Judgment:
G. Rajasuria, J.
1. This appeal is focussed as against the judgment and decree passed in O.S. No. 566 of 1991 dated 11.11.1994 on the file of the Principal Subordinate Judge, Dindigul.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Broadly but briefly, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
(i) The suit property originally belonged to one deceased Ramasamy Pillai who during his life time had appointed one Muthusamy Pillai, the husband of the first defendant and father of the defendants 2 and 3, to look after his properties during the former's absence from India in connection with his stay in Cylon. Subsequently, Ramasamy Pillai returned to India and asked for accounts from his agent Muthusamy Pillai and also asked him to vacate the suit property; however, the latter prayed for some time to vacate the same. Ramasamy Pillai issued lawyer's notice on 07.04.1977 which was replied by Muthusamy Pillai on 16.09.1977 raising various contentions including the one that he acquired title over the suit property by his adverse possession for over fourteen years.
(ii) Subsequently, Ramasamy Pillai died leaving behind his two sons namely Shanmugam and Dharmalingam. They by way of oral family arrangement during the year 1980, got the estate of Ramasamy Pillai divided and Dharmalingam was allotted the suit house, whereupon Dharmalingam sold the suit house to the plaintiff who filed the present suit. After the death of Muthusamy Pillai, his wife and children are in illegal occupation of the suit house. However, they agreed to pay rent at the rate of Rs. 150/- per mensum which they paid till the year 1984 and thereafter, they had a volte face and refused to pay rent. Thereupon, Rent Control case was filed by the plaintiff herein in R.C.O.P. No. 1 of 1989 on the file of the District Munsif, Melur against the first defendant who participated in the proceedings and claimed title to the suit property tracing the title under her husband. Thereupon, the plaintiff herein allowed the R.C.O.P. No. 1 of 1989 to be dismissed so as to file the original suit as he was advised so.
4. Per contra, denying and disputing, challenging and impugning the averments, the second defendant filed the written statement which was adopted by the defendants 1 and 3, with the averments inter alia thus:
The defendants are not the trespassers in the suit property and the said Muthusamy Pillai acquired prescriptive title over it even during the life time of Ramasamy Pillai. In the reply notice dated 16.09.1977 itself, Muthusamy Pillai set out the facts that already the relationship of Principal and the Agent between Ramasamy Pillai and Muthusamy Pillai, came to an end by 1963 itself by settling the accounts. In consideration of the honest service and the work rendered by Muthusamy Pillai as agent towards Ramasamy Pillai, the latter fixed the total remuneration due to Muthusamy Pillai in a sum of Rs. 8,500/- (Rupees Eight Thousand and Five Hundred only) at the rate of Rs. 100/- per mensum during the relevant period of agency and instead of paying the said amount of Rs. 8,500/- in cash to Muthusamy Pillai, the suit property was allowed to be in the occupation of Muthusamy Pillai and his family in their own right as owners and the fact remains that eversince 1950, they were in possession and enjoyment and from the year 1963 onwards, their possession got changed as the one on their own right. Muthusamy Pillai also acquired title by adverse possession by virtue of his continuance, open, hostile and uninterrupted enjoyment of the suit property for over the period of limitation.
5. The trial Court framed several issues and during trial, on the side of the plaintiff, she examined herself as P.W. 1 and Exs. A. 1 to A.16 were marked and on the side of the defendants, the second defendant examined himself as D.W.1 and Exs.B.1 to B.32 were marked.
6. Ultimately, the trial Court decreed the suit.
7. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the second defendant filed this appeal on the inter alia grounds thus:
The trial Court failed to consider each and every issue properly and give its findings thereon. The evidence of D.W.1 was wrongly rejected as though he was thirteen years old boy at that relevant time and that he was not competent to speak about the oral gift which took place between Ramasamy Pillai and Muthusamy Pillai. The documentary evidence marked on the side of the defendants were not considered properly. Ex.B.2, would prove the hostile possession of the defendants as against the plaintiff. The trial Court failed to consider that for the reply notice, Ex.B.2, sent by Muthusamy Pillai to the deceased Ramasamy Pillai, no re-joinder was given by the latter. Accordingly, the appellant prayed for the dismissal of the suit.
8. However, for the first time, the learned Senior Counsel for the appellant, during arguments raised a law point that the suit itself was bad for want of obtention of a finding from the Rent Controller that there was bona fide denial of title by the respondent, (the first defendant therein) in R.C.O.P proceedings.
