Tmt. Kasthuri Radhakrishnan & Ors vs M.Chinniyan & Anr

2) In order to appreciate the issue involved in this appeal, it is necessary to set out in brief the relevant facts in relation to eviction case out of which this appeal arises and also state the facts of three cases filed by the parties in respect of the suit premises because they were referred to in the proceedings out of which this appeal arises.

3) The appellants (plaintiffs) are the wife and sons of one A. Radhakrishnan. The suit premises bearing Door No. S-3, Periyar Nagar Housing Unit, Erode Town, comprised in T.S. No. 909/3, Block No. 17 and 598/2 Part, Ward 1, Block 20, Surampatti Village, Erode Taluk, Erode sub- District, Erode Registration District was allotted to A. Radhakrishan by Tamil Nadu Housing Board. In fact, entire area was acquired by the Housing Board and one house site therein was allotted to A. Radhakrishnan. Subsequently, A. Radhakrishnan made construction on the site allotted to him.

4) On 22.02.1987, A. Radhakrishnan executed a general power of attorney in favour of one V. Dhanapal and nominated him to administer and manage the suit premises on his behalf.

5) One N. Kalidass was in occupation of the suit premises as tenant. On 04.02.1988, he vacated and surrendered the possession of the suit premises to Dhanapal. Thereafter respondent No.1 took the suit premises on lease rent from Dhanapal under a written lease deed dated 12.02.1989 for a period of 11 months on a monthly rent of Rs.850/- and paid Rs.4000/- as advance. Respondent No.1 then obtained possession of the suit premises and started residing therein with his family.

6) The appellants, however, came to know that A. Radhakrishnan without their knowledge entered into a sale agreement dated 30.07.1987 to sell the suit premises to one A.S. Pongianna. The appellants, therefore, instituted a suit being O.S. No. 53 of 1989 (re-numbered as O.S.549/1989) in the Court of District Judge, Erode and sought a declaration that the sale agreement dated 30.07.1987 was neither valid and nor binding on them and also sought a permanent injunction against A. Radhakrishnan restraining him from executing the sale deed in favour of A.S. Pongianna and delivering possession of the suit property to him. In this suit, respondent No. 1 was impleaded as one of defendants.

7) Respondent No.1 filed a written statement in the aforesaid suit reiterating therein that he was inducted in the suit premises as a tenant under a lease deed dated 12.02.1989 for a period of 11 months at monthly rent of Rs.850/- and on the expiry of the contractual period of lease, he continued to remain in the suit premises as a tenant.

8) Respondent No.1 also, in the meantime, filed a suit being O.S. No. 87 of 1989 in the Court of Subordinate Judge, Erode against A. Radhakrishnan and the appellants herein seeking permanent injunction restraining the appellants from dispossessing them from the suit premises. According to respondent No.1, he was a tenant and was put in possession of the suit premises by Dhanapal, the power of attorney holder of A. Radhakrishnan, pursuant to a lease deed dated 12.02.1989 for a period of 11 months at a monthly rent of Rs.850/-. He also alleged that since the appellants were dissatisfied with the rent fixed under the lease deed, therefore, they were attempting to dispossess him from the suit premises. In this suit, on 22.02.1990, A. Radhakrishnan filed a written statement stating inter alia that respondent No.1 was put in possession of the suit premises as his tenant and that he had already cancelled the power of attorney executed by him in favour of Dhanapal by executing a registered cancellation deed dated 13.03.1989.

9) Since A. Radhakrishnan was refusing to accept the rent from February 1989, respondent No.1 filed a petition bearing R.C.O.P. No. 2 of 1991 under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act in the Court of the Rent Controller of Erode. In the meantime on 23.09.1994, A. Radhakrishnan expired intestate leaving behind him the present appellants as his class I heirs and one daughter – Tmt. R. Kanjana. The appellants thus became the owners of the suit premises by inheritance.

10) On 14.10.1998, respondent No.1 through his advocate sent a notice to the appellants herein and Tmt. R. Kanjana, the daughter of late A. Radhakrishnan, claiming that upon payment of Rs. 1 lakh on 08.05.1988, A.S. Pongainna had assigned his rights in the agreement dated 30.07.1987 executed between him and late A. Radhakrishnan, in his favour, therefore, he called upon the appellants to execute the sale deed of the suit premises in his favour.

11) The appellants then filed Eviction Petition bearing R.C.O.P. No. 26 of 1998 in the Court of the Rent Controller (District Munsif) Erode against respondent No. 1 out of which the present appeal arises seeking eviction of respondent No.1 from the suit premises under Sections 10 (2) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (in Short “the Act”). The eviction was sought essentially on two grounds, namely, willful default in paying monthly rent since 12.02.1989 and secondly, bona fide need for the use and residence of the appellants in the suit premises because according to the appellants they were residing in rented accommodation and had no other suitable house of their own in the city where they could live.

12) Vide order dated 21.12.1998, the Court of the Subordinate Judge, Erