Subbaroyan and anr. Vs. Devadas Nadar - Court Judgment

SooperKanoon Citationsooperkanoon.com/823966
SubjectTenancy
CourtChennai High Court
Decided OnSep-20-1990
Reported in(1990)2MLJ548
AppellantSubbaroyan and anr.
RespondentDevadas Nadar
Cases ReferredThangavelu v. Bhahadur Sheriff
Excerpt:
- srinivasan, j.1. the second appeal arises out of a suit filed by the respondent herein for recovery of possession against the appellants. the civil revision petition arises out of an application under the tamil nadu city tenants protection act filed by the appellants herein. the trial court granted a decree for eviction in favour of the respondent and it was affirmed by the appellate court. the petition filed by the appellants under the provisions of the tamil nadu city tenants' protection act was dismissed by the trial court and that was affirmed by the appellate court.2. the short facts relevant are these: the respondent purchased the suit property from one t.srinivasan alias chellappa under a document dated 17.4.1974 for rs.4,000. he issued a notice dated 14.5.1974 terminating the tenancy of the appellants with the expiry of the month ending on 16.6.1974. the tenancy month is admittedly from 17.4.74 to 16.5.1974. consequently, notice was issued terminating the tenancy with 16.6.1974. the notice is marked as exhibit b-2. there was no reply to the said notice by the appellants, though they received the same on 20.5.1974. the respondent filed o.s. no. 3793 of 1974 for permanent and mandatory injunction as against the appellants with reference to a construction put up by the appellants. the contention of the respondent was that it was unauthorisedly put up at the time of the institution of the said suit and it should be pulled down. that suit was contested by the appellants herein. in the written statement filed by them, the following plea was raised in paragraph 6 therein:these defendants submit that there is no juridical relationship of landlord and tenant between the present plaintiff and the defendant.the appellants also contended that they had acquired certain rights as against the previous owner and he did not have any right to alienate the property in favour of the respondent herein ignoring the rights of the appellants. that suit, no doubt, ended in favour of the appellants herein. but that is not a matter of any consequence in the present proceedings.3. the present suit was filed by the respondent for recovery of possession. it is stated clearly in paragraph 7 which relates to cause of action that the respondent become entitled to recover possession on the termination of the tenancy by issue of notice dated 14.5.1974 and the subsequent denial of the respondent's title, in the written statement filed by the appellants in o.s. no. 3793 of 1984. i have already referred to the fact that both the courts below held against the appellants. when the second appeal came up before me in the first occasion on 4.8.1986, i referred the matter for decision by a division bench as there were conflicting pronouncements on the question whether a tenant whose tenancy was forfeited by his denial, of the title of the landlord would be entitled to the benefits of the tamil nadu city tenants' protection act. a division bench considered the matter in detail and answered the question in the negative. the judgment of the division bench is reported in bhargavakula nainargal sangam v. arunachala udayar (1990) 1 l.w. 46. the relevant observation of the division bench reads as follows:.a cumulative effect of the provisions would lead to the inference that protection is available only to the statutory tenants whose possession is protected under the provisions of a statute. we are unable to find any provision in the act to consider the tenant who has denied the title are statutory tenant. we have come to the conclusion from the preamble and the definition of 'tenant' found in the act that the benefit is intended to be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be owners or set up title on others....4. after answering the question referred to them, the division bench directed the present second appeal and the civil revision petition to be posted before a single judge for disposal on merits in the light of the conclusions arrived at by them in the said judgment. consequently, these matters have come again before me.5. learned counsel for the appellants submits that there was no denial of title by the appellants which would prevent them from claiming the benefits of the tamil nadu city tenants' protection act secondly, it is argued that there is no denial of the title of the original lessor and only if there is such a denial, they would be liable for forfeiture of tenancy, with the result that they would continue, to be tenants entitled to the benefits of the tamil nadu city tenants protection act. thirdly, it is contended that a notice should have been issued by the respondent under section 111(g) of the transfer of property act and in the absence of such a notice, the suit is not maintainable. the fourth contention is that the notice issued on 14.5.1974 under exhibit b-2 is not a valid one, as it is not in accordance with the provisions of section 106 of the transfer of property act. the last contention is that there is a waiver on the part of the respondent within the meaning of section 112 of the transfer of property act, as he has been receiving the rents from the appellants herein.6. with regard to the first contrition, learned counsel for the appellants places reliance one passage in mulla's transfer of property act at page 751 in the sixth edition. it reads thus:.the bars statement that there is no relation of landlord and tenant with the lessor may operate as a surrender, but it is not a disclaimer as it does not amount to setting up title either in a third person or in the tenant himself....reliance is also placed upon a judgment of the allahabad high court in ram prasad rai v. ragunath prasad : air1974all72 . i can straightaway state that the judgment of the allahabad high court has no relevance whatever to the present case. the proposition laid down in that case is that in a suit for forfeiture of tenancy on the ground of denial of title of transferee landlord, the liability for ejectment can be escaped by a tenant, only if he has bonafide paid rent to the old landlord or has bona fide doubted the title of the transferee landlord. that proposition has no bearing on the facts of the present case. as regards the passage in mulla's transfer of property act, that also does not apply to the present case. the proposition set out therein is with reference to the position under section 111(g) of the transfer of property act. the question in the present case is, whether the appellants are entitled to the benefits of the tamil nadu city tenants' protection act and resist the suit for eviction filed by the respondent herein after terminating the tenancy under section 111(h) of the transfer of property act. this suit is not based on the mere forfeiture of the tenancy, but it is based upon the termination of the tenancy, which was effected long prior to the filing of the present suit. the only method by which the appellants can escape a decree for eviction is by resorting to the provisions of the tamil nadu city tenants' protection act. if the benefit under the said act is not available to them, then, they cannot resist the suit for possession. for the purpose of tamil nadu city tenants' protection act, the only relevant question is, whether there is a factual denial of tenancy between the plaintiff and the defendant. the definition of 'tenant' as a person liable to pay rent in respect of a land under a tenancy agreement express or implied, would only cover a person who admits the relationship of landlord and tenant between him and the owner of the land. once a person states that there is no relationship of landlord and tenant between him and the present owner of the land, then, he cannot claim at the same time to be a tenant within the meaning of the act. this is what has been laid down by the division bench in the case referred to above. i have also referred to the passage in which the division bench has categorically pointed out that a person who has denied the title as a statutory tenant would not be a tenant within the meaning of the act it is not necessary for the purpose of considering the question whether the benefits of the act are available to him or not, to decide whether the denial is bonafide. i have referred to the passage in the written statement filed by the appellants in the earlier suit o.s. no.3793 of 1984, in which there is a categorical denial by the appellants of the juridical relationship, of landlord and tenants between them and the respondent herein. having made such a denial, it is not open to the appellants to say that they are entitled to claim the benefits of the tamil nadu city tenants' protection act and thereby resist the suit for eviction.7. hence the first contention fails since i have found that there is factually a denial of title of the respondent by the appellants in the written statement filed by them in o.s. no.3793 of 1984.8. as regard the second contention, it has also no substance. the court is concerned only with the relief that has to be granted to the plaintiff, who has been found to be the owner of the property at the time when he seeks to recover possession exercising his right as owner, after having terminated the tenancy of the appellants herein. there is no substance in the plea that the appellants had not denied the title of the original lessor and that they had only denied the title of the present landlord (respondent). learned counsel invites my attention to the judgment of the calcutta high court in abdulla v. mohammed hualim a.i.r. 1926 cal 205 and the madhya pradesh high court in sugga box v. smt. hiralal : air1969mp32 . in the former case, it is held that the denial pf the right of an assignee from the original