Vs. L. Balaraman - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtChennai High Court
Decided On
Reported in(1982)2MLJ282
AppellantP. Sella Pillai
RespondentL. Balaraman
Cases ReferredIn P. Sadasivam v. M.M. Rathninasabapathy
Excerpt:
.....he entertained a genuine threat of eviction from the premises that is occupied by ham, since the notices exhibits b-1 and b-4 to b-6 clearly referred to the superstructure as an unauthorized construction, in good faith, it was thought that the landlord had no title and that he may have to suffer the penalty of eviction as seen from the notice under exhibit b-6. therefore, this is not a case in which section 116 of the indian evidence act, would apply. narayanaswami, the learned counsel for the petitioner would urge that if really the tenant was actuated by bona fides or good faith, he should have informed this fact to the landlord. the threat by the third party as well as the submission to it1 by the tenant who attorns to him must be real and bona fide. for a threat of eviction by..........very serious consequence because that is a final notice under the tamil nadu act iii of 1905, the tenant bona fide believed that the revision-petitioner-landlord had no title to the land. once he entertained a genuine threat of eviction from the premises that is occupied by ham, since the notices exhibits b-1 and b-4 to b-6 clearly referred to the superstructure as an unauthorized construction, in good faith, it was thought that the landlord had no title and that he may have to suffer the penalty of eviction as seen from the notice under exhibit b-6. therefore, this is not a case in which section 116 of the indian evidence act, would apply. nor again the decision in k.s.m. guruswami nadar v. n.g. rangunathan : air1954mad402 , will have any relevance because the cases cited set out the.....
Judgment:
ORDER

S. Mohan, J.

1. The landlord is the revision petitioner before me. This revision petition arises out of the proceedings taken under the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960), hereinafter referred to as the Act, on the following allegations.

2. The petitioner claims that the property belongs to him. The respondent became a tenant under him under Exhibit A-2, dated 10th July, 1969 agreeing to pay a monthly rent of Rs. 50 payable on 10th of every English calendar month, on default at Rs. 52 per month from the date of default. The rent was paid regularly till 23rd August, 1972, admittedly and thereafter he failed; to pay the rent and committed wilful default. This necessitated the landlord in preferring R.C.O.P. No. 36 of 1973. But the same was withdrawn, as there was a defect in the issuer of notice as required under Section 106 of the Transfer of Property Act. It may be stated at this stage that the law was somewhat nebulous as regards the necessity of notice to the proceedings under the Rent Control Act. However, presently it is settled by the recent rulings of the Supreme Court that no such notice is required. When; the respondent was called upon by a notice, dated 15th November, 1974 to vacate the premises and deliver possession by 10th December, 1974, he replied without complying with the said request. Therefore, on two grounds, eviction; was sought viz. : (1) wilful default in payment of rent; and (2) bona fide requirement of the building for his own use and occupation. Further, it was alleged, that the respondent had denied the title of the petitioner. This would be an added ground for eviction.

3. In the counter-filed by the respondent-tenant, it was stated that the lease was admitted and it was in the beginning of the year, 1961, he paid an advance of Rs. 300 and obtained a receipt from the petitioner. The rent was increased from Rs. 30 to 50. However, the Government issued several notices, firstly, Exhibit B-1, dated 29th May, 1971, a notice under Section 7 of the Tamil Nadu Land Encroachment Act (Tamil Nadu Act III of 1905). Thereafter, a notice under Exhibit B-4 was issued under Section 5 by the Estate Revenue Inspector, Salem. Notwithstanding all these, the rent continued to be paid till 23rd August, 1972. However, when notice came to be issued under Section 7 of the Tamil Nadu Act III of 1905, under Exhibit B-5, dated 15th September, 1972 and again under Exhibit B-6, dated 25th March, 1973, under Section 6 of the said Act, the respondent bona fide thought that the petitioner had no title to the suit property and, therefore, he denied petitioner's title to the same.

4. On these pleadings when the matter was taken up for trial by the Rent Controller, he was of the view that the tenant committed wilful default in payment of rent and that there was no bona fide denial of title. However, the landlord had not made out the need for additional accommodation. Accordingly he ordered eviction on two grounds, viz., wilful default in payment of rent and denial of title without bona fides. Against this order of eviction the matter was taken up in appeal by the tenant. The appellate Authority, in the first instance, remitted the matter. That order of remit was questioned in C.R.P. No. 65 of 1980, successfully by the landlord and a direction was given by this Court in the said revision petition that the matter had to be gone into by the lower appellate Authority himself. Therefore by an order, dated 18th December, 1980, the appellate Authority was of the view that because of the notices issued under Exhibits B-1 and B-4 to B-6, there was an imminent threat of eviction and it was on that the tenant was obliged to deny the title. It was also noted that those notices had mentioned the petition-property as the subject-matter of eviction. Under those circumstances, the lower appellate Court went to the extent of holding that the revision petitioner herein; did not have title and, therefore, he would not be entitled to receive rent. On these findings the appeal was allowed. It is to revise this order, the present revision petition has been prefer red.

