ORDER
1. The legal representative of the petitioner in I.A.No.434 of 2002 in O.S.No.114 of 2002 on the file of the District Munsif, Thiruvottiyur is the revision petitioner.
2. The suit in O.S.No.236 of 1988 (later re-numbered as O.S.No.114 of 2002) was filed by one Kannappan, claiming to be the owner of the suit property, for recovery of possession. The case of the plaintiff was that the first defendant in that suit viz., Venkiah alias Venkatesalu was the tenant under the plaintiff in respect of the vacant site and without the consent of the plaintiff, the said tenant Venkiah alias Venkatesalu sublet the portion of the land let out to him and also sold the superstructure to one Krishnan Nair and the second defendant Bhakyam, who claims to be the wife of Krishnan Nair, was only a sub-tenant and she is not entitled to the benefits of Tamil Nadu City Tenants Protection Act and the main tenant was not in possession of the property and therefore, the suit was filed for the relief prayed for.
3. The second defendant Bhakyam filed a statement stating that she is a tenant under the plaintiff Kannappan and her husband put up the superstructure and after the death of her husband, she is in possession of the property in the capacity of tenant and as his legal heir, she is entitled to claim the status of a tenant and she also filed application under section 9 of the Tamil Nadu City Tenants Protection Act for purchasing the vacant land as she is entitled to the benefits of that Act and the notice of termination was not valid and it was not issued in accordance with the provisions of Tamil Nadu City Tenants Protection Act. She also filed additional written statement reiterating the same stand that she is a tenant in respect of the site under the plaintiff Kannappan. Bhakyam also filed application under section 9 of the Tamil Nadu City Tenants Protection Act with the prayer to purchase the suit property. In the petition, she has stated that she is a tenant under one Venkiah alias Venkatesalu, the first defendant in the suit in respect of vacant site and she has put up superstructure and hence, she is entitled to the benefits of the Act and further stated that there seems to be a dispute with regard to the title of the plaintiff for the schedule mentioned property and only a true owner can pass on valid title to the second defendant and even though the plaintiff had been collecting the rents for the vacant site, the plaintiff has to prove his title to the suit property and she is willing to purchase the land for a price fixed by the court.
4. In the meanwhile, the plaintiff died and the legal representatives were impleaded and they filed counter stating that the revision petitioner herein who was also the petitioner in section 9 application was only a sub-tenant and she was not a tenant under the landlord Kannappan and she is not entitled to the benefits of the City Tenants Protection Act.
5. The Trial Court accepted the case of Bhakyam and held that she is entitled to the benefits of City Tenants Protection Act and though she was inducted into possession by the main tenant, the landlord viz., Kannappan was collecting rent from her and that is evidenced by Exs.P9, P10 to P17 series and therefore, the Bhakyam is a tenant as per the provisions of section 2(4) of the Tamil Nadu City Tenants Protection Act and she is entitled to the benefits under the Act and directed the court to fix the minimum extent of land and assess the value.
6. This was challenged by the legal representatives of the owner in C.M.A.No.9 of 2003 and the learned first appellate Judge reversed the finding of the Trial Court and held that Bhakyam failed to prove that she was a tenant under the landlord and Ex.P9 was not accepted by the landlord and the money order receipts to show payment of rent was received under protest and that will not confer any title or status of tenant on her and as she was not a tenant under the landlord, she is not entitled to the benefits of the Act. The lower appellate court further held that as Bhakyam disputed the title of the landlord, she is not entitled to the relief prayed for. Hence, this revision is filed by the legal representative of Bhakyam.
7. It is submitted by the learned counsel for the revision petitioner that, admittedly, the revision petitioner's predecessor-in-title viz., Bhakyam and her husband purchased the superstructure from the original tenant Venkiah and they are in possession and enjoyment of the property and Bhakyam was paying rent to the landlord viz., Kannappan as evidenced by Ex.P9 and rents were also sent by money orders as per Exs.P10 to P17 and all those were accepted by the landlord and therefore, Bhakyam became a tenant under Kannappan and she cannot be described as a sub-tenant and as per the definition of tenant under the Act, "tenant" means a person liable to pay rent in respect of such land, under a tenancy agreement express or implied and in this case, the receipt of rent from the tenant Bhakyam would give rise to implied tenancy agreement between the parties and therefore, Bhakyam was only a tenant of the landlord and she has not questioned the title of the landlord and she only raised a doubt and that will not amount to denial of title of the landlord and the denial must be clear and unequivocal and in this case, there is no denial of title of the landlord by the tenant and hence, it cannot be stated that the tenant has denied title of the landlord and therefore, she is not entitled to the benefits of the Act and in support of his contention, he relied upon various judgments.
8. On the other hand, learned counsel for the respondents submitted that the money order receipts, Exs.P10 to P17 will not prove that the landlord has accepted Bhakyam as his tenant and it has been made clear that those rents were received under protest and the signature found in Ex.P9 was not accepted and it has been made clear by the witnesses that the signature is doubtful and therefore, the lower appellate court rightly held that Bhakyam was not a tenant under the landlord and she was only a sub-tenant and therefore, she was not entitled to the benefit of the Act. He supported the finding of the lower appellate court and submitted that Bhakyam had specifically disputed the title in her petition under section 9 and hence, she is not entitled to the benefits of the Act.
9. Heard both the counsel. In this revision, we will have to see whether Bhakyam was the tenant under the landlord Kannappan or not.
