CRP/1322/1997 of P.SIVAKUMAR Vs THANGAMMAL AND 3OTHERS on 26 December 2002

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Sivakumar, the landlord filed a petition for eviction on the groundsof wilful default, sub-letting and owner's occupation. The Rent Controllerallowed the petition on the grounds of wilful default and owner's occupation.Aggrieved by the same, one of the sub-lessees filed an appeal before theAppellate Authority challenging the eviction. The Appellate Authorityconcluded that sub-lease was not proved and the appellant also has not provedthat he is a tenant and therefore, dismissed the eviction petition by allowingthe appeal holding that the appellant being in possession of the petitionpremises can be construed to be a trespasser and as such, the landlord canseek the remedy for recovery of possession through separate proceedings.Challenging the same, the landlord has filed this civil revision petition.

2. The case of the petitioner/landlord is this:

"The petition premises was purchased by one N.Muthusamy Gounder on 29.12.1972. Sivakumar, the present petitioner is the grandson of the saidMutusamy Gounder. The said premises was leased out to K.S. KolandasamyGounder on 29.12.1972 itself to run a jewellery shop on a monthly rent ofRs.200/-. From that date onwards, Kolandasamy Gounder was in possession of the building as a tenant. The landlord Muthusamy Gounder died in November1982 leaving a Will bequeathing the petition premises and other properties tothe petitioner. Thus, the petitioner became the landlord. In November 1982,the tenant Kolandasamy Gounder also died. After his death, his wifeThangammal, the first respondent as a legal representative has to pay the rentto the petitioner, but she did not pay the rent from November 1982 andsub-leased the building to Subramanian and Nagarajan, the respondents 2 and 3without permission of the landlord. On 28.11.1983, the petitioner/ landlordsent notice to respondents 1 to 3 demanding the delivery of possession of thepetition premises terminating the tenancy by 31.12.1983 on the ground that therent from November 1982 has not been paid. The respondents sent a replydisputing the tenancy of K.S.Kolandasamy Gounder and stating thatV.P.Muthusamy, father of respondents 2 and 3 is the tenant of the premisesunder his grandfather and alleging that the said V.P.Muthusamy paid the renttill the end of October 1982 to the petitioner's father. V.P.Muthusamy alsosent another notice on 14.11.1983 to the petitioner claiming tenancy right andoffering to pay the rent from November 1983 and sent money order of Rs.200/-.The same was refused to be received. Then, V.P.Muthusamy filed a separatepetition in R.C.O.P.No.1 of 1984 seeking permission for depositing the rentclaiming the tenancy right in the petition premises. Thus, the firstrespondent not only sub-let the premises to the respondents 2 to 4, but alsocolluded with the other respondents in setting up tenancy falsely in favour ofMuthusamy, the fourth respondent apprehending eviction. Hence, the petitionfor eviction on the ground that the first respondent failed to pay rent fromNovember 1982, despite notice, and sub-let to the respondents 2 and 3 withoutpermission and for requirement of own use.

3. During the pendency of the eviction proceedings, the said V.P.

Muthusamy was ordered to be impleaded as fourth respondent. Since fourthrespondent also is a sub-tenant of the first respondent, all the four areliable to be evicted from the premises.

4. The case put forward by the respondents 1 to 3 is as follows:

"The first respondent's husband never took the shop No.9 and executeda rent agreement on 29.12.1972 in favour of the grandfather of the petitioner.The fourth respondent V.P.Mutusamy alone is the tenant. He filed R.C.O.P.No.1of 1984 for depositing the rent. V.P. Muthusamy had been doing the businessin the petition premises on the basis of oral lease agreement with MuthusamyGounder, the grandfather of the petitioner. The respondents 2 and 3 are thesons of V.P.Muthusamy, the fourth respondent. Since the respondents 1 to 3are not the tenants, the petition for eviction as against them would not bemaintainable."

