Heard both sides.
2.The tenants are the revision petitioners. The respondent/landlord filed RCOP No.304 of 1986, on the file of the Principal Rent Controller, Trichy, for eviction on the ground of wilful default in the payment of rent and for demolition and reconstruction.
3.The learned Rent Controller allowed the application on the ground that the tenants committed wilful default in the payment of rent and denied the title of the landlord and rejected the eviction petition on the ground of demolition and reconstruction. The tenants aggrieved by the same, filed appeal in RCA.No.7 of 1997, on the file of the Rent Control Appellate Authority, Trichy and the learned Rent Control Appellate Authority confirmed the finding of the learned Rent Controller and dismissed the appeal and aggrieved by the same, this civil revision petition is filed by the tenants.
4.The case of the landlord is that the tenants executed an agreement of lease, dated 30.04.1985 agreed to pay Rs.1,500/- per month as rent and the period of lease is 11 months and they have committed wilful default in the payment of rent from August 1985 and the landlord requires the building for demolition and reconstruction.
5.The tenants filed the counter stating that the schedule property mentioned in the petition does not exist and they have not executed any agreement of lease in favour of the landlord and they purchased the property from Narayanaswamy Konar and before his purchase, he was a tenant under him and the vacant site was leased out to him and thereafter, the tenant has put up construction and paid electricity bills in his name and the landlord/respondent subsequently purchased some portions of property from the said Narayanaswamy Konar and therefore, the revision petitioner is in possession of the property in his own right and he is not a tenant under the landlord/respondent and hence, there is no question of payment of rent much less wilful default and there is no relation of landlord and tenant between the parties.
6.Before the Rent Controller, the landlord examined himself and one of the tenants examined himself and on the side of the landlord, three documents were marked and on the side of the tenants, 3 documents were marked and an Advocate Commissioner was appointed to inspect the suit property and he has also filed a report as well as a rough plan and those documents were marked as Exs.C1 to C2.
7.The learned counsel appearing for the revision petitioners/tenants, Mr.S.Anand Chandrasekaran, vehemently contended that in this case, admittedly there is a dispute with regard to the identity of the property and the tenants purchased property of an extent of 60' x 13' from the original owner, Narayanaswamy Konar and he is in possession of the same by putting up construction and in the sale deed in favour of the landlord, it is also mentioned that the property sold to the landlord is west of the property belonging to the tenants and hence, there is no relationship of tenant and landlord between the parties.
8.He further submitted that in the petition filed by the landlord, he has not mentioned anything about the alleged agreement of lease executed by the tenants and only in evidence, the lease deed was brought into light and the tenants disputed the signature and the execution of the lease deed in favour of the landlord and the Courts below, without appreciating all these points, allowed the application filed by the landlord and when the tenant has raised the bona-fide dispute about the title of the landlord over the property, the Courts below ought to have directed the landlord to file a suit for declaration before the civil Court and erred in ordering eviction and in support of that, relied upon the judgment reported in 1994(2) MLJ, 447 in the case of E.Venkata Naicker Trust, a Private Trust represented by its Manager, E.V.K.Selvaraj vs. Muthusamy Chettiar and (2002)3 SCC 98, in the case of J.J.Lal Pvt. Ltd and others vs. M.R.Murali and another, in support of his contention.
9.On the other hand, Mr.Ramesh, the learned counsel appearing for the respondent submitted that there is no dispute regarding the identity of the property and both the Courts below have elaborately discussed about the identity of the property and have rightly came to the conclusion that the property purchased by the landlord is in Survey No.394 and the property purchased by the tenant is in Survey No.349 and even though, the lease deed was not mentioned in the petition, the same was mentioned in the notice sent by the landlord prior to the filing of the petition and therefore, it cannot be stated that it was created for the purpose of the petition and even though the tenant has denied the signature, no attempt was made by the tenant to prove the same by referring the document to handwriting expert and the Courts below after comparing the signature found in the vakalat and other documents, rightly came to the conclusion that the signature found in the lease agreement was that of the tenants and ordered eviction. It is, therefore, submitted that there is no need to interfere with the order of the Courts below.
10.I have considered the rival contention of both the counsels.
11.In this case, admittedly the tenant has raised the points that the property described in the petition does not exist. In the counter, it is especially stated that the property described in the petition does not exist. He further pleaded that the revision petitioner is the owner of the petition mentioned property and the landlord has no title over the same and there is no relationship of the landlord and the tenant between the parties.
12.It is admitted by the landlord in evidence that his property is lying west of the tenants property and the tenant's property was also mentioned as belonging to Subbiah Patarai, in his sale deed and there is a vacant site between Subbiah Patarai and the property purchased by him. The specific case of the respondent is that he sold 500 sq.feet of property and in the remaining extent, the petition mentioned property is situate and that was leased out to the tenants. In the notice Ex.P3 dated 15.04.1986, the schedule of property was mentioned as having an extent of 40 feet north-south and east-west on the northern side 3 feet 10 inches and on the south side 12 feet and 6 inches and bounded on the west of the property belonging to the tenants (o.v!;.394 y; jA;fSila nlj;jpw;Fk; fpHf;F) and east of the property purchased by the landlord from Narayanasamy Konar and bounded by North and South by east-west pathway. It is specifically stated in the petition that the property is situate in T.S.No.394 and bounded on the east and west by the petitioner's property and north and south by east-west pathway.