5. Mr. M.R. Narayanaswami, the learned Counsel appearing for the landlord-petitioner submits as under:

(1) The proceedings under the Tamil Nadu Land Encroachment Act have nothing to do whatever with the building. Admittedly the respondent was inducted into possession of the premises under Exhibit A-2 in 1969 as a tenant by the revision petitioner. Therefore, he is a landlord within the meaning of the Act;

(2) The estoppel contained in Section 116 of the Indian Evidence Act would clearly apply. The only exception is where there is a bona fide denial of title. In the instant case there cannot be any such bona fides for the simple reason that the tenant would, at no point of time, bring the B memo, to the notice of the landlord. He has been visited with the notice under the Land Encroachment Act, in which event it would have been possible for the landlord to secure his title. Therefore, when he received the notice under Exhibit B-1, that will clearly go to show that there is complete lack of bona fides. In support of the above submission, he relied on decisions of this Court in S. Chokkalingam Pillai and Anr. v. M.S.S.M. Ganesa Shanmugasundaram Pillai : AIR1951Mad284 , K.S.M. Guruswami Nadar v. N.G. Ramanathan : AIR1954Mad402 and P. Sadasivam v. M.M. Rathinasabapathy (1970) 83 L.W. 713. The learned Counsel for the petitioner would urge that this is a case in which the tenant is seeking to set up title in Government, which he cannot be permitted to do, because the encroachment proceedings relate only to the site and has nothing to do with the building or the superstructure. There fore, such a setting up of title is clearly for bidden as laid down in P. Sadasivam v. M.M. Rathinasabapathy (1970) 83 L.W. 713; and

(3) The lower appellate Court has gone wrong by holding that the petitioner has no title, which is certainly alien to the jurisdiction exercisable under the Act.

6. In opposition to this, Mr. S. Jagadeesan, the learned Counsel appearing for the respondent would state that what is required to be decided is whether the tenant was, actuated by good faith in denying the title. One important feature in this case is that in spite of the notice under Exhibit B-1, the tenant continued to pay the, rent till 23rd August, 1972. But thereafter when he was visited with Exhibits B-5 and B-6, notices the latter being of very serious consequence because that is a final notice under the Tamil Nadu Act III of 1905, the tenant bona fide believed that the revision-petitioner-landlord had no title to the land. Once he entertained a genuine threat of eviction from the premises that is occupied by ham, since the notices Exhibits B-1 and B-4 to B-6 clearly referred to the superstructure as an unauthorized construction, in good faith, it was thought that the landlord had no title and that he may have to suffer the penalty of eviction as seen from the notice under Exhibit B-6. Therefore, this is not a case in which Section 116 of the Indian Evidence Act, would apply. Nor again the decision in K.S.M. Guruswami Nadar v. N.G. Rangunathan : AIR1954Mad402 , will have any relevance because the cases cited set out the general principles. In P. Sadasivam v. M.M. Rathinasabapathy (1970) 83 L.W. 713, in determining the bona fide need of the landlord, it was observed by the Court that the landlord is a person who is entitled to receive the rent and not the owner within the meaning of the definition occurring under that Act. Therefore, it was not necessary to determine the title, who was the real owner. That case will have no application whatever to the facts of the present case, May be, the lower appellate Court had gone to the extent of determining the title of the landlord. Once it is held that the conduct of the tenant is bona fide, it matters very little, who has title to the property.

7. The only question that requires to be considered is whether the respondent-tenant has denied the title of the landlord bona fide? Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, states as follows:

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.

The second provision 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.

8. If one has regard to this sub-section, certainly there was no jurisdiction on the part of the appellate authority to decide in whom the title vested. But that need not detain us any further for the very simple reason enumerated in the ground of eviction under Sub-section (2). Clause (vii) states that the tenant has denied title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide. It is in this context the question assumes importance whether the denial of title by the respondent herein was bona fide or not. From the 'B' memos, it appears that the superstructure has been built upon the land belonging to the Government. The first of such 'B' memos, is Exhibit B-1. That was a notice issued under Section 7 of the Tamil Nadu Act MI of 1905. The extent that has been encroached upon is 1 cent and the manner in which the encroachment has been made is by putting up a building (Lorry booking office). The notice under Section 7 is a prelude or forerunner to eviction under Section 6 of the Tamil Nadu Land Encroachment Act, 1905. That is why Section 7 says that it is prior notice to person in occupation calling upon the person in occupation to show cause before a certain date why he should not be proceeded against under Section 6, for this unauthorised occupation. Therefore, having regard it the statutory provision, it is no wonder, the tenant, who is in occupation has come to be served with this notice. Under these circumstances, Mr. M.R. Narayanaswami, the learned Counsel for the petitioner would urge that if really the tenant was actuated by bona fides or good faith, he should have informed this fact to the landlord. I do not think so. In the instant case, the tenant continues to pay the rent till 23rd August, 1972, which is admitted before me. Thereafter he comes to be issued the notice under Exhibit B-5, dated 15th September, 1972, which again is one under Section 7 of the Act. The matter did not stop there. Again, under Exhibit B-6, dated 25th March, 1973, the notice under Section 6 comes to be issued. It is this notice which has penal consequence because he is liable to be summarily evicted. One thing is very striking in all these notices. In the last column, as to the manner of enjoyment, what is mentioned is the superstructure, which forms the subject-matter of Exhibit A-2. Therefore, when there is an actual threat of eviction or an imminent danger of eviction, if a person denies t

116. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when: such license was given.