lessor by the tenant does not work forfeiture of the tenancy. in this case, i have already pointed out that the claim of the respondent is not based only on the forfeiture, but also on the termination of the tenancy of the appellants by the issue of a notice in may, 1974. in the latter case, it is held that a tehant cannot be permitted to deny the title of the original lessor and the derivative title of a reversioner, if he has attorned to him. it is also held that if the tenant had not attorned to the derivative owner and if he has not paid any rent to him, he can certainly deny the derivative title of a reversioner. that case related only to the principle of estoppel and the tenant was only permitted to raise such a plea, but if that plea is not accepted what will be the consequence is not decided in that case. in this case the ownership of the property resting with the respondent is not in dispute. the only question raised by the appellants is that they cannot be dispossessed from the property as they are entitled to the benefits of the tamil nadu city tenants' protection act. hence both the judgments referred to above will have no applicability to the present case.9. the third contention of learned counsel for the appellants that a notice should have been issued under section 111(g) after the filing of the written statement by the appellants in o.s. no.3793 of 1984 is without any substance. i have already referred to the fact that there was a prior notice under section 111(h) of the transfer of property act determining the tenancy and once tenancy is determined under section 111(h), then, there is no question of issuing another notice under section 111(g) of the transfer of property act. learned counsel placed reliance on the judgment of sadasivam, j. in thangavelu v. bhahadur sheriff : (1970)1mlj495 . the learned judge, after referring to the decision of a bench in c.r.p. no. 2541 of 1965, observed as follows:.it has been held in that case that so long as the contractual tenancy is not terminated in the manner provided by section 106 read with section 111(h) of the transfer of property act, the tenant is protected in his possession and the landlord cannot evict him, with the necessary corollary that there is no need for the tenant to seek protective refuge under the rent control act of 1960 and that the landlord cannot, during the subsistence of the tenancy, resort to eviction on grounds provided by that act irrespective of the protection available to the tenant under the subsisting contractual tenancy. it has been further observed in that decision that there is nothing in the said act which expressly or by necessary implication abrogates the general law relating to the necessity to terminate the contractual tenancy before proceedings in ejectment can be initiated, and that it is only after the expiration of the contractual tenancy either by efflux of time or by notice of termination that the field becomes open for the landlord to get over the statutory protection to the tenant by resorting to and establishing the grounds provided by the 1960 act eviction. as a single judge, i am bound by this bench decision. thus, the proposition of law stated by the learned judge is really against the contention of the appellant's herein. without a termination of the tenancy, a proceeding for eviction cannot be instituted on the basis of mere denial without a notice under section 111(g) of the transfer of property act. but in cases where there is a termination of tenancy by a notice under section 111(h) of the transfer of property act, there is no question of issuing a further notice under section 111(g) of the transfer of property act. the proposition advanced by learned counsel for the appellants is not supported by the above judgment.10. the next contention of learned counsel for the appellants that the notice issued on 14.5.1974 by the respondent is not in accordance with section 106 of the transfer of property act has been made out. in fact, excepting a vague plea in the written statement that the notice is not in accordance with the provisions of section 106 of the transfer of property act, no steps were taken by the appellants to pursue that contention in any manner. however, a reading of the notice shows that it is clearly in accordance with the provisions of sections 106 of the transfer of property act. the tenancy month being from 17.4.1974 to 16.5.1974, the notice has been issued properly on 14.5.1974 terminating the tenancy with 16.6.1974. hence, this contention is rejected.11. as regards the last contention, no such plea was raised in the courts below or in the memo of grounds here: no evidence has been placed before this court in support of such a plea and the appellants cannot be permitted to raise it here.12. in the result, the second appeal and the civil revision petition fail and they are dismissed with costs in the second appeal. there will be no order as to costs in the civil revision petition.
Judgment:

