Retention of premises to be construed as part performance of contract.

This revision petition has been preferred against the order of the authorities below directing the eviction of the petitioner from the premises in her occupation, on an application taken out in that regard by the respondent herein, under Secs.l0(2)(l), 10(3) (a)(i) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Cor-trol) Act, 1960 (Act 18 of 1960 as amended by Act 23 of 1973) (hereinafter referred to as ‘the Act’).

2. Briefly stated, the case of the respondent in the eviction petition R.C.O.P.No.3606 of 1981 filed by her, is as follows: The respondent is the owner and landlord of the premises bearing door No.1, (Old door No.36), First Main Road, Raja Annamalaipuram, Madras-28 and the petitioner is a tenant on a monthly rental of Rs.150 the tenancy being reckoned according to English calenJar month. The respondent stated that the petitioner failed and neglected to pay the rent for the period 3. 1976 to 20.6.1981 and such non-payment amounted to wilful default in the payment of the rents meriting the passing of an order for eviction against the petitioner. In addition, the respondent stated that her husband Venkataraman, who was in Tamil Nadu Government Service, retired in March, 1979and decided to settle in Madras along with the other members of his family and as the respondent did not possess any other residential building of her own in Madras, she required the premises in the occupation of the petitioner, for her own occupation. The respondent also stated that in response to a notice sent by her on 7. 1979, attributing wilful default to the petitioner and also informing her about her need for occupying the residential house, the petitioner had sent a reply on 20.7.1979, denying the title of the respondent and such denial was wilful and not bona fide, which would also justify the passing of an order for eviction against the petitioner. In the counter filed by the petitioner, she put forward the plea that there was no relationship of landlord and tenant between the respondent and herself. A further plea was also raised that the petitioner had instituted a suit for specific performance of an agreement of sale in respect of the property in her occupation, in O.S.No.2155 of 1981, City Civil Court, Madras, and the respondent had also been impleaded as a party to that suit owing to a fraud played for defeating the rights of the petitioner by stealthily dealing with Raja Annamalaipuram Cooperative House Construction Society. Stating that she had never paid any rent to the respondent, the petitioner denied that wilful default had been committed by her in the payment of rent to the respondent. Likewise, the petitioner also refuted the claim of the respondent for an order of eviction under Sec. 10(3)(a)(iii) of the Act. The denial of title was also stated to be not mala fide and the petitioner maintained that one Subbu Venkataraman was the owner of the property and as the agreement of sale was the subject-matter of a suit, the respondent cannot be permitted to approach the authorities under the Act and seek eviction.

3. Before the Rent Controller, on behalf of the respondent, Exs.P-1 to P-3 were filed and the husband of the respondent and her brother were examined as P.Ws.l and 2, while on behalf of the petitioner, Exs.R-1 to R-9 were marked and there was no oral evidence. On a consideration of the oral as well as the documentary evidence, the Rent Controller found that the relationship of landlord and tenant existed between the respondent and the petitioner and that the default in the payment of the rents, was wilful. It was also found that the respondent had established bona fide requirement of the premises in the occupation of the petitioner for her own use and occupation and that the petitioner for her own use and occupation of the petitioner had also wilfully denied the title of the respondent. On the aforesaid conclusions, an order for eviction was passed against the petitioner. Aggrieved by this, the petit