Mortgagee creating tenancy.

Originally the revision was filed by the landlords in R.C.O.P. No.7 of 1985, viz., petitioners 1 and 2 herein. Pending disposal of the revision, first petitioner died and his legal representatives, namely, petitioners 3 to 5 have been brought-on record as per Order in C.M.P. No. 84 of 1996 dated 19-1-1996. The said R.C.O.P. was filed before the Rent Controller, Udumalpet.

2. The material averments in the eviction petition are as follows :-

The schedule building originally belonged to one Srinivasa Iyengar and Janaki Ammal, who executed a possessory mortgage in favour of one Jagannatha Iyengar. That was dated 12-10-1949. The mortgagee came into possession. On 11-1-1968, the mortgagee inducted Chinnappa Gounder as a tenant of the building. He is the predecessor of respondents 1 and 2 in this case. He was doing business along with one Kuttappan who lived in the back portion of the schedule premises. He is dead and the third respondent is claiming as his legal heir.

3. It is seen that the original owner Srinivasa Iyengar and Janaki Ammal executed an agreement for sale in favour of the original revision-petitioners herein. Since sale deed was not executed as per the agreement, they instituted a suit as O.S. No.96 of 1950, on the file of the District Munsiff's Court, Udumalpet. A decree was obtained and in execution the original petitioners herein got a sale deed executed through Court. That was on 16-12-1954. Thus the original petitioners became the owners of the property. The mortgagee Jagannatha Iyengar executed a release deed on 22-9-1984, as evidenced by Ex.A-3, and on the same date, instead of handing over possession of the property, he executed Ex.A-4, i.e., he authorised the original petitioners to recover all arrears of rent from his tenant and also to collect future rent from the building. Thereafter, the original petitioners issued a notice to the respondents on 25-1-1985. In that notice, a copy of which is marked as Ex.A-5, it is stated that respondents 1 and 2 herein are the tenants of the building and the third respondent is sub-lessee, that they have committed default in paying the rent both to original mortgagee and after release, to the petitioners herein, and they also wanted the building to be surrendered, for their own occupation. It is not disputed that the notice was accepted by the respondents, and finally when the demand was not complied with, on 16-4-1985, the present eviction petition was filed.

4. In the counter statement, it was contended by respondents 1 and 2 stating that between the petitioners and themselves, there is no landlord and tenant relationship. They also said that even though the petitioners herein became the owners of the property on 11-12-1954, since they did not take any steps to redeem the mortgage, they contacted the mortgagee Jagannatha Iyengar, who according to them, had then become the owner of the property in view of lapse of time, and they wanted a sale deed to be executed in their favour. It is said that they paid an amount of Rs. 10,000/- to Jagannatha Iyengar. It was said that within one year, the document will have to be executed in their favour. They also put forward a contention that it was the practice of the mortgagee to collect the rent from them directly and in view of the close relationship, they did not insist on receipt. They also disputed the claim of default in paying the rent and also the petitioners' claim on the ground of bona fide requirement for own occupation.

5. On the side of the petitioners, Exs.A-1 to A-10 were marked and the first petitioner was examined as PW 1. On the side of the respondents, we have only the oral evidence of RW 1, who is the first respondent herein. After taking evidence, the Rent Controller allowed the petition. It found all the issues in favour of the petitioners.

6. Against the said decision, respondents 1 to 3 filed R.C.A. No.9 of 1988, on the file of Appellate Authority (Subordinate Judge), Udumalpet. The Appellate Authority