Srinivasan, J.

1. The Second Appeal arises out of a suit filed by the respondent herein for recovery of possession against the appellants. The Civil Revision Petition arises out of an application under the Tamil Nadu City Tenants Protection Act filed by the appellants herein. The trial Court granted a decree for eviction in favour of the respondent and it was affirmed by the appellate Court. The petition filed by the appellants under the provisions of the Tamil Nadu City Tenants' Protection Act was dismissed by the trial court and that was affirmed by the appellate Court.

2. The short facts relevant are these: The respondent purchased the suit property from one T.Srinivasan alias Chellappa under a document dated 17.4.1974 for Rs.4,000. He issued a notice dated 14.5.1974 terminating the tenancy of the appellants with the expiry of the month ending on 16.6.1974. The tenancy month is admittedly from 17.4.74 to 16.5.1974. Consequently, notice was issued terminating the tenancy with 16.6.1974. The notice is marked as Exhibit B-2. There was no reply to the said notice by the appellants, though they received the same on 20.5.1974. The respondent filed O.S. No. 3793 of 1974 for permanent and mandatory injunction as against the appellants with reference to a construction put up by the appellants. The contention of the respondent was that it was unauthorisedly put up at the time of the institution of the said suit and it should be pulled down. That suit was contested by the appellants herein. In the written statement filed by them, the following plea was raised in paragraph 6 therein:

These defendants submit that there is no juridical relationship of landlord and tenant between the present plaintiff and the defendant.

The appellants also contended that they had acquired certain rights as against the previous owner and he did not have any right to alienate the property in favour of the respondent herein ignoring the rights of the appellants. That suit, no doubt, ended in favour of the appellants herein. But that is not a matter of any consequence in the present proceedings.

3. The present suit was filed by the respondent for recovery of possession. It is stated clearly in paragraph 7 which relates to cause of action that the respondent become entitled to recover possession on the termination of the tenancy by issue of notice dated 14.5.1974 and the subsequent denial of the respondent's title, in the written statement filed by the appellants in O.S. No. 3793 of 1984. I have already referred to the fact that both the Courts below held against the appellants. When the Second Appeal came up before me in the first occasion on 4.8.1986, I referred the matter for decision by a Division Bench as there were conflicting pronouncements on the question whether a tenant whose tenancy was forfeited by his denial, of the title of the landlord would be entitled to the benefits of the Tamil Nadu City Tenants' Protection Act. A Division Bench considered the matter in detail and answered the question in the negative. The Judgment of the Division Bench is reported in Bhargavakula Nainargal Sangam v. Arunachala Udayar (1990) 1 L.W. 46. The relevant observation of the Division Bench reads as follows:.A cumulative effect of the provisions would lead to the inference that protection is available only to the statutory tenants whose possession is protected under the provisions of a statute. We are unable to find any provision in the Act to consider the tenant who has denied the title are statutory tenant. We have come to the conclusion from the preamble and the definition of 'tenant' found in the Act that the benefit is intended to be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be owners or set up title on others....

4. After answering the question referred to them, the Division Bench directed the present Second Appeal and the Civil Revision Petition to be posted before a single Judge for disposal on merits in the light of the conclusions arrived at by them in the said Judgment. Consequently, these matters have come again before me.

5. Learned Counsel for the appellants submits that there was no denial of title by the appellants which would prevent them from claiming the benefits of the Tamil Nadu City Tenants' Protection Act Secondly, it is argued that there is no denial of the title of the Original lessor and only if there is such a denial, they would be liable for forfeiture of tenancy, with the result that they would continue, to be tenants entitled to the benefits of the Tamil Nadu City Tenants Protection Act. Thirdly, it is contended that a notice should have been issued by the respondent under Section 111(g) of the Transfer of Property Act and in the absence of such a notice, the suit is not maintainable. The fourth contention is that the notice issued on 14.5.1974 under Exhibit B-2 is not a valid one, as it is not in accordance with the provisions of Section 106 of the Transfer of Property Act. The last contention is that there is a waiver on the part of the respondent within the meaning of Section 112 of the Transfer of Property Act, as he has been receiving the rents from the appellants herein.

