1. In H.R.C. No. 410 of 1958, three persons, E.R. Janarthanam, E.R. Soundararajap, who are brothers, and E. Rajarathnammal, who is their mother applied under Section 7 of Act XXV of 1949 (The Madras Buildings (Lease and Rent Control) Act, 1949, as amended by Act VIII of 1951 and Act XXVI of 1955, for evicting the respondent, K. Sigamany, from the residential building, namely No. 96, Shanmugharoyan Street, Madras, which the respondent had been occupying on a monthly rent of Rs. 5-7-0. The Rent Controller allowed the Application and ordered eviction. The tenant appealed to the Second Judge of the Court of Small Causes at Madras, who is the appellate authority. The Appeal was allowed, and the petition for eviction was dismissed. This Revision is filed against the above order by the landlords, the petitioners in the first Court, under Section 12-B of the aforesaid Act, seeking revision of the order made by the appellate authority.
2. Now, the main ground on which the first Court allowed the petition was that the landlords required the premises bona fide for their own occupation, within the meaning of Section 7(3)(a)(i) of the Act. It was found by the first Court that the three petitioners were jointly entitled to the suit house as well as another house bearing No. 14, Pedariar Koil Street, Madras. However, the mother, the third petitioner, and her other sons and daughters were residing in a portion of No. 14, Pedariar Koil Street, and the other portion being in occupation of tenants. The petitioners who have married sisters were till then living with their father-in-law. But they found it difficult to continue to live there, and therefore they required the suit building for their occupation. The official duties of the first and the second petitioners also made it necessary for them to move to a nearer place than their father-in-law's place at Tondiarpet.
3. The appellate Court observed that the mother, admittedly, owned another house, where she was residing with her family except the first and the second respondents (petitioners) and had set up her two sons, the first two petitioners mala fide to obtain eviction. Secondly, the appellate Court observed that there was no evidence on record to show that the first and second petitioners were joint owners of the suit house, and that it was the third respondent (petitioner 3), who let the premises to the appellant, and she was collecting the rent, and therefore she was the landlady. There was no proof that the first and second petitioners were joint owners, and joint landlords. So the application filed by them was not sustainable. Thirdly, the appellate Court found that since the suit premises was very small, it was difficult to believe that the family of the first and second petitioners composed of 11 souls, could accommodate themselves therein. The appellate Court did not believe the contention of the two petitioners, that their official duties required them to reside nearer the centre of the Madras City. Finally, the appellate Court came to the conclusion that the first two petitioners were quite happy with their father-in-law, where they were staying. The appeal was therefore allowed.
4. Learned Counsel for the petitioners before me, contend that the lower appellate Court was in error in arriving at the finding that only the third petitioner was the landlord, that petitioners 1 and 2 were not landlords, and that therefore the application filed jointly by the three of them was not maintainable. On this ground, the lower appellate Court seems to have held that the petition itself was not maintainable. For this purpose, the lower appellate Court observed that there was no evidence to show that petitioners 1 and 2 were joint owners. But, the first Court has clearly referred to the evidence of first and second petitioners as P.Ws. 1 and 2, that the suit house belonged jointly to them and their mother. It was plainly irregular for the-Court to dispose of the case on the assumption that there was no evidence, when in fact there was evidence. To say there is no evidence will be a different thing from saying that the evidence adduced is not sufficient. But, what the appellate Court has done, in this case, is to ignore completely the evidence of P.Ws. 1 and 2, and to proceed on the basis that there was no evidence, that the petitioners were joint landlords. In doing so, the Court must be deemed to have acted illegally and with material irregularity.
5. Now coming to the legal position, where the members of a coparcenary have more than one house, in one of which some members are residing, and when some other members apply for recovery of possession of another house, belonging to the family reference is made to Seshasayana Rao v. Venkatesa Rao : AIR1954Mad531 . In that decision it has been observed by Venkatarama Ayyar, J.:
When a building belonging to a joint family is leased, the landlord is not an abstract juristic entity called 'joint family'; but the members who constitute that family. When a coparcener applies for possession under Section 7(3)(a)(i), he will be entitled to an order, if he establishes that he requires the house for his own occupation, and he is not disentitled to that relief by reason of the fact that the family owns another house and members of the family are residing therein, if he is. himself not in occupation of it.. The Act is concerned with actual and physical possession and not with notional and constructive possession; and it will be foreign to the, scheme of the Act to hold that occupation by one member should be construed as occupation by another, when that other is not in fact in occupation.
The view laid down above is applicable to the circumstances of this case.
6. Secondly, the lower appellate Court appears to have been of the opinion that petitioners 1 and 2 should be content with the occupation of their father-in-law's house, where they were said to be quite comfortable, and that this would be a ground for depriving them of the benefit of Section 7(3)(a)(i) of the Act. Section 7(3)(a)(i) of the Act clearly refers to the landlord not occupying a residential building of his own in the City, Town or Village concerned. By no stretch of interpretation of this provision, can the house of the father-in-law be construed as a residential building of the son-in-law. In approaching the case, therefore, from the above point of view, the lower appellate Court clearly misdirected itself, regarding the scope of Section 7(3)(a)(i), and failed to exercise its jurisdiction for the purpose of applying that section.
7. I therefore, set aside the order of the lower appellate Court. While on this aspect of the case, it appears to me that the lower appellate Court was clearly wrong in importing, for the purpose of applying Section 7(3)(a)(i) of the Act, the largeness of the petitioners' family and the smallness of the premises, regarding which relief of eviction Was sought. It is a matter of common knowledge that a large number of persons often have to adjust themselves in a limited accommodation, bearing in mind the circumstances of overcrowding in large Cities like Madras. Moreover the strength of the family of the petitioners take into account a number of children, who may be expected to spend some of their time in the house of the grandmother or other relatives. So the size of the family of the petitioners in relation to the accommodation of the house, will be an irrelevant consideration, in the circumstances of this case, for applying Section 7(3)(a)(i) of the Act. In view of the foregoing circumstances I allow the Revision Petition, set aside the order of the lower appellate Court, and restore the order of the first Court. The petitioners will be entitled to their costs, in this Revision Petition.
8. Time to give possession, 3 months from the date of this order.