IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 06.01.2011 Coram: The Honourable Mr. Justice R.S.RAMANATHAN S.A. No. 872 of 1998 and Cross Objection No.20 of 1999 1. Lakshmi Ammal 2. Prabakaran 3. G. Velu 4. G. Balan 5. G. Vijaya ... Appellants/ Defendants and Respondents in Cross Objection No.20/1999 ..vs.. 1. G. Lingan 2. Lingammal ... Respondents/ Plaintiffs and Cross Objectors in Cross Objection No.20/1999 Prayer in S.A.No.872 of 1998: Second Appeal filed under Section 100 of Civil Procedure Code against the Judgement and Decree dated 18.9.1997 made in A.S.No.8 of 1997 on the file of the Court of District Judge, The Nilgiris at Uthagamandalam, in so far as the same are against the appellants partly allowing the Judgement and Decree dated 24.12.1996 made in O.S.No.609 of 1995 on the file of the Court of the Subordinate Judge, Uthagamandalam. Prayer in Cross Objection No.20 of 1999: Cross Objection filed under Order 41 Rule 21 of Civil Procedure Code against the Judgement and Decree of the learned District Judge https://hcservices.ecourts.gov.in/hcservices/ of Nilgiris at Udhagamandalam, dated 18.9.1997 and made in A.S.No.8 of 1997 in so far as it is against the Cross Objectors. For Appellants in S.A.No.872 of 1998 and Respondents in Cross Objection No.20 of 1999 ... Mr. B. Soundarapandian For Respondents in S.A.No.872 of 1998 and Cross Objectos in Cross Objection No.20 of 1999 ... Mr. B. Ramamoorthy C O M M O N J U D G E M E N T The unsuccessful defendants in O.S.No.609 of 1995 on the file of the Subordinate Court, Udhagamandalam are the appellants. 2. The respondents/plaintiffs filed the suit for declaration and recovery of possession. The case of the respondents/ plaintiffs was that the property was purchased by the respondents/ plaintiffs from one Kappini under two registered sale deeds and prior to the sale the property was leased out by the respondents vendor Kappini to one Gopal and the said Gopal was paying the rent till 31.5.1990 and thereafter he committed default. Therefore, a notice was sent on 24.1.1991 to the tenant Gopal and he sent a reply notice containing false allegations and also claimed title by adverse possession and there was a compromise between the vendor of the plaintiffs/ respondents and Gopal and Gopal agreed to vacate the premises after three years and therefore the lease period was extended up to 31.3.1993 and before that Gopal died and the appellants who are his legal heirs refused to vacate the premises and therefore a notice was sent to the appellants and the title of the respondents was questioned by the appellants. The suit was filed for declaration and recovery of possession and for mesne profits. 3. The appellants/ defendants contested the suit stating that the respondents/ plaintiffs cannot claim any right or title to the suit property and even the vendor of the respondents/ plaintiffs last their right over the suit property and therefore he could not have conveyed any valid title to the respondents/ plaintiffs. Gopal was the owner of the building and he was not in possession as a tenant under Kappini the vendor of the plaintiffs and the suit property was originally owned by one A.J.Gonsalves and Gopal's uncle Palani was having a Tea shop in the suit property and was also cultivating the adjoining land and after the death of Palani, Gopal was conducting a https://hcservices.ecourts.gov.in/hcservices/ Tea shop and carrying on the agricultural operation and there was an agreement between Gopal and A.J.Gonsalves regarding the sale of the suit property but that could not be completed and Gopal was in possession and enjoyment of the suit property as a owner and thereafter the appellants continued to be in possession and enjoyment of the same as owners and they have also perfected title over the suit property by adverse possession and therefore, the plaintiffs cannot maintain a suit for declaration and recovery of possession. 4. The trial Court on the basis of oral and documentary evidence disbelieved the case of adverse possession pleaded by the appellants and upheld the title of the plaintiffs/ respondents over the suit property and also directed the appellants to deliver vacant possession and further directed the appellants to pay mesne profits of Rs.1500/- per month to the respondents/ plaintiffs till the appellants hand over vacant possession to the respondents/ plaintiffs. Aggrieved by the same, the appellants filed an appeal in A.S.No.8 of 1997 on the file of the District Court, Udhagamandalam and the learned District Judge, Udhagamandalam partly allowed the appeal and held that the respondents/ plaintiffs are the owners of the property and therefore they are entitled to declaration and the appellants have not proved their case of adverse possession and they cannot also plead adverse possession as they were in possession of the property as a tenant and the relationship of landlord and tenant exists between the plaintiffs and the defendants and therefore the respondents/ plaintiffs are not entitled to recovery of possession and dismissed the suit in respect of recovery of possession and decreed the suit in respect of title. Aggrieved by the same the Second Appeal is filed by the appellants and against the denial of relief of recovery of possession, the respondents/ plaintiffs filed Cross Objection No.20 of 1999. 5. At the time of admission of the Second Appeal the following substantial question of law was framed: Whether the lower appellate Court is legally correct in declaring the title to the suit property after finding that the Civil Court can go into the question only after finding regarding denial of title is given by the Rent Control Court ? 6. It is contended by the learned counsel for the appellants that the lower appellate Court having found that the appellants are the tenants of the suit properties ought not to have decreed the suit in respect of title and ought to have dismissed the suit and allowed the appeal. He further submitted that the denial of title is not mala fide and the suit filed by the respondents/ plaintiffs for declaration and recovery of possession cannot be entertained when https://hcservices.ecourts.gov.in/hcservices/ admittedly the appellants are the tenants and only after filing an application before the rent control proceedings and after a finding is rendered by the Rent Controller about the denial of title by the appellants a suit can be filed for recovery of possession and without filing the application before the Rent Controller, a suit for declaration and recovery of possession is not maintainable. 