6. With regard to the first contrition, learned Counsel for the appellants places reliance one passage in Mulla's Transfer of Property Act at Page 751 in the Sixth Edition. It reads thus:.The bars statement that there is no relation of landlord and tenant with the lessor may operate as a surrender, but it is not a disclaimer as it does not amount to setting up title either in a third person or in the tenant himself....

Reliance is also placed upon a Judgment of the Allahabad High Court in Ram Prasad Rai v. Ragunath Prasad : AIR1974All72 . I can straightaway state that the Judgment of the Allahabad High Court has no relevance whatever to the present case. The proposition laid down in that case is that in a suit for forfeiture of tenancy on the ground of denial of title of transferee landlord, the liability for ejectment can be escaped by a tenant, only if he has bonafide paid rent to the old landlord or has bona fide doubted the title of the transferee landlord. That proposition has no bearing on the facts of the present case. As regards the passage in Mulla's Transfer of Property Act, that also does not apply to the present case. The proposition set out therein is with reference to the position under Section 111(g) of the Transfer of Property Act. The question in the present case is, whether the appellants are entitled to the benefits of the Tamil Nadu City Tenants' Protection Act and resist the suit for eviction filed by the respondent herein after terminating the tenancy under Section 111(h) of the Transfer of Property Act. This suit is not based on the mere forfeiture of the tenancy, but it is based upon the termination of the tenancy, which was effected long prior to the filing of the present suit. The only method by which the appellants can escape a decree for eviction is by resorting to the provisions of the Tamil Nadu City Tenants' Protection Act. If the benefit under the said Act is not available to them, then, they cannot resist the suit for possession. For the purpose of Tamil Nadu City Tenants' Protection Act, the only relevant question is, whether there is a factual denial of tenancy between the plaintiff and the defendant. The definition of 'tenant' as a person liable to pay rent in respect of a land under a tenancy agreement express or implied, would only cover a person who admits the relationship of landlord and tenant between him and the owner of the land. Once a person states that there is no relationship of landlord and tenant between him and the present owner of the land, then, he cannot claim at the same time to be a tenant within the meaning of the Act. This is what has been laid down by the Division Bench in the case referred to above. I have also referred to the passage in which the Division Bench has categorically pointed out that a person who has denied the title as a statutory tenant would not be a tenant within the meaning of the Act It is not necessary for the purpose of considering the question whether the benefits of the Act are available to him or not, to decide whether the denial is bonafide. I have referred to the passage in the written statement filed by the appellants in the earlier suit O.S. No.3793 of 1984, in which there is a categorical denial by the appellants of the juridical relationship, of landlord and tenants between them and the respondent herein. Having made such a denial, it is not open to the appellants to say that they are entitled to claim the benefits of the Tamil Nadu City Tenants' Protection Act and thereby resist the suit for eviction.

7. Hence the first contention fails since I have found that there is factually a denial of title of the respondent by the appellants in the written statement filed by them in O.S. No.3793 of 1984.

