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Madras High Court
RAMANUJAM
Palaniappa Chettiar (died) - Appellant
Versus
Parvathi Bai - Respondent
Decided On : 04/28/1971
MADRAS BUILDINGS (LEASE AND RENT CONTROL) ACT, 1960 - SECTION 3(2)(a) - JURISDICTION OF RENT CONTROLLER - VACANT SITE - EVICTION PETITION - MAINTAINABILITY - RES JUDICATA - APPLICABILITY.
Fact of the Case:
Palaniappa Chettiar, the petitioner, leased a vacant site of land from Peer Batcha Sahib in 1947. He sub-leased portions of the site to Janakiram and Baldev Prasad, who constructed superstructures on the sites. In 1949, Peer Batcha Sahib settled the property in favor of Babu Sahib and Abdul Khader, who filed a suit for possession against Palaniappa Chettiar and his sub-lessees. The suit was dismissed by the trial court, and the decree was upheld on appeal. Palaniappa Chettiar then filed an eviction petition against the sub-lessees under the Madras Buildings (Lease and Rent Control) Act, 1960, alleging willful default in rent payment, denial of title, and unauthorized subletting. The Rent Controller and appellate authority ordered eviction, but the revisional authority remanded the matter to the Rent Controller to determine the issue of jurisdiction.
Finding of the Court:
The court held that the Rent Controller had no jurisdiction to entertain the eviction petition because the subject matter of the sub-lease was a vacant site, and the Madras Buildings (Lease and Rent Control) Act, 1960, did not apply to vacant sites. The court also held that the earlier decision of this court in S.A. Nos.1153 of 1960 and 1171 of 1961 (Mad), which held that the suit for possession would not lie in a Civil Court and that the provisions of the Rent Control Act had to be invoked in the case, did not bar the sub-lessee from questioning the jurisdiction of the Rent Controller.
Issues: 1. Whether the Rent Controller had jurisdiction to entertain an eviction petition in respect of a vacant site. 2. Whether the earlier decision of this court in S.A. Nos.1153 of 1960 and 1171 of 1961 (Mad) barred the sub-lessee from questioning the jurisdiction of the Rent Controller.
Ratio Decidendi: 1. The court held that the Rent Controller had no jurisdiction to entertain the eviction petition because the subject matter of the sub-lease was a vacant site, and the Madras Buildings (Lease and Rent Control) Act, 1960, did not apply to vacant sites. The court relied on the decision of the Supreme Court in Salai Mohammed v. J.M.S. Charity, 1969-1 Mad LJ 16 (SC), which overruled the earlier view of this court holding that the Rent Controller would have jurisdiction to entertain an eviction petition even in respect of a vacant site if the vacant site had been built upon by the tenant. 2. The court held that the earlier decision of this court in S.A. Nos.1153 of 1960 and 1171 of 1961 (Mad) did not bar the sub-lessee from questioning the jurisdiction of the Rent Controller. The court relied on the observations of the Supreme Court in C.A. No.1061 of 1966 - (Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy) : (reported in AIR 1971 SC 2355), which held that a question relating to the jurisdiction of the Rent Controller cannot be deemed to have been finally determined by an erroneous decision of the court and that such a question of jurisdiction cannot be barred by the principle of res judicata.
Final Decision: The court allowed the civil revision petition filed by the sub-lessees and dismissed the eviction petition filed by Palaniappa Chettiar. The court also set aside the order of the revisional authority remitting the matter to the Rent Controller for fresh disposal.
ORDER:- As these two revision petitions are connected, they are dealt with together.
2. Palaniappa Chettiar, the petitioner in C.R.P. 502 of 1967 is a lessee of a vacant site of land of 21 cents in Bhavani village from the year 1947 and the lease in his favour was for a period of 10 years under Ex.A-1 and the original owner was one Peer Batcha Sahib. In 1948 he sub-leased a portion of the site to one Janakiram under Exhibit A.2. Janakiram put up a superstructure and was paying the ground rent to the lessee. Palaniappa Chettiar. In 1949 he sub-leased another portion of the leasehold property to one Baldev Prasad under Exhibit A.3. The sub-lessee, Janakiram, after he put up the superstructure assigned his rights to Baldev Prasad in September 1948, as a result of that assignment the sub-lessee Baldev Prasad came to possess two vacant sites under Exhibits A.2 and A.3. Baldev Prasad died in the year 1952 leaving behind his wife, Thulasi Bai and a daughter Parvathi Bai who are in occuptation of the site leased out under Exhibits A.2 and A.3. In October 1949, Peer Batcha Sahib, the owner of the property settled the property in favour of his near relations Babu Sahib and Abdul Khader. The said Babu Sahib and Abdul Khader filed O.S.803 of 1958 for possession of the property with arrears of rent or damages for use and occupation, as against Palaniappa Chettiar and his sub-lessees. The suit was decreed by the trial court and against the decree Palaniappa Chettiar and others filed separate appeals and in those appeals the decree of the trial court was confirmed. There were two second appeals S.A. No.1153 of 1960 (Mad), (Palaniappa Chettiar v. Babu Sahib alias Sheik Myteen Sahib) and S.A. No.1171 of 1961 (Babu Sahib v. Palaniappa Chettiar) to this court and it was held therein that Babu Sahib and Abdul Khader, the plaintiff's in the suit had no right to sue for possession and that they have to seek their remedies only under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960 and that the suit for possession was not maintainable. Thereafter Palianiappa Chettiar filed H.R.C.O.P.36 of 1964 before the Rent Controller for eviction against the sub-lessee and the grounds for eviction were that they have committed wilful default in payment of the monthly rents and that they had also denied his title and that they had also sub-let the premises to third parties without his consent. The eviction petition was resisted by the legal representatives of Baldev Prasad and other sub-tenants contending that the denial of title was bona fide as Palaniappa Chettiar's right to possession was negatived in second appeals Nos.1153 of 1960 and 1171 of 1961 (Mad) by this court and that after that decision there was no relationship of landlord and tenant between Palniappa Chettiar and the sub-lessees. The Rent Controller as well as the appellate authority held against the contention put forward by the sub-lessees and ordered eviction giving two months time for vacating the premises.
There were two revisions to the revisional authority and the revisional authority had held that the denial of title by the sub-lessees was not bona fide and that there exists the relationship of landlord and tenant between Palaniappa Chettiar and the sublessees. Before the revisional authority it was urged by the sub-lessees that the proceedings for eviction under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960 would be without jurisdiction as the subject-matter of the sub-lease was only a vacant site and that it is only the Civil Court which has the jurisdiction to eject them. The learned District Judge, however, felt that as it has been held in S.A.1153 of 1960 and 1171 of 1961 (Mad) that the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960 alone would apply and the suit for possession was not maintainable, the question whether the subsequent change in the case law would be a ground for reopening the former deci
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