7. On the other hand, Mr.B.Ramamoorthy, the learned counsel for the respondents submitted that both the Courts have concurrently held that the respondents/ plaintiffs got title to the suit property and even in the reply notice the appellants have denied the title of the respondents and therefore the suit was filed for declaration of title and for recovery of possession and the learned trial Court has rightly decreed the suit holding that the appellants are not the tenants and they are liable to pay damages and the first appellate Court after holding that the respondents/plaintiffs are the owners of the property erred in dismissing the suit in respect of recovery of possession and having regard to the conduct of the appellants in denying the title of the respondents they are not entitled to remain in possession of the property as a tenant, even assuming that they are the tenants and hence the lower appellate Court ought to have dismissed the appeal in entirety. 8. Heard both sides. 9. It is seen from the plaint that the respondents/ plaintiffs admitted that the appellants are in possession of the property as a tenant. Originally the property was owned by one Kappini and he let out the property to one Gopal and from Kappini the respondents/ plaintiffs purchased the property and the appellants are the Legal Representatives of the said Gopal. Therefore, the respondents/ plaintiffs filed the suit stating that the appellants are the tenants and as they have denied the title of the respondents/ plaintiffs they are liable to be vacated and also prayed the relief of declaration. Though the appellants denied the title of the respondents/ plaintiffs and claimed title on themselves and also pleaded adverse possession, the appellants did not prove the plea of adverse possession and both the Courts below have concurrently held that the defendants/appellants did not prove their case of adverse possession and they were let into possession as a tenant. Therefore, both the Courts have rightly upheld the title of the respondents/plaintiffs over the suit property. 10. Further under Section 10(1) Proviso of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, when the tenant denies the title of the landlord or claims right of permanent tenancy, the https://hcservices.ecourts.gov.in/hcservices/ 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. Similarly as per Section 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 when the denial of title by the tenant is not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application. Therefore, from the above provisions under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 when a person is in possession of the property as a tenant according to the landlord and when such a person denies the title of the landlord, the landlord can file an application for eviction on the ground of denial of title and if the Rent Controller decides that the denial is bona fide, the landlord has to file a suit for eviction and if the denial is mala fide the Rent Controller can direct the tenant to hand over possession. Therefore, the right of the landlord to file a suit for eviction arises only after a finding is rendered by the Rent Controller about the denial of title by the tenant whether it is bona fide or mala fide. Admittedly, no application was filed by the landlord for eviction of the tenant on the ground of denial of title, especially when the tenant denied the title of the landlord in the reply notice. Therefore, in the absence of any finding given in the Rent Controller about the bona fide or mala fide nature of denial of title of the landlord by the tenant, the landlord cannot file a suit for recovery of possession. The reason is under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, when a person is let into possession as a tenant he cannot be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that Section or Sections 14 to 16 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (Vide Section 10). Therefore, even though a decree is obtained by the landlord about the title to the suit property when he came to the Court with a plea that the defendant is a tenant he cannot seek for recovery of possession even assuming that the tenant had mala fidely disputed the title of the landlord and in that case he has to file an application before the Rent Controller for eviction. 11. Therefore, the lower appellate Court has rightly held that the landlord namely the respondents/ plaintiffs have to file an application before the Rent Controller for eviction as the relationship of landlord and tenant exists between the parties. But at the same time both the Courts below independently assessed the case of the parties and rightly came to the conclusion that the respondents/ plaintiffs are the owners of the property and the appellants did not prove their case of adverse possession. https://hcservices.ecourts.gov.in/hcservices/ 12. Hence the concurrent finding of the fact regarding title of the suit property in favour of the respondents is correct and cannot be interfered with. Further, the Civil Court is a competent authority to decide about the title of the property and even though the recovery of possession can be sought for only by filing an application under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, the suit for declaration of title is maintainable, when the title of the respondents/plaintiffs is denied and disputed by the appellants. Hence, the substantial question of law is answered against the appellants. 13. As the appellants are the tenants under the respondents, the respondents have to file an application for eviction and therefore the Cross Objection filed by the respondents/plaintiffs is also dismissed. It is further submitted that after the disposal of the first appeal the respondents have filed R.C.O.P.No.26 of 98 on the file of the Rent Controller, Udhagamandalam on the ground of denial of title and that petition was allowed and against the same the appeal was filed in R.C.A.No.25 of 2004 on the file of the Subordinate Court, Udhagamandalam and the same is pending. As the Cross Objection of the respondents is dismissed, the findings of the lower appellate Court that the respondents have to file an application for eviction is confirmed. Therefore, the Rent Controller Appellate Authority, Udhagamandalam is directed to dispose of the appeal in R.C.A.No.25 of 2004 on merits at the earliest. With the above direction, the Second Appeal and Cross Objection are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kr. To 1. The Subordinate Judge, Udhagamandalam. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Judge, Udhagamandalam, The Nilgiris District.. 3.The rent Controller Appellate Authority, Udhagamandalam. Copy to:The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.B.Soundarapandian, Advocate, SR.2002 1 cc To Mr.B.Ramamoorthy, Advocate, SR.995 S.A.No. 872 of 1998 and Cross Objection No. 20 of 1999 pa(co) pmk.31.5.2011 https://hcservices.ecourts.gov.in/hcservices/