This would constitute an exception is clear from the ruling of S. Chokkalingam Pillai and Anr. v. M.S.S.M. Ganesa Shanmugar Sundaram Pillai : AIR1951Mad284 . The learned Judges observed as follows:

What exactly constitutes a threat of eviction by title paramount which results in the determination of a lease has been considered in several cases of which it is necessary for me to mention only the rulings in Fogendralal Sankar v. Moheshchandra Sadha ILR(1928) Cal. 1013; Rajkrishna Prasadlal Singh Deo y. Baraboni Coal Concern Limited : AIR1926Mad187 . What emerges from the relevant case law on the subject is neatly stated by Sarkar on Evidence in his commentary to Section 116 of the Indian Evidence Act. It is sufficient for me to say that in order to constitute an eviction by a person claiming under paramount title, it is not necessary that the tenant should be put out of possession or ejectment should be brought about, and that a threat of eviction is sufficient, and if the tenant, in consequence of such threat, attorns to the claimant, he can set this up as an eviction by way of defence to an action for rent, subject to his proving the evictor's title, but there is no eviction if the tenant gives up possession voluntarily. If the true owner is armed with a legal process for eviction which can not be lawfully resisted even though the tenant is not put out of possession the threat to put him out of possession amounts in law to eviction. The threat by the third party as well as the submission to it1 by the tenant who attorns to him must be real and bona fide. For a threat of eviction by title paramount to constitute a good defence the party evicting must have good title and the tenant must have quitted against his will.

In K.S.M. Guruswami Nadar v. N.G. Ranganathan : AIR1954Mad402 at 406, it was observed in paragraph 11 as under:

It therefore follows that the defendant is estopped only to the extent of the half share covered by Exhibit B-6. The plaintiff, however, cannot get possession in this suit, as it is not possible in this suit to partition the property and deliver a half share to the plaintiff. In such a case, as pointed out by Foa on Landlord and Tenant, 6th Edn. page 195, where there is eviction by title paramount of only part of the demised premises, the whole of the rent is not suspended, but rent has to be apportioned. Applying this principle, the plaintiff may be entitled to rent for half the house. But the difficulty is that after the expiry of the term, there is no continuance of the tenancy so as to convert him into a tenant holding over. He would therefore be entitled only to damages for use and occupation. But this has not been the basis of the suit, and this has not been determined by the trial Court.

9. But this case has no relevance whatever in view of the fact that there is a clear threat of eviction by reason of the notice under Section 6 of the Tamil Nadu Act, III of 1905. In P. Sadasivam v. M.M. Rathninasabapathy (1970) 83 L.W. 713, my learned brother Ramanujam, J., was concerned with determination of the question as to the personal need of the landlord. There the tenant sought to set up title in the Trust and the question whether the need of the Trust was to be established or the need of the landlord, who actually inducted the tenant into possession, required to be determined. The learned Judge answered that having regard to the definition of landlord, there is no reason to restrict the same to the owner. The situation here is entirely different. The question is as to the determination of the good faith on the part of the tenant. The circumstances narrated above viz., that only on threat of eviction, the tenant was obliged to deny the title of the landlord, when what was referred to in the notice was the supersructure would undoubtedly spell out bona fide. I am unable to accept the argument that under the Land Encroachment proceedings the Government is concerned only with the land and not with the superstructure. This is not the correct way of looking at the matter, because it is true, under the land encroachment proceedings the Government does not concern itself with the building. But where the land on which the superstructure stands as seen from the B Memos, viz., Exhibits B-1, B-5 and B-6 belonged to the Government and then what is referred to in all these notices, as has been observed earlier, is the building in which the lorry booking office is situate, the tenant entertained the genuine apprehension as to the title of the landlord.

10. Any finding of the lower appellate authority holding that the Government has title cannot be construed by the authorities except to a limited extent viz., to determine the bona fides on the part of the tenant. So construed in this way, there can be no objection whatever in the landlord establishing his title in a civil suit. But as I observed above at the outset the question need not detain us to determine the good faith on the part of the tenant. I find in the instant case that the conduct of the tenant is clearly bona fide. Therefore, the order of the appellate authority can easily be upheld. The civil revision petition is accordingly dismissed. There will be no order as to costs.

11. I make it clear that I have not decided the title of the landlord viz., the petitioner. All that I have endeavoured is to point out the bona fides of the tenant in denying the landlord's title. I am informed by the learned Counsel on both sides that a sum of Ks. 4,000 lies to the credit of C.M.A. No. 48 of 1976. This will remain in Court deposit till 31st March, 1982, to enable the landlord to obtain orders of transfer to the civil Court in the event of suit being filed for declaration of title. If not such order is obtained it will be open to the tenant to withdraw the same without furnishing any security.


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