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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
R.M. Sundaram @ Meenakshi Sundaram and another
Versus
The Correspondent, National Elementary School, Pundarigakulam. Vadakarai, Nagapattinam
Second Appeal No.381 of 1991 and C.R.P.No.1563 of 1995
Decided On : 31-10-1996
LEASE - LICENCE - DISTINCTION - BUILDING - OCCUPATION - RENT CONTROL ACT - EVICTION - JURISDICTION - CIVIL COURT - RENT CONTROLLER - DENIAL OF TITLE - BONA FIDE - FINDING - SUIT FOR EVICTION - MAINTAINABILITY - TRANSFER OF PROPERTY ACT, 1882, SEC. 105 - TAMIL NADU BUILDINGS (LEASE AND RENT CONTROL) ACT, 1969, SECS. 10, 14 TO 16.
Fact of the Case:
Plaintiffs filed a suit for mandatory injunction directing the defendant to remove all the furniture and other articles kept by the defendant for conducting classes and to forbid from interference with the possession and enjoyment of the property thereafter. The defendant was in occupation of the building as a licensee, and he was conducting classes of elementary section from 9-00 a.m. to 5-00 p.m. on all working days. The main building was fetching a monthly rent of Rs. 55 and the thatched portion was rented out for Rs. 50. The plaintiffs are actually and virtually residing in the very same property and are fully utilising the premises during the rest of the hours of the day. The main doors are being closed only by the plaintiffs, and in fact, they are keeping guard over the furniture, chairs and benches left by defendant after the closure of the classes, and the lock and key for the main door are with the plaintiffs. The trial court dismissed the suit. The lower appellate court allowed the appeal and remanded the matter for fresh consideration. The trial court again considered the entire case and dismissed the suit. The plaintiffs preferred A.S.No.165 1989. The lower appellate court also confirmed the findings of the trial court.
Finding of the Court:
The relationship between the parties is that of lessor and lessee. The subject matter of the lease under Ex.B-10 is also a building. The building is situated within an area attracted by the provisions of Rent Control Act. In cases where parties are governed by Rent Control Act, eviction can be had only through the procedure prescribed by that Act and only for the grounds mentioned therein, eviction can be had. When the parties are governed by a special enactment like Rent Control Act, a separate termination notice may not be necessary for, even if the relationship is terminated eviction cannot be allowed, but for the provisions of that Act. Under section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act. 1969, a tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provision of that Section or under sections 14 to 16. There are two Provisos to Section 10(1), and the Second Proviso says that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claims is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Courts finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
Issues: 1. Whether on the facts and circumstances of the case and in the light of Exx.A-15, A23, A-24 and B-5 to B-7 and the admission of D.W. 1, the lower appellate court is correct in law holding that the respondent is only lessee and not a licensee in the suit property? 2. When the defendant had denied the title of the plaintiff to the suit property, is it open to the lower appellate court to go into the question whether such denial is bona fide or not instead of applying the legal consequence involving such denial of title in the light of the observations of this Court in C.M.A. No.238 of 1992?
Ratio Decidendi: The relationship between the parties is that of lessor and lessee. The subject matter of the lease under Ex.B-10 is also a building. The building is situated within an area attracted by the provisions of Rent Control Act. In cases where parties are governed by Rent Control Act, eviction can be had only through the procedure prescribed by that Act and only for the grounds mentioned therein, eviction can be had. When the parties are governed by a special enactment like Rent Control Act, a separate termination notice may not be necessary for, even if the relationship is terminated eviction cannot be allowed, but for the provisions of that Act. Under section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act. 1969, a tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provision of that Section or under sections 14 to 16. There are two Provisos to Section 10(1), and the Second Proviso says that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claims is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Courts finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
Final Decision: The second appeal is dismissed with costs. The Revision under the Rent Control Act is also dismissed with no order as to costs.
1. Second appeal arises from a suit filed by the appellant and his adoptive mother as O.S.No. 312 of 1980, on the file of District Munsif’ s Court Nagapattinam. That suit was filed by them for the following reliefs:
(a) for mandatory injunction directing the defendant from removing all the furnitures and other articles kept by the defendant for conducting classes and to forbid from interference with the possession and enjoyment of the property thereafter.
(b) to grant such order and further reliefs which are deemed necessary and expedient in the proved circumstances of the case; and
(c) to Award costs of the suit.
2. Material averments in the plaint are, the property originally belonged to late Muthu Thandapani Chettiar. First plaintiff is his widow and second plaintiff is his adopted son. It is said that Muthu Thandapani chettiar died on 28. 1969 and the plaintiffs have succeeded to his estate, having absolute right and title over the property. It is said that the suit property is a residential building and a thatched shed. It is further said that the municipal and revenue records amply show the title and possession and enjoyment of the property by the plaintiffs predecessor in title, and they were enjoying the same, after his lifetime. It is also said that plaintiffs as owners of the building, are making periodical payment of tax due to the Municipality and the building is in occupation for the plaintiffs for domestic residential purpose. The Tamil Nadu Electricity Department is collecting consumption charges from the plaintiffs for making use of the property for domestic purpose. During the time of election, the Election Tahsildar, Nagapattinam sought permission of the plaintiffs to have election booth in the suit property and plaintiffs also permitted the same. It is said that the plaintiffs have effective possession and enjoyment of the suit property as its owners. It is further averred that the defendant is in occupation of the building as a licensee, and he is conducting classes of elementary section from 9-00 a.m. to 5-00 a.m. on all working days. The main building is fetching a monthly rent of Rs. 55 and the thatched portion is rented out for Rs. 50. It is said that as per the the terms and conditions of the licence, defendant is not authorised to use the building either before 9-00 a.m. or after 5-00 p.m., and during the closure of the section of classes, the plaintiffs were at liberty to remove the benches, stools and furnitures from the class room and keep them aside by way of gaining sufficient space for domestic purposes of the plaintiffs, their relations and friends. It is said that the plaintiffs are actually and virtually residing in the very same property and are fully utilising the premises during the rest of the hours of the day. The main doors are being closed only by the plaintiffs, and in fact, they are keeping guard over the furnitures, chairs and benches left by defendant after the closure of the classes, and the lock and key for the main door are with the plaintiffs. It is said that the occupation of the defendant is only on the basis of permission, and he has no interest in the property. He has only a licence irrecovable at the pleasure of the plaintiffs. It is further said that the building is very old and dilapidated and has fallen into ruins. Plaintiffs intend to demolish the building for the purpose of reconstruction. It is further said that the defendant is indulging in acts of violence and is also attempting to trespass into the vacant portion of the property and therefore, a notice was issued terminating the licence on 27. 1978, for which a reply was sent. It is said that the reply is bereft of truth. Non compliance of the demand has compelled the plaintiffs to institute the suit for reliefs aforementioned.
3. In the written statement filed by the defendant, it was contended that the property did not belong to the deceased Muthu Thandapani Chettiar. It was purchased by his ance
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