5. The case of the fourth respondent is as under:

"The shops Door Nos.2,9,10 and 11 were purchased by Muthusamy Gounder,grandfather of the petitioner by the sale deeds dated 29.12.1972 and31.3.1973. From 1.2.1973, the fourth respondent is doing business under thetenancy agreement with the grandfather of the petitioner. He had been payingthe monthly rent regularly to him through the petitioner's father PalaniappaGounder upto October 1982. After the death of Muthusamy Gounder, the fourthrespondent had been paying monthly rent to Palaniappa Gounder, the father of the petitioner, upto October 1983. After coming to know that the petitionerclaimed ownership over the petition premises as a legatee under the Willexecuted by his grandfather, he sent notice as well as money order on14.11.1983 to the petitioner. However, the petitioner refused to receive therent. There is no rent agreement between Kolandasamy Gounder and MuthusamyGounder. He was never a tenant from 19.12.1972 till his death in November1982. The fourth respondent is a statutory tenant. He has also filedR.C.O.P.No.1 of 1984 under Section 8 of the Rent Control Act and is depositingrent without fail into Court. As such, the fourth respondent cannot beevicted on the grounds mentioned in the petition."

6. On behalf of the petitioner, the petitioner examining himself asP.W.1 examined two other witnesses as P.Ws.2 and 3 and marked Exs.P1 to P10.On behalf of the respondents, fourth respondent was examined as R.W.1 andExs.R1 to R96 were marked.

7. On considering the materials on record, the trial Court though didnot accept the evidence with reference to the lease agreement betweenKolandasamy Gounder and N.Muthusamy Gounder, grandfather of the petitioner,concluded that fourth respondent is a tenant and since he made a wilfuldefault by not paying the rent from November 1982 to October 1983 and noperiodical payments have been made in R.C.O.P.No.1 of 1984 and there is nobona fide requirement for owner's occupation, it ordered for eviction.Challenging the order of eviction, the fourth respondent filed an appealbefore the Appellate Authority. After hearing the parties, the AppellateAuthority concluded that the the petitioner had not proved that the firstrespondent is a tenant after the death of Kolandasamy Gounder andconsequently, there is a subletting and since the fourth respondent, who is inpossession and who failed to prove that he is a tenant, is a trespasser, thepetitioner has to seek remedy for recovery of possession from the fourth respondent only in a suit and therefore, the eviction petition would not bemaintainable. This order is the subject matter of challenge in this civilrevision petition filed before this Court.

8. I have heard the counsel for the parties at length justifying theirrespective pleas.

9. I have carefully considered the submissions made by the counselfor the parties and also gone through the orders of both the authorities andthe typed set containing deposition and some of the relevant documents.

10. On a careful perusal of the entire records, I am of the view thatthe petitioner would be entitled to eviction as there are acceptable materialsto prove that the petition premises was leased out to Kolandasamy Gounder, thehusband of the first respondent by Muthusamy Gounder, the grandfather of thepetitioner and after the death of Muthusamy Gounder, by virtue of the Will,the petitioner has become the owner of the petition premises and despite thedemand made by the petitioner for the rent from the first respondent after thedeath of her husband, the rent was not paid and instead, the premises wassub-let to the respondents 2 to 4. The detailed reasonings for my conclusion

11. According to the petitioner, the petition premises was purchasedby Muthusamy Gounder, his grandfather on 29.12.1972 and leased out the saidpremises to K.S.Kolandasamy Gounder on the same day under Ex.P1. In November1982, the said Muthusamy Gounder died. Before his death, he executed a Willbequeathing the petition premises and also other properties in favour of hisgrandson, the petitioner.

12. The fact that the petitioner became the owner of the property has been clearly proved by the petitioner by two sets of evidence. Though it wasopposed by the respondents that the Will was not validly executed, the samehas been proved by marking the original Will and also by examining the scribeof the Will. The second set of evidence is that the fourth respondent himselfwould admit the ownership of the petitioner and that was the reason why heissued the notice to the petitioner on 14.11.1983 claiming tenancy right andoffering to pay the rent from November 1983 and he also sent money order tothe petitioner. Therefore, the petitioner being the owner of the property isentitled to file a petition for eviction against the tenant.