13.It is seen from the tenancy agreement Ex.P2 that the land, which was leased out to tenants was situate within the following boundaries:-"Western boundary is the property of the tenant(o.v!;.394y; jA;fSila nlj;jpw;Fk; fpHf;F)situate in Survey No.394, eastern boundary is the property belonging to the landlord purchased by him from Narayanasamy Konar and North-south is bounded by East-west pathway. The same boundary is mentioned in the notice. But in the petition, it is stated that the property is situate in T.S.No.394 and bounded on the east and west by the petitioners' property and north and south by east-west pathway. It is also admitted that in the sale deed of the revision petitioner, the eastern boundary is described as property belonging to the tenant, which is mentioned as Subbiah Patarai. It is further admitted by the landlord that he sold a portion of the property purchased by him from Narayanasamy Konar and out of the remaining extent, a portion was let-out to the tenant. The Courts below taking note of the discrepancy in survey number mentioned in the tenants' sale deed came to the conclusion that the tenants have purchased the property in survey No.349 whereas the landlord has purchased the property in Survey No.394 and therefore, the tenant cannot claim any right of ownership over the property purchased by the landlord and no attempt was made by the tenant to prove that the property in dispute is his property and therefore, the tenant has committed default in the payment of rent and wilfully denied the title of the landlord and committed default in the payment of rent and therefore, eviction was ordered, which according to me is erroneous. As rightly pointed by the learned counsel appearing for the revision petitioners, in the notice sent by the landlord, Ex.P3, it is stated that the tenanted property is situate on the western side and it is in Survey No.394. The same recitals regarding the description of the western boundary was also mentioned in the lease deed. Therefore, from these two documents, Exs.P2 and P3, it is made clear that the property purchased by the tenant is also in survey No.394 and it is not in survey No.349 as found by the Courts below.
14.In the notice as well as in the agreement of lease, western boundary is the property belonging to the tenant, which is in Survey No.394. In the sale deed, Ex.P1 it is clearly stated that the western boundary is the property belonging to Subbiah patarai, which is admittedly the property belonging to the tenant. Therefore, from Exs.P1, P2 and P3, it is made clear that the western boundary of the property alleged to have been leased out to the tenant is the tenants' property. But in the petition, it is stated that the western and eastern side are the properties of the landlord.
15.As stated supra, in Exs.P2 and P3, it has been specifically stated that the tenants' property is situate in Survey No.394. Therefore, from the exhibits filed in support of this petition and the schedule property as described in the petition, there are discrepancies with regard to the western boundary. Though, the landlord has mentioned about the agreement of lease deed, dated 30.04.1985 in the notice, it was not mentioned in the petition and it was also not included along with the documents filed along with the plaint and only during evidence, the unregistered and unstamped documents were produced. As per Ex.P3, the period of lease is for 11 months and therefore, it does not require registration. Nevertheless, it requires stamp duty and under
section 35 of the Indian Stamp Act, without proper stamp duty, the Court should not have been admitted the documents. It is further admitted by the tenant that the suit property has not been identified by the Commissioner in the plan, and the landlord has not filed any objection to the Commissioner report.
16.In the Commissioner's plan, the suit property was described as 'ABCD' and it does not tally with the measurement given in the petition and no explanation was given by the landlord in respect of area described by the Commissioner as the suit property. Both the Courts below proceeded on the presumption that the tenant has executed the lease deed and in the sale deed of the tenant the survey number is mentioned as 349 and the suit property is in survey No.394 and therefore, the tenant has wilfully denied the title and committed default in the payment of rent. According to me, the findings of the Courts below regarding the identity of the property is not correct. As stated supra, there is a discrepancy regarding western boundary and even assuming that the tenant has executed the lease deed as evidenced by Ex.P2, the suit property mentioned in the petition is not the same property as described in the lease deed and therefore, the lease deed cannot be taken advantage of by the landlord to come to the conclusion that the tenant has admitted the tenancy.
17.Both the Courts below have held that there is a difference in the survey number in the tenant's sale deed and the tenant has purchased the land in survey No.349 and the landlord purchased the land in survey No.394 and therefore, the tenant does not have any property in that area without taking into consideration the description of the property mentioned in Ex.P2 and P3 wherein it has been stated that the western property is the property belong to the tenant which is in survey No.394. Further, in the sale deed it is mentioned that the western property belonged to Subaiya Patarai, which belongs to the revision petitioner. Considering all these aspects, I am of the opinion that the landlord has not proved that he is the owner of the property mentioned in the petition and the dispute raised by the tenant is a bona-fide one and when the tenant has disputed the title of the landlord over the property and it is bona- fide, the Courts below ought to have referred the matter to the civil Court and should not have ordered eviction.
18.As held by the Honourable Supreme Court in the judgment reported in (2002)3 SCC 98, in the case of J.J.Lal Pvt. Ltd and others vs. M.R.Murali and another, a mere denial of the title of the landlord is not enough; such denial has to be "not bona-fide" and the Honourable Supreme Court has further held as follows:-
"Not bona-fide" would mean absence of good faith or non-genuineness of the tenant's plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be "not bona fide". Therefore to answer the question whether an assertion of denial of the landlord's title by the tenant was bona-fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen."
19.In this case, taking into consideration of the circumstances as stated above, in my opinion, the dispute raised by the tenant is a bona-fide one and therefore, the Rent Controller has no jurisdiction to order eviction and ought to have referred the matter to the landlord to establish his title before the civil Court and without appreciating these facts, both the Courts below have ordered eviction.
20.Hence, the orders of the Courts below are set aside and accordingly, this civil revision petition is allowed. No costs.
er To,
1.The Rent Controller, Trichy.
2.The Rent Control Appellate Authority, Trichy.