IMPORTANT POINTS
1. In the case of derivative title of the landlord, in the absence of a notice of transfer of title in favour of the landlord or attornment of tenancy, a tenant s assertion that the landlord is a co-owner does not amount to denial of his title, unless the tenant has also renounced his relationship as a tenant.
2. The question of wilful default to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Where the findings recorded by the Appellate Authority are illegal, erroneous or perverse, the High Court, having regard to the ambit of its revisional jurisdiction under Section 25 of the Tamil Nadu Rent Control Act, will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings.

Headnote:(i) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960-Section 10(2) r/w Section 25-Wilful default in paying rent-Eviction on ground of-Question of wilful default is mixed question of law and fact-If findings recorded by Appellate authority are illegal, erroneous or perverse, High Court can give its own finding reversing findings of Appellate authority.
       Held : From a combined reading of clause (i) of sub-section (2), the proviso and the Explanation, of Section 10, it is manifest that it is only when the Rent Controller is satisfied that a tenant s default to pay or tender the rent is wilful, that he can order eviction of the tenant. The question of wilful default to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Where the findings recorded by the Appellate Authority are illegal, erroneous or perverse, the High Court, having regard to the ambit of its revisional jurisdiction under Section 25 of the Tamil Nadu Rent Control Act, will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings. (Para 11)
       (ii) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960-Section 10(2)-Wilful default in paying rent-Eviction on ground of-Tenants filing petition u/s 8(5) for depositing rent in Court-Dismissal of petition-Subsequent petition for eviction on ground of wilful default-Landlord, however, withdrawing rent deposited in Court u/s 8(5) proceedings before filing eviction petition-Held: on date of eviction petition cause of action on ground of wilful default did not subsist. D. @ Dakaiah v. Anjani, 1995(6) SCC 500 : Relied on. (Para 12)
       (iii) Rent Control and Eviction-Wilful default in payment of rent-Pleadings that tenant failed to tender correct rent -No averments in petition regarding non-payment of rent-Held: eviction petition was not on ground of wilful default but on ground enhanced rent claimed was not paid-Notice exchanged between parties cannot be taken recourse to construe pleadings. (Para 14)
       (iv) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960-Section 10(2)(vii)-Denial of title of landlord-Eviction on ground of-What constitutes denial of title-Landlord must establish that denial of title by tenant is not bona fide-In case of derivative title of landlord, in absence of notice of title in favour of landlord or attornment of tenancy, tenants assertion that landlord is a co-owner does not amount to denial of title.
       Held : A plain reading of clause (vii) to Section 10(2), makes it clear that to invoke this clause twin requirements, namely.-(i) denial of title of the landlord or claim of a right of permanent tenancy by the tenant and (ii) such denial or claim is not bona fide, have to be established by a landlord. (Para 16)
       To constitute denial of title of the landlord, a tenant should renounce his character as tenant and set up title or right inconsistent with the relationship of landlord and tenant, either in himself or in a third person. In the case of derivative title of the landlord, in the absence of a notice of transfer of title in favour of the landlord or attornment of tenancy, a tenant s assertion that the landlord is a co-owner does not amount to denial of his title, unless the tenant has also renounced his relationship as a tenant. The principle of equity that a person cannot approbate and reprobate finds legislative recognition in Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. It is in the light of this principle, we have to construe clause (vii) of sub-section (2) of Section 10 of the Act. (Para 17)
       In the instant case the appellant landlord derived his title to the premises under a release deed executed his father C . The respondents tenants became tenants of C long prior to his execution of the release deed. The appellant issued notice to vacate premises on the ground that the building was required for demolition and reconstruction. The respondents tenants stand was that the appellant was a co-owner, C having left behind other legal heirs also and as such the appellant could not seek eviction on ground of demolition and reconstruction. The appellant filed eviction petition on ground that the respondents denied title of the landlord.
       Held : It is a common ground that the appellant had not intimated the respondents that he became owner of the premises under the release deed. There is also nothing on record to show that after execution of the release deed, the appellant has got fresh lease deeds executed in his favour. However, after the demise of Chockalingam, the respondents started paying the rent to the appellant. Indeed, the High Court has also referred to the evidence of the appellant in which he admitted that the respondents did not deny that he was the landlord when depositing the rent in the Court and that they were paying the rent to him. When a notice was issued by the appellant to the respondents seeking eviction of the premises for its demolition and reconstruction, the respondents replied that he was not the absolute owner of the property since late Chockalingam had also left behind him three daughters and a widow. In their counters, the respondents reiterated the said plea and added that they were unaware of the execution of release deed in favour of the appellant by late Chockalingam and that they had been paying monthly rent to him and that the denial of absolute title of the property was not wilful and mala fide, as alleged in the petitions. Now, in this background, when we consider the conduct of the respondents that from the date of the said reply notice (Exhibit P-18) the respondents neither denied the relationship of landlord and tenant nor did they stop paying rent to the appellant nor did they set up any claim adverse to title or interest of the appellant in themselves or a third party and that after coming to know of the said release deed in favour of the appellant they did not persist in their plea that he was a co-owner, it cannot be said that the respondents denied the title of the appellant,