9. Since this is a pure question of law, it could be considered even at the appellate stage for the first time. Territorial and pecuniary jurisdictions could be overlooked, if already much water has flown under the bridge, whereas if the Court lacks jurisdiction subject matter wise, then it would cut at the root of the proceedings.
10. The points for consideration are therefore as under:
(i) Whether the original suit is bad for want of a finding obtained from the Rent Controller relating to the bona fide title dispute between the parties as per Second Proviso to Sub-section (1) of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act?
(ii) Whether there is any infirmity in the judgment of the trial Court in negativing the defendants' plea of prescriptive title and setting up title in themselves?
11. The learned Counsel appearing on either side in unison would agree to the proposition that in the event of this Court's finding that the suit itself is bad for non-obtention of such a finding from the Rent Controller that there was bona fide denial of title on the part of the first defendant, then the question of probing into other facts would not arise. As such, I would proceed to consider the jurisdiction point in depth.
12. The learned Senior Counsel for the appellant would cite the decision in Rukmani v. Narayani reported in : (1996)2MLJ477 . Certain excerpts from it, would run thus:
12. The second point, namely, jurisdiction of Civil Court entertaining the suit for recovery of possession, admittedly, the suit property is within the Coimbatore Municipal limits. In this respect, the trial Court relying on the decision of this Court reported in Rajammal v. Athamarammalu 1978 T.L.N.J. 272 came to the conclusion that in spite of provisions of the Rent Control Act, the Civil Court has jurisdiction and held that the suit filed by the plaintiff is maintainable. The lower appellate Court, on the basis of the subsequent judgment reported in Abdul Khader v. Rajammal (1990) 1 M.L.J 331 came to the conclusion that the suit is not maintainable. The Civil Court cannot by-pass the procedure contemplated under the Second Proviso to Section 10(2) and straight-way grant a decree for possession without reference to the provisions of the Rent Control Act and obtaining orders thereunder. In this respect, Mr. K. Srinivasan, learned Counsel for the respondent brought to my notice the recent decision of the Supreme Court reported in East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. : [1991]2SCR310 which is directly on this point. In the said judgment, the Apex Court, after referring the relevant provisions under the Tamil Nadu Buildings (Lease and Rent Control) Act and also referring various earlier decisions, has held that,
Section 10 of the Act, as seen above, prohibits eviction of a tenant whether in execution of a decree or otherwise, except in accordance with the provisions of that Section or Sections 14 to 16. These provisions as well as the other provisions of the Act are a self-contained Code, regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by tribunals constituted under the statute and whose orders are endowed with finality. The remedies provided by the statute in such matters are adequate and complete. Although the statute contains no express bar of jurisdiction of the Civil Court, except for eviction of tenants 'in execution or otherwise', the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their competence to administer the same remedy as the Civil Courts render in civil suits. Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the Legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it. Although the jurisdiction of the Civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and this Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute....
Judged by this test, the jurisdiction of the Civil Court in respect of eviction of tenants is barred except to the extent and subject to the conditions prescribed under Section 10, the Second Proviso to Section 10(1) reads:
Provided further that whether the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim 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 Court finds that such denial does not involve for forfeiture of the lease or that the claim is unfounded.
What is stated in the second Proviso to Section 10(1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of eviction. But, the jurisdiction cannot be invoked otherwise than as stipulated to the Second Proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil Court is that the tenant should have denied the title of the landlord or claimed right or permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16, notwithstanding that the Court has found that the tenant's denial of the landlord's title does not involve forfeiture of the lease, or his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.Significantly, the jurisdiction of the Civil Court can be invoked only where the Controller comes to a decision, and record a finding, that the denial or claim by the tenant, as aforesaid, is bona fide. If the controller were to come to the opposite conclusion, no question of invoking the jurisdiction of the Civil Court would arise. But the decision of the Controller is concerned solely with the bona fides and not the correctness or validity of the denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate Civil Court which is the more competent forum in such matters See the principle discussed in Magiti Sasamal v. Pandab Bissoi : [1962]3SCR673 . In such an event, the Civil Court will become competent to pass a decree for eviction on any of the grounds mentioned in Section 10 or Section 14 to 16. On the other hand, if the decision of the Controller is that the tenant's denial or claim is not bona fide the jurisdiction of the Civil Court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction, after affording the parties a reasonable opportunity of being heard, on any one of the grounds specified under the statute, including the ground that the tenant has, without bona fide denied the landlord's title or claimed right of permanent tenancy. What is significant is that the decision of the Controller, duly recorded by him, as regards the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the Civil Court. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the section is, therefore, incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and of no effect.