13. It is the consistent case of the petitioner that Kolandasamy Gounder was the tenant under his grandfather and after the death ofKolandasamy Gounder, the petition premises was in possession of the firstrespondent, the wife of Kolandasamy Gounder and the petitioner after the deathof his grandfather, who became the owner of the premises by virtue of theWill, demanded rent from the first respondent, the wife of the saidKulandaisamy Gounder. When the rent amount was not paid by the firstrespondent, he issued a notice dated 28.11.1983 pointing out the wilfuldefault in payment of the rent. In the meantime, he came to know that shesub-let the premises to the respondents 2 and 3 and therefore, in the samenotice, he informed the respondents 1 to 3 about the termination of thetenancy by 31.12.1983 and wanted them to hand over the possession on thegrounds of wilful default and sub-letting the premises without permission. Healso mentioned in the notice that the petition premises is required for him toconduct his own business. This was replied by the respondents 1 to 3 statingthat the first respondent or her husband was never the tenant and V.P.Muthusamy, the fourth respondent was the tenant and he was paying the rentregularly.

14. In the light of the divergent contentions, the evidence of P.Ws.1

14. In the light of the divergent contentions, the evidence of P.Ws.1

and 2 has been let in to show that the petition premises purchased by thegrandfather of the petitioner on 29.12.1972 was leased out to KolandasamyGounder on a monthly rental bas The Rent Controller though concluded that thepetitioner is entitled for eviction on the grounds of wilful default andowner's occupation as against the fourth respondent, held that the leaseagreement executed between Muthusamy Gounder and Kolandasamy Gounder was not agenuine document and as such, the lease has not been proved. However, theAppellate Authority even without going into the reasons given by the RentController, concluded that the said document is a genuine document by holdingthat the document executed between Muthusamy Gounder and Kulandasamy Gounderwould apply to Kolandasamy Gounder only and not to his legal representatives.

15. The Rent Controller would merely reject Ex.P1, the lease deed on the simple reason that the signatures of Kolandasamy Gounder found in threepages are not similar. But, on going through Ex.P1, the lease deed, I do notfind any difference between the signatures in three pages in Ex.P1.

16. Even though the Court has power to compare the signatures by invoking Section 73 of the Evidence Act, there must be some admitted signatureof the parties on the basis of which a comparison will have to be made. It isheld in FAKHRUDDIN v. THE STATE OF MADHYA PRADESH (A.I.R.1967 S.C.1326) is asfollows:

"Although there is no legal bar to the Judge using his own eyes tocompare the disputed writing with the admitting writing, even without the aidof the evidence of any handwriting expert, the Judge should, as a matter ofprudence and caution, hesitate to base his finding with regard to the identityof a handwriting which forms the sheet anchor of the prosecution case againsta person accused of an offence, solely on comparison made by himself."

17. The above principles have been reiterated in SOMASUNDARAM v.

PALANI (1999(III) CTC 156 = 2000(1)L.W.511) and MARAPPA GOUNDER (DIED) ANDOTHERS v. KANDASAMY (2002(4) L.W.252).

18. Therefore, the Court can compare the signature of the parties only with the admitted signature in the documents. But in this case,according to the respondents, the signatures found in 3 pages of Ex. P1 arenot admitted signatures. Therefore, on mere comparison among the signaturesof the husband of the first respondent found in Ex.P1, the said documentcannot be rejected. On the other hand, as I indicated above, there is nodifference in the signatures in Ex.P1.

19. Moreover, the petitioner's side need not fabricate the document by putting the signature of the party in a different way in the same document.However, this finding, in a way, has been set aside by the Appellate Authorityby holding that the said document executed between the grandfather of thepetitioner and Kolandasamy Gounder would not be of use to file a petition foreviction against the first respondent, the wife, who is merely a legal heir.

20. It is not the case of the petitioner that he filed eviction petition against the first respondent treating her only as a legal heir of thetenant. On the other hand, it has been specifically stated in the noticedated 28.11.1983 sent to the first respondent that after the death of herhusband, recognising her as a tenant, he demanded the rent, but she did notpay and instead, she sub-let the premises to the respondents 2 and 3. Thepleading in the petition as well as the evidence given by P.Ws.1 and 2 wouldclearly show that the petitioner demanded rent from the first respondent afterthe death of her husband. Therefore, it cannot be said that the evictionpetition is not maintainable against the first respondent.