10. In the plaint filed by Kannappan in O.S.No.236 of 1988, he did not recognise Bhakyam as his tenant and he recognised only Venkiah alias Venkatesalu as the tenant and also stated that the tenant sublet the premises to Krishnan Nair and Bhakyam claims to be the wife of Krishnan Nair. In the written statement, Bhakyam claims tenancy under the plaintiff Kannappan and she did not state that her husband purchased the property from Venkiah, who was tenant under the plaintiff and thereafter, she attorned the tenancy in favour of the plaintiff and the plaintiff also recognised her as tenant. In fact, in the written statement, she claims tenancy directly from the plaintiff. But, in the petition filed under section 9 of the Tamil Nadu City Tenants Protection Act in I.A.No.1802 of 1998, for the first time, she admitted that she was a tenant under Venkiah in respect of vacant site and she has put up construction and is in possession of the property. She has not stated that her husband purchased the superstructure from the original tenant or her husband was inducted into possession by the original tenant Venkiah and her specific case was that she had put up superstructure spending considerable amount. Bhakyam was alive when evidence was taken and she did not enter into the box to give evidence and her son, the revision petitioner was examined as PW1 and he had stated in evidence that his father purchased the superstructure from the tenant Venkiah under Ex.P1 and the landlord Kannappan has acknowledged receipt of rent in respect of land evidenced by Ex.P9 and also received money orders as evidenced by Exs.P10 to P17. Therefore, the case putforth in the application filed under section 9 and in evidence was that Bhakyam and her husband purchased superstructure from Venkiah and thereafter, they were paying the rent to the landlord Kannappan. Whether such act of payment of rent will amount to attornment or recognition by the landlord is the question to be considered.
11. In the judgment reported in J.LEASE & CO. v. M.S.A.MOHAMED FAROOQ (2000 (III) CTC 423), this court has held that acceptance of the rent must be in recognition of the tenancy right claimed by the tenant and not otherwise. In the judgment reported in S.R.RADHAKRISHNAN AND OTHERS v. NEELAMEGAM (2003-4-LW 426), the Honourable Supreme Court laid down the eligibility criteria for claiming the relief under section 9 of the Tamil Nadu City Tenants Protection Act as follows:- "From the above provision it will be seen that the following conditions are to be satisfied before a tenant is entitled to relief:
i) He should be a tenant in possession of the land;
ii) He should have erected a superstructure on the land in respect of which he would be entitled to claim compensation under Section 3;
iii) A suit or proceeding for eviction should have been taken by the landlord against him;
iv) He should have applied to the court for direction in that regard within one month from the date of service of summons in such suit."
12. Therefore, to claim the benefit under section 9 of the Act, the person must be a tenant in possession of the land. The tenant has been defined under section 2(4) of the Act as follows:-
"'Tenant' in relation to any land-
(i) means a person liable to pay rent in respect of such land, under a tenancy agreement express or implied, ..."
13. Therefore, a reading of section 2(4) of the Act and the judgments of this court reported in 2000 (III) CTC 423 and 2003-4-LW 426 cited supra, a tenant must be a person liable to pay rent in respect of such land, under a tenancy agreement express or implied. Can a tenancy be implied in this case has to be found out from the averments.
14. As stated supra, in the earlier reply notice, Bhakyam has stated that she is a tenant in respect of vacant land and with the consent and knowledge of the landlord, she occupied the premises and has been paying rent regularly in respect of vacant site. The same stand was taken in the written statement filed in O.S.No.236 of 1988. Only in the application filed under section 9 of the City Tenants Protection Act, she has stated that she was a tenant under Venkiah alias Venkatesalu in respect of vacant site and has put up superstructure spending considerable amount and in the application filed under section 9, she has not whispered anything about the attornment of tenancy in favour of the landlord or recognition of her possession as tenant by the landlord. In para 3 of the petition, she has admitted that she was a tenant under Venkiah who was admittedly, the main tenant. In para 5, she has raised doubt about the title of the landlord and further stated that only the true owner can pass on a valid title to the petitioner viz., the revision petitioner herein and further stated that the plaintiff had been collecting rent for the vacant site and directed the landlord to prove his title to the suit property. Therefore, the allegations made in para 5 of the petition makes it very clear that she has not attorned to the landlord as tenant nor the landlord recognised her as a tenant. Therefore, even assuming that she has been paying rent and that was accepted by the landlord, it will not confer the status of tenant on her inasmuch as, a tenant under section 2(4) of the Act is a person who is recognised as a tenant by the landlord and who is in possession of the property pursuant to the tenancy agreement either express or implied. In this case, it has been proved that Bhakyam was not paying rent under an implied tenancy.
15. It is further stated by the witnesses examined on the side of the landlord that the rents were received under protest and the signature of the landlord in Ex.P9 was also not admitted. Therefore, having regard to the fact that Bhakyam was not recognised as a tenant by the landlord, she cannot come under the definition of the tenant under the Act and hence, she is not entitled to claim the benefits under the provisions of section 9 of the Tamil Nadu City Tenants Protection Act.
16. Though the lower appellate court has held that Bhakyam has questioned the title of the landlord, on the basis of the allegations made in para 5 of the petition, I do not agree with the finding of the lower appellate court in that regard. As held by this court in various judgments, the denial of title must be unequivocal and clear and in this case, it cannot be stated that Bhakyam denied the title of the landlord in unequivocal terms. In para 5 of the petition she had only raised some doubt about the title of the landlord and that will not amount to denial of title. Hence, the finding of the lower appellate court that Bhakyam challenged the title of the landlord and therefore, she is not entitled to claim protection under the Act is not correct and it is set aside.
17. As I have already held that Bhakyam was not a tenant and her tenancy was not recognised by the landlord, the revision petitioner is not entitled to maintain the application under section 9 and therefore, I do not find any merit in the revision petition. In the result, the revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.