Judgment:
ORDER
S.S. Subramani, J.
1. In both these revisions, tenant is the revision petitioner. C.R.P. No. 890 of 1995 arises from R.C.O.P. No. 977 of 1990, on the file of IV Judge, Small Causes Court at Madras. The said eviction petition was filed by the landlady alleging that the building is required for the bona fide own occupation of her newly married son, who was examined as P.W. 1 in this case. The other revision, namely, C.R.P. No. 3444 of 1991 is against R.C.O.P. No. 3320 of 1985, which is an application for fixation of fair rent filed by the landlady. The agreed rent was Rs. 175. Rent Controller fixed the fair rent at Rs. 1,638 per mensem. When the matter was taken in appeal, by tenant as well as landlady, fair rent was fixed at Rs. 1,408.
2. In the eviction petition, the case of the landlady is that she needs the building bona fide for her own occupation, in the sense that her son who is a member of the family got married recently. The son has no other building of his own and, therefore, she requires the building for the residence of her newly married son.
3. As against the said contention, tenant averred that the landlords are in possession of various other buildings. The bona fide of the claim was also disputed. Tenant contended that when the landlady has filed a petition for fixation of fair rent claiming enhanced rent, that itself shows that the claim is not in good faith. In the application for fixation of fair rent, landlady claimed rent at Rs. 4,160. But the Rent Controller fixed the same at Rs. 1,638 only, and it was also subsequently reduced to Rs. 1,408 by the Appellate Authority. According to the tenant, since the landlady could not get the expected enhanced rent, she has filed the eviction petition without any good faith.
4. In the eviction proceedings, the landlady's son for whose requirement, the building in question is sought, was examined as P.W. 1. R.Ws. 1 and 2 were examined on the side of the tenant. Exs. R-1 to P-4 were marked on the side of the landlady. Exs. R-1 to R-6 were marked on the side of the tenant. Exs. C-1 to C-6 were marked as court exhibits.
5. On evaluating the entire evidence, Rent Controller came to the conclusion that the claim of the landlady is not bona fide. It was found by the Rent Controller that the landlady has got other buildings which she could use for her requirement, and the present claim is not justified. Against that order, landlady preferred R.C.A. No. 1126 of 1993, on the file of VIII Judge, Small Causes Court, Madras. The Appellate Authority reconsidered the entire evidence and came to the conclusion that if the son is not having any building of his own, merely because his father or younger brother, or even the petitioner having a building need not disqualify him. The claim was found to be bona fide, and eviction was ordered. It was further found that the application for fixation of fair rent will not debar the landlady from putting forth a claim on the ground that she bona fide requires the building for her own occupation. What the landlady wants is only an assessment of the fair rent under the Rent Control Act.
6. It is against the said judgment, C.R.P. No. 890 of 1995 is filed.
7. The main question to be considered in this case is, whether the claim of the landlady is bona fide or not.
8. It is settled law that a claim for eviction, on the ground of bona fide own occupation, that requirement must be available to the landlord not only on the date of petition but it should continue to be there on the date of final adjudication of rights. If, in between the periods, there is a change of circumstance due to subsequent events, that is also a matter which should be taken into consideration by this Court.
9. The appellate authority has found that P.W. 1 has no building of his own. Ownership or possession of a building by the parents or younger brother will not disqualify the landlord from getting possession of another building if the person for whose requirement the building is needed, is having no other building.
10. The legal position as found by the appellate authority can never be in dispute. But in this case, there is a change in the circumstance. It is not in dispute that the landlady died after the filing of these revision petitions. She was residing in her own building at No. 150, Avvai Shanmugham Salai, Madras. It is in evidence that the landlady has constructed a building in an area of more than two grounds, and P.W. 1 is also an occupant of that building.
11. After the filing of the revision petitions, the landlady died, and P.W. 1, who is also one of the legal representatives, has been impleaded as third respondent in the revision petition. So, the original position of a dependent son has now changed, and now P.W. 1 is also a landlord. This change of circumstance also will have to be taken into consideration by this Court.
12. Learned Counsel for the landlady submitted that even though P.W. 1 is now impleaded as one of the landlords and legal representatives of deceased land-lady, it does not disqualify him from getting possession of the demised premises. According to him, even if he is impleaded as one of the landlords, he is only a co-owner along with others. He has no exclusive right. It is further contended that Door No. 150, Avvai Shanmugham Salai, Madras cannot be said as a building of his own when there are other legal heirs to the deceased landlady.