21. It is the case of the petitioner that the premises was sub-let to the respondents 2 and 3 by the first respondent. It is the case of the

respondents 1 to 4 that the husband of the first respondent was never thetenant, that she did not sub-let and that the fourth respondent was the directtenant under the petitioner's grandfather and had been paying the rentperiodically.

22. Though separate counters have been filed by the respondents 1 to3, no evidence has been adduced on their behalf. The first respondent did notchoose to come to box. It is the case of the fourth respondent that he wasthe tenant under Muthusamy Gounder and had been continuously paying the rent to him. Admittedly, no documents have been produced or any other independentwitness was examined to show that he was the tenant under Muthusamy Gounderand made periodical payments of rent to him.

23. It is the further contention of the fourth respondent that afterthe death of Muthusamy Gounder, he had been paying the rent amount to thepetitioner's father Palaniappa Gounder. To prove this, neither PalaniappaGounder was examined nor any document was filed. But, the documents filed bythe fourth respondent would clearly show that he has been in possession of thepremises and he has correspondence with the officials concerned with referenceto his running the shop at the petition premises.

24. It is also noticed that he has installed a telephone in his namein the petition premises. Even though there are sufficient materials to showthat the fourth respondent is in possession of the premises, the AppellateAuthority came to the conclusion that the fourth respondent cannot beconstrued to be a tenant under the petitioner as the lease agreement executedbetween Muthusamy Gounder and the fourth respondent was not proved.Ultimately, it was held that the fourth respondent is only a trespasser andthat therefore, the petitioner has to seek remedy in some other forum to getback the possession of the premises.

25. This finding is totally wrong, in view of the fact that thepetitioner has proved by both documentary evidence and oral evidence thatthere is a lease agreement between his grandfather and Kolandasamy Gounder andafter the death of Muthusamy Gounder, the petitioner became the owner byvirtue of the Will and recognising the wife of Kolandasamy Gounder as atenant, he demanded the rent from the first respondent, who did not pay therent, but showed the finger at the fourth respondent as a tenant.

26. Once the case of the petitioner, as mentioned above, is accepted, it has to be automatically held that the fourth respondent is a stranger, whois in occupation of the premises belonging to the petitioner. As a matter offact, the fourth respondent sent a notice on 14.1 1.1983 to the petitionerclaiming tenancy right and offering to pay the rent from November 1983. Hehas also sent money order which was refused to be received. Thereafter, hefiled R.C.O.P.No.1 of 1984 for permission to deposit the rent claiming tenancyright recognising the petitioner as a landlord. The said petition wasdismissed by the Rent Controller. It is noticed that he filed an appealbefore the Appellate Authority against that order. The same also wasdismissed. Against both the orders, the fourth respondent V.P. Muthusamy filed C.R.P.No.659 of 1997 before this Court and the same was dismissedholding that the fourth respondent was not the tenant.

27. In this context, it would be worthwhile to refer to the relevantportion of the observations made by this Court in the said civil revisionpetition:

"It is seen that respondents also filed an application for evictionand that application was also dismissed. It has been found by authoritiesbelow that petitioner has failed to prove his status as tenant. Admittedlythere is no written arrangement between parties. Except for alleged paymentby money order which was refused to be accepted, there is no other evidence toshow that the amount was paid as rent. Petitioners claim to be tenant underrespondent's father who was alive on the date when evidence was taken by RentController. He would have been the best person to speak about the rentalarrangement if any. For reasons best known to petitioner, he was notexamined. Merely because petitioners claim to be in possession, an inferencecannot be drawn that they are tenants and respondent herein is landlord.Parties are close relations. Both authorities have found that lateKulandaisamy Gounder is none other than the brother-in-law of petitioner andonly because of that relationship, petitioner came to occupy the scheduledpremises. Mere occupation of premises will not create landlord-tenantrelationship since it is based on contract. That contract is not proved inthis case."

28. The above finding by this Court in the civil revision petition,in my view, is correct in view of the materials available on record in thiscase. Once the petitioner has proved that Kolandasamy Gounder was the tenantand after his death, the rent was demanded from his wife and then, withoutpaying the rent, she sub-let the premises to third parties, it is for theperson who is in possession of the petition premises to explain as to how hecame into possession.