8. As regard the second contention, it has also no substance. The Court is concerned only with the relief that has to be granted to the plaintiff, who has been found to be the owner of the property at the time when he seeks to recover possession exercising his right as owner, after having terminated the tenancy of the appellants herein. There is no substance in the plea that the appellants had not denied the title of the Original lessor and that they had only denied the title of the present landlord (Respondent). Learned Counsel invites my attention to the Judgment of the Calcutta High Court in Abdulla v. Mohammed Hualim A.I.R. 1926 Cal 205 and the Madhya Pradesh High Court in Sugga Box v. Smt. Hiralal : AIR1969MP32 . In the former case, it is held that the denial pf the right of an assignee from the original lessor by the tenant does not work forfeiture of the tenancy. In this case, I have already pointed out that the claim of the respondent is not based only on the forfeiture, but also on the termination of the tenancy of the appellants by the issue of a notice in May, 1974. In the latter case, it is held that a tehant cannot be permitted to deny the title of the original lessor and the derivative title of a reversioner, if he has attorned to him. It is also held that if the tenant had not attorned to the derivative owner and if he has not paid any rent to him, he can certainly deny the derivative title of a reversioner. That case related only to the Principle of estoppel and the tenant was only permitted to raise such a plea, but if that plea is not accepted what will be the consequence is not decided in that case. In this case the ownership of the property resting with the respondent is not in dispute. The only question raised by the appellants is that they cannot be dispossessed from the property as they are entitled to the benefits of the Tamil Nadu City Tenants' Protection Act. Hence both the Judgments referred to above will have no applicability to the present case.

9. The third contention of learned Counsel for the appellants that a notice should have been issued under Section 111(g) after the filing of the written statement by the appellants in O.S. No.3793 of 1984 is without any substance. I have already referred to the fact that there was a prior notice under Section 111(h) of the Transfer of Property Act determining the tenancy and once tenancy is determined under Section 111(h), then, there is no question of issuing another notice under Section 111(g) of the Transfer of Property Act. Learned Counsel placed reliance on the Judgment of Sadasivam, J. in Thangavelu v. Bhahadur Sheriff : (1970)1MLJ495 . The learned Judge, after referring to the decision of a Bench in C.R.P. No. 2541 of 1965, observed as follows:.It has been held in that case that so long as the contractual tenancy is not terminated in the manner provided by Section 106 read with Section 111(h) of the Transfer of Property Act, the tenant is protected in his possession and the landlord cannot evict him, with the necessary corollary that there is no need for the tenant to seek protective refuge under the Rent Control Act of 1960 and that the landlord cannot, during the subsistence of the tenancy, resort to eviction on grounds provided by that Act irrespective of the protection available to the tenant under the subsisting contractual tenancy. It has been further observed in that decision that there is nothing in the said Act which expressly or by necessary implication abrogates the general law relating to the necessity to terminate the contractual tenancy before proceedings in ejectment can be initiated, and that it is only after the expiration of the contractual tenancy either by efflux of time or by notice of termination that the field becomes open for the landlord to get over the statutory protection to the tenant by resorting to and establishing the grounds provided by the 1960 Act eviction. As a single Judge, I am bound by this Bench decision.

Thus, the proposition of law stated by the learned Judge is really against the contention of the appellant's herein. Without a termination of the tenancy, a proceeding for eviction cannot be instituted on the basis of mere denial without a notice under Section 111(g) of the Transfer of Property Act. But in cases where there is a termination of tenancy by a notice under Section 111(h) of the Transfer of Property Act, there is no question of issuing a further notice under Section 111(g) of the Transfer of Property Act. The proposition advanced by learned Counsel for the appellants is not supported by the above judgment.

10. The next contention of learned Counsel for the appellants that the notice issued on 14.5.1974 by the respondent is not in accordance with Section 106 of the Transfer of Property Act has been made out. In fact, excepting a vague plea in the written statement that the notice is not in accordance with the provisions of Section 106 of the Transfer of Property Act, no steps were taken by the appellants to pursue that contention in any manner. However, a reading of the notice shows that it is clearly in accordance with the provisions of Sections 106 of the Transfer of Property Act. The tenancy month being from 17.4.1974 to 16.5.1974, the notice has been issued properly on 14.5.1974 terminating the tenancy with 16.6.1974. Hence, this contention is rejected.

11. As regards the last contention, no such plea was raised in the Courts below or in the Memo of grounds here: No evidence has been placed before this Court in support of such a plea and the appellants cannot be permitted to raise it here.

12. In the result, the second appeal and the civil revision petition fail and they are dismissed with costs in the second appeal. There will be no order as to costs in the civil revision petition.