13. Under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, a landlord is entitled to get possession of the building if he or any member of his family is not occupying a residential building of his own in the City, Town or Village concerned. In Section 10(3)(a)(ii) of the said Act, it is further said that in the case of a non-residential building also, in case if the landlord or member of his family is not occupying a building of his own, he is entitled to get possession. In both Sections 10(3)(a)(i) and 10(3)(a)(iii), one of the qualifications for getting pos session is that the landlord or the person for whose requirement the building is sought to be evicted, should not own a building of his own (whether the requirement is residential or non-residential in the City, town or village. It is on the basis of the words 'his own', learned Counsel for the landlady argued that even if P.W. 1 has now become the landlord, building No. 150 cannot be said to be his own. None has a case that after the death of the landlady, a partition has been effected, and P.W. 1 was given any right over the building. At the time of arguments, both sides argued the case as if P.W. 1 continues to be a co-owner in regard to Building No. 150, Avvai Shanmugham Salai, which is situated in a land of more than two grounds. If P.W. 1 is a co-owner, what is the legal consequence.
14. In a recent decision of the Supreme Court reported in Super Forgings and Steels (Sales) Pvt. Ltd. : (1995)1SCC410 , this question came for consideration. That is a case of non-residential building. After filing the eviction petition, landlord died, and the person for whose requirement the building was sought, became a landlord. As a co-owner, he was also in possession. The question was, whether the subsequent event will disqualify him from getting possession. Their Lordships said that under Indian Law, a co-owner is the owner for all purposes, and the words 'his own' envisaged under Section 10(3)(a)(iii) is not only that of which he is an absolute owner, but also that of which he is a co-owner. In that view of the matter, their Lordships disqualified the person from getting possession of the building. Paragraphs 6 to 13 of that judgment are relevant for our purpose. They read thus:
That a landlord who, for purposes of carrying on his business, is not occupying a non-residential building of his own in the city can get under Section 10(3)(a)(iii) of the Act, Possession of another non-residential building of his own in the city in the occupation of a tenant was not disputed on behalf of the tenant appellant. But it was contended on behalf of the tenant appellant that a landlord occupying for purposes of carrying on his business a non-residential building, of which he is a co-owner cannot claim the benefit of ground of eviction available under Section 10(3)(a)(iii) of the Act against a tenant in a non-residential building of which he is a owner or a co-owner. The sustainability of that contention was questioned, rather strenuously, by learned Counsel for respondents 2 to 11 on the plea that a landlord who is a co-owner of non-residential building where he carries on his business, not being its sole owner, such building cannot be regarded as 'his own' envisaged under Section 10(3)(a)(iii) of the Act as would disentitle him to the benefit of the ground of eviction, available thereunder. We find it difficult to accept the plea advanced on behalf of respondents 2 to 11 in questioning the sustainability of the contention raised on behalf of the appellant tenant.
Section 10(3)(a)(iii) of the Act insofar as it is material, reads thus:
10(3)(a) ...
(i) ...
(ii) ...
(iii) in case it is any other non-residential building, if the landlord or (any member of his family) is not occupying for purposes of a business which he or (any member of his family) is carrying on, a non-residential building in the city, town or village concerned which is his own.
If a landlord is a co-owner of a non-residential building in the city, town or village concerned, which he is occupying for purposes of carrying on his business, will be not be occupying therefor a non-residential building of his own envisaged in the above Section 10(3)(a)(iii), as would disentitle him to the ground of eviction available thereunder being the real question needing our answer in the light of the aforesaid plea of learned Counsel for respondents urged in questioning the sustainability of the contention raised on behalf of the appellant tenant, we have to find the answer therefor.
The answer to the said question in our view, cannot be anything other than that a non-residential building in occupation of landlord which is 'his-own' envisaged in Section 10(3)(a)(iii) above, is not only that of which he is an absolute owner, but also that of which he is a co-owner, for a co-owner of a building who is its landlord is regarded under Rent Control laws of our country as its owner entitled to obtain possession of such a building from a tenant for his bona fide requirement.
In Sri Ram Pasricha v. Jagannath : [1977]1SCR395 , a three Judge Bench of this Court had to consider the question whether a co-owner/landlord can be said to require the premises for his own occupation within the meaning of the expression 'if he is the owner' in Section 13(1)(f) of the West Bengal Tenancy Act, 1956 which read thus : (S.C.C. p. 189, para. 20)
13. Protection of tenant against eviction, (1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely;
*** *** ***(f) where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held.
The Bench which considered the aforesaid question with reference to the said provision of Rent Control law, expressed its view thereon, thus : (S.C.C. p. 190, paras. 27-28)
Jurisprudentially it is not correct to say that a co-owner of a property is not is owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.... We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is.
The owner in the expression 'if he is the owner' in Section 13(1)(f) of the West Bengal Tenancy Act, 1956 when as opined by this Court ought to be regarded as 'the co-owner' inasmuch as the 'the owner', like any sole owner of property, there would be no justification for us to hold that 'the non-residential building which is his own' in Section 10(3)(a)(iii) of the Act, can only be that of its absolute 'owner' and not of its co-owner.
Therefore, we have no hesitation in reaching the conclusion that the respondents, who are carrying on the business of M/s. Fakruddin and Company in non-residential building No. 151, Linghi Chetty Street, Madras, of which they are co-owners can be regarded as landlords, who are occpying their own non-residential building envisaged under Clause (iii) of Section 10(3)(a) of the Act, as would disentitle them to retain the benefit of the eviction order made by the Rent Controller against the tenant in respect of the petition non-residential building at the instance of the deceased respondent 1, for carrying on his business on the ground that he did not occupy his own non-residential building for the purpose. Consequently, the eviction order of the Rent Controller as affirmed by the appellate authority and the High Court, which is under challenge in this appeal, calls to be set aside taking into consideration the developments which have taken place during its pendency in this Court.
[Italics supplied]
15. The wordings in Section 10(3)(a)(i) and (ii) are also similar. P.W. 1 has now become a co-owner landlord. That means, he is in possession of a building of his own, which disqualifies him from getting possession of a building of his own, which disqualifies him from getting possession of the same.
16. Learned Counsel for the respondents relied on the decision reported in Shapoorji Pollanji & Co. (P) Ltd. v. A. Nishat (1990) 2 L.W. 289 wherein Ratnam, J., as he then was, considered a similar question. In that case, P.W. 1, a co-owner, was having only a fractional interest and, therefore, not disqualified from getting possession of the building. I do not think the said decision can stand a moment's scrutiny in view of the settled position of law enunciated by the Supreme Court, referred to above.
17. Learned Counsel for the petitioner relied on the decision reported in C. Keval Chand and Anr. v. Karuppanna Mudaliar and Ors. : (1997)1MLJ459 In that case, a distinction was made between a joint family and a co-owner. In that judgment, I have said that a co-owner cannot be equated with that of a member of a joint Hindu family where the 'Kartha' is the owner, and the members have only a right of residence, and, legally also, a co-ownership and a joint family are entirely different. Learned Counsel wanted that the principle of coparcenary as that of a Hindu joint family should be taken into consideration in this case. That principle can never be applied so far as this case is concerned, since the landlords are Muslims, to whom the principle of joint family is not applicable. Therefore, the decision reported in (1997) 1 L.W. 335, also will have no application. If so, in view of the subsequent events; I hold that the landlords are not entitled to get possession of the building. Even if the legal possession as found by the Authority below may be correct, in view of the subsequent development, the legal position as found by the Appellate Authority may not have any application here at this stage.
18. In the result, I dismiss R.C.O.P. No. 977 of 1990, on the file of IV Judge, Small causes, Court at Madras. The judgment of the Appellate Authority is set aside, and that of the Rent Controller is restored. The civil revision petition is allowed. Since, I am allowing the revision (C.R.P. No. 890 of 1995) taking into consideration the subsequent event, I direct the parties to suffer their respective costs.
19. C.R.P. No. 3444 of l991. Insofar as C.R.P. No. 3444 of 1991 is concerned, I do not think the revision petition can succeed in this case. Even though various grounds have been urged by learned Counsel, the main ground urged by him was regarding the land value fixed by the Authority below and also whether the amount awarded for Schedule of amenities is correct or not.
20. So far as the land value is concerned, landlord claimed the same at Rs. 9,00,000 whereas the tenant wanted the same to be fixed at less than Rs. 1,00,000. It is seen that various Commissioner's Reports have been filed, for evaluating the value. Certain documents were filed by the landlord to prove the land value. But the documents were not proved, and no opportunity was given to the tenant to substantiate whether the contents in those documents are correct or not. When the Commissioner visited the property, he found that the value of the land in the nearby locality was Rs. 1,22,000. The Rent Controller, taking into consideration the importance of the locality found that the land value has to be fixed at Rs. 1,25,000. The said finding was also confirmed by the appellate authority. It is not disputed by either party that Lloyds Road, where the property is situated, is one of the most important and posh localities of Madras City. Court can also take judicial notice of certain facts, and, therefore, taking into consideration the importance of the locality, I do not think the land value fixed by the Authorities below at Rs. 1,25,000 is in any way excessive. No serious argument was put forward before the appellate authority Regarding the land value. I do not think that any reduction should be made in that regard. Regarding the award of 7% towards amenities also, appellate authority has considered the same in paragraph 10 of its judgment, which, according to me, is reasonable, and the same has to be accepted. No impropriety or illegality is shown to have been committed by the appellate authority in that regard also.
21. In the result, I confirm the judgment of the appellate authority in R.C.A. No. 441 of 1988, on the file of Court of Small Causes, Madras, and dismiss C.R.P. No. 3444 of 1991. There will be no order as to costs in both the revisions.
22. In the result, C.R.P. No. 890 of 1995 is allowed and Eviction Petition No. 977 of 1990, on the file of IV Judge, Small Causes Court at Madras is dismissed. C.R.P. No. 3444 of 1991 is also dismissed, however, without any order as to costs.