29. As indicated above, the fourth respondent who is in possessionhas not proved his tenancy right in respect of the petition premises. Whensuch is the case, the fourth respondent becomes a stranger and he has to provehow he came into possession of the petition premises. Admittedly, the fourthrespondent is the fat her of respondents 2 and 3 and brother-in-law ofKolandasamy Gounder. As indicated by this Court in C.R.P.No.659 of 1997,after the death of Kolandasamy Gounder, the respondents 2 to 4 came intopossession of the petition premises by way of sub-lease from his wife, thefirst respondent herein.

30. When a similar question was raised before this Court in MALLIKAv. A.P.KATHIJA BEEVI AND 4 OTHERS (1998(1) L.W.44), this Court ultimatelyheld that the eviction petition is maintainable and the petitioner is entitledfor eviction on the ground of sub-letting. The following is the observation:"When the landlord has proved that a stranger is in possession and isdoing business in the premises, it is for the tenant to substantiate thecircumstances under which the stranger came into occupation. Mere denial maynot be sufficient. The arrangement between the tenant and the second counter-petitioner is a secret arrangement and the details of the same can bespoken only by them. Burden on the landlord is discharged when he proves thata stranger is in exclusive possession at least in respect of a portion of thepremises. The inference drawn by the Authorities below that the secondcounter-petitioner has exclusive possession, according to me, is the onlyconclusion that can be arrived at in the circumstances of the case."This observation would squarely apply to the present facts of the case.

31. It was contended that the sale deed dated 29.12.1972 is only in respect of half portion and the other portion was sold by the fourthrespondent in favour of Muthusamy Gounder, grandfather of the petitioner on31.1.1973 and as such, the lease agreement would not cover the entireproperty. But, the reading of Ex.P1 would clearly show that it would relateto the petition premises.

32. Thus, it is clear that the finding rendered by the Appellate

Authority would suffer from the infirmity committed due to misunderstandingthe law and the evidence available on record. It is true that the scope ofthe revision under Section 25 of the Rent Control Act would not normallypermit this Court to reappreciate the evidence. But, it is settled law thatthe revisional jurisdiction of the High Court under the Rent Control Act iswider than Section 115 of the Code of Civil Procedure. This Court findsillegality or impropriety in the order passed by the Appellate Authority.This Court would certainly correct the same by reversing such order.

33. In this context, it would be worthwhile to refer to the observation made by the the Supreme Court in M/S.SHAW WALLACE AND CO. LTD.v. GOVINDAS PURUSHOTHAMDAS AND ANOTHER (2001(3)L.W.224) which is as follows:"On a plain reading of Section 25 of the Act, it is clear that therevisional jurisdiction vested in the High Court under that Section is widerthan Section 115 of the Code of Civil Procedure. The High Court is entitledto satisfy itself as to the regularity of the proceeding of the correctness,legality or propriety of any decision or order passed therein and if, onexamination, it appears to the High Court that any such decision or ordershould be modified, annulled, reversed or remitted for reconsideration, it maypass such orders accordingly."

34. The said principles have been laid down in the decisions renderedby this Court in T.V.JAGATRAKSHAGAN AND OTHERS v. N.FUTAREE BAI AND OTHERS(2000(3) L.W.195) and ISPAHANI, S.M. v. HARRINGTON HOUSE SCHOOL (2000(I) CTC634).

35. In view of the above fact and legal situation, I am of the considered opinion that the petitioner is entitled to maintain a petition foreviction and ultimately, the fourth respondent, who is in possession of theproperty and the respondents 2 and 3, the sons of the fourth respondent, areliable to be evicted under the grounds of wilful default and sub-letting andaccordingly ordered. The ground of owner's occupation need not be gone into,as the eviction has been ordered on the basis of other grounds. Time forvacating the petition premises two months.

35. Therefore, the civil revision petition is allowed in the above terms. No costs.

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1) The Subordinate Judge (Rent Control Appellate Authority), Erode.2) The Principal District Munsif (Rent Controller), Erode.