       much less can it be said that such a denial was not bona fide. The High Court is right in coming to the conclusion that but for the release deed the appellant would be a co-owner and so the respondents were justified in calling the appellant as a co-owner for lack of knowledge of the release deed and that the appellant failed to make out a case of denial of his title to the premises by the respondents. (Paras 18 & 19)

JUDGMENT

Syed Shah Mohammed Quadri, J.-These three appeals, by special leave, arise out of the common judgment of the High Court of Madras in C.R.Ps. 3796 to 3798 of 1994 dated November 17, 1997. The common appellant is the landlord and respondents are the tenants of the three shops, Door Nos. 19, 20 and 21, R.K.V. Road, Erode, (hereinafter referred to as the premises ).

2. The facts giving rise to these appeals may be notified here.

The father of the appellant, Late Chockalingam who was the owner, let out the shops on rent bearing-Door No. 19 to T. Subramaniam @ Rs. 75/- per month; Door No. 20 @ Rs. 250/- per month to M. Sengottaiyan who died during the pendency of the proceedings (his legal representatives are brought on record as respondents 2 to 6), and Door No. 21 to Nachimuthu @ Rs. 200/- per month. They are said to be in occupation for the last 25 to 40 years. On June 8, 1978 the said Chockalingam executed release deed (Exhibit P-4) in favour of the appellant and thus he became the absolute owner and landlord of the premises.

3. The landlord claimed that the rent of the shops, Door Nos. 19, 20 and 21, was enhanced to Rs. 400/-, Rs. 850/- and Rs. 700/- respectively. He issued notice to the said three tenants stating that the premises were required for demolition and reconstruction and asking them to vacate the same. They replied that he was only a co-owner as the original landlord (Chockalingam) died leaving behind three daughters and a widow also, therefore, he could not seek eviction for demolition and reconstruction of the premises.

4. On the allegation that the appellant was not receiving rent, the respondents issued notices to him to nominate a bank and furnish account number to which the rent may be credited but no reply was given by him. Thereafter, they filed applications under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short the Act ) seeking permission of the Rent Controller to deposit the rent in his Court.

5. While so, the appellant filed three eviction petitions under Sections 10(2) and 14(1)(b) of the Act against them seeking their eviction from the premises on three grounds, namely, (i) wilful default in payment of rent; (ii) for demolition and reconstruction of the premises and (iii) denial of the title of the landlord. They resisted those petitions pleading that the quantum of rent claimed by the appellant was not correct; the agreed rent for the Shops bearing Door Nos. 19, 20 and 21 was Rs. 75/-, Rs. 250/- and Rs. 200/- respectively and reiterating the plea taken in the reply notice that he is a co-owner and cannot seek eviction of the premises for demolition and reconstruction. It was also submitted that the transfer of the premises in favour of the appellant was not known to them and that they were paying the rents regularly to him and that there was no wilful and mala fide denial of title of the appellant.

6. The Rent Controller, on the basis of the evidence led before it by the parties, held that all the three grounds were proved by the appellant and allowed the eviction petitions by order dated April 9, 1992; however, the petitions filed by them for deposit of rent were dismissed.

7. Appeals were preferred before the Appellate Authority against both the orders directing eviction and dismissing applications for deposit of rent. The Appellate Authority found that the quantum of rent pleaded by them was correct and that the appellant failed to establish that the rent was enhanced to the amounts claimed by him. But it held that as the applications filed by them for deposit of rent before the Rent Controller were without any valid reasons, they committed wilful default in payment of rent. On the point of denial of the title, the order of the Rent Controller was confirmed. However, the Appellate Authority was not satisfied that the landlord required the premises for demolition and reconstruction and on that point the finding of the Rent Controller was reversed. In that vie

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2000 Supreme(SC) 19

Cases Referred (1)