Tenant not entitle to claim title to the superstructure.

ORDER :- The above revisions arise out of the order passed by the VI Judge, Court of Small Causes at Madras (Appellate Authority) in R.C.A. 433 of 1983 as against the order of the VIII Judge, Court of Small Causes, Madras, (Rent Controller) in HRC 5455 of 1981. C.R.P. 3821 of 1984 is filed by the landlord, hereinafter referred to as the petitioner, challenging the correctness of one finding of the appellate authority and C.R.P.1018 of 1985 is filed by the tenant, hereinafter referred to as the respondent, challenging the correctness of another finding in the same order of the same appellate authority.

2. The facts giving rise to the present revisions briefly are as follows - The proceedings related to a house bearing door No. 4 (old door No. 102) in Portuguese St, 7th Lane, Madras 1. The petitioner filed an application under S.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as the Act) on the averment that it was the owner of the superstructure in the petition premises, that the respondent was its tenant, that the respondent had committed wilful default in the payment of rent from April, 1972 to Sept., 1981, and that despite a notice dated 22-4-1981, rent had not been paid and the default being wilful eviction of the respondent was sought for.

3. The respondent resisted the above action on the allegation that the petitioner was not the owner of the superstructure, but that the superstructure had really been constructed b her and belonged to her, that,, therefore, there was no landlord-tenant relationship between them and hence the question of the respondent paying any rent to the petitioner did not arise and that there was no default much less any wilful default. It is the common case of both the parties that the site on which the superstructure is located belong to Sri Prasanna Venkatesaperumal Devastanam.

4. Before the Rent Controller, one of the partners of the firm was examined as P.W. 1 and Exs. P 1 to P 9 were marked on the side of the petitioner. The respondent was examined as R.W. 1 and Ex. R.1 to R.50 were marked on the side of the respondent. Learned Rent Controller, on the materials, found that the case of the respondent was true and that there was no landlord-tenant relationship between the parties and, upholding the right of the respondent to the superstructure dismissed the petition filed by the petitioner. Learned Appellate Authority, before whom the petitioner filed an appeal, reversed the finding of the learned Rent Controller in so far as it related to the ownership of the superstructure, and held that it was the petitioner who was the owner of the superstructure, that the respondent was the tenant under the petitioner and that the respondent was bound to pay rent to the petitioner. Learned Appellate Authority, however, held that, though there was default in payment of rent by the respondent to the petitioner, for the relevant period, viz., from April, 1972 to Sept., 1981, still, in view of the fact that the respondent had put up a bona fide claim of right to the superstructure and had also paid the property tax and land rent on behalf of the petitioner, which the respondent would have thought could be adjusted towards the rent, she was liable to pay to the petitioner, and had, therefore, not paid the rent, the default could not be construed as a wilful default. The appeal, however, was dismissed on the ground that the default was not wilful. Hence these two revisions by the respective parties as against the different finding adverse to them.

5. Taking C.R.P. 1018 of 1985; filed by the tenant first, challenging the finding of the appellate authority that the petitioner is the owner of the superstructure, Thiru T.S. Subramaniam, learned counsel for the respondent submitted that once a tenant had chosen to deny the title of the landlord it was not incumbent on the part of the Rent Controller or this court in revision to g