The other judgment relied on by Mr. K. Srininvasan is in the case of Natesan Pillai v. Sethumani Ammal (1992) 1 M.L.J 9 : (1992) 2 L.W. 564. In the said judgment Bellie, J., after referring East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. : [1991]2SCR310 has held that,
It is the definite case of the plaintiff that the defendant is a tenant. Now, as per Section 10(1) of the Act a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 14 to 16. Therefore it is imperative that the plaintiff has to initiate proceedings for eviction against the defendant in a Rent Control proceedings. To this Section 10(1) an exception is provided under the Second Proviso according to which where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial of title is bona fide and if he records a finding to that effect the landlord shall be entitled to sue for eviction in Civil Court and the court may pass a decree for eviction on any of the grounds mentioned in the said Section notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
In this case, in fact, the plaintiff has filed R.C.O.P. No. 17 of 1981, but however, stating that the defendant has denied the tenancy and claimed right to the property by virtue of an alleged agreement of sale, sought to withdraw the petition and the petition was accordingly dismissed as withdrawn. There was no finding of the Rent Controller as to whether there was denial of title by the defendant and the denial is bona fide. Therefore at that stage the landlord need not have withdrawn the petition and ought to have pursued it. This being the case, the present suit is not competent.
Mr. Parthasarathy, in support of his contention has relied on a judgment of the Supreme Court East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. : [1991]2SCR310 wherein at paragraph 8 it is laid down as follows:
What is stated in the Second Proviso to Section 10(1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of eviction. But this jurisdiction cannot be invoked otherwise than as stipulated in the Second Proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil Court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16 notwithstanding that the Court has found that the tenant's denial of the landlord's title does not involve for future of the lease, or his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.
In paragraph 9, towards the end, it is again stated:
What is significant is that the decision of the Controller, duly recorded by him as regard the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the Civil Court. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by Section is, therefore, incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and of no effect.
13. The abovesaid decision clearly show that although the jurisdiction of the Civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and the Supreme Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the Section, is therefore incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and of no effect. In view of the law laid down by the Apex Court and the subsequent decision of this Court, I am in entire agreement with the arguments of the learned Counsel for the respondents and consequently, confirm the judgment and decree of the lower appellate Court, holding that the suit filed by the plaintiff is not maintainable.
13. In the aforesaid judgment, this Court relied on the judgment of the Honourable Apex Court and arrived at the conclusion that such obtention of finding from the Rent Controller relating to bona fide denial of title is sine quo non for filing the civil suit. No contrary decision has been cited on the side of the respondents.
14. However, the learned Counsel for the plaintiff would cite the decision of this Court in Dhandapani v. Karpakam reported in : (2003)2MLJ732 , which is on the point that on denial of title by the tenant, the civil suit is maintainable without resorting to Tamil Nadu Buildings (Lease and Rent Control) Act.
15. However, in the aforesaid decision of this Court, one other decision of this Court in Rukmani v. Narayani reported in : (1996)2MLJ477 and the decision of the Honourable Apex Court in East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. reported in : [1991]2SCR310 were not considered.
16. The learned Counsel for the plaintiff would cite the following decisions:
(i) Lachoo Mal v. Radhye Shyam reported in : [1971]3SCR693 .
(ii) V. Natarajan v. Saliyur Mahajana Sangam reported in : (2004)3MLJ682 .
17. The second cited decision of this Court is based on the first cited precedent of the Honourable Apex Court in Lachoo Mal's case, wherein it was held that the tenant who earlier questioned the jurisdiction of the civil Court cannot question the jurisdiction of Rent Controller. But, here the facts are different from the one dealt within the aforesaid decisions. The respondent/plaintiff in this case approached the Rent Controller at the first instance. But, instead of getting a finding relating to the bona fide denial of title by the first defendant herein, simply allowed the R.C.O.P, to be dismissed and approached the civil Court which now turned to be fatal to his suit. As such, in this factual matrix, the decisions relied on by the plaintiff are not relevant.
18. It is evident from the above narration of facts that R.C.O.P. No. 1 of 1989 was allowed to be dismissed without obtaining a finding.
19. Hence, in this view of the matter, the original suit was not maintainable and accordingly, the suit is liable to be dismissed. There is no necessity to decide on other issues and points.
20. In the result, this appeal is allowed and the judgment and decree of the trial Court is set aside and the original suit is dismissed, giving liberty to the plaintiff to approach the Rent Controller as per law and depending upon the circumstances to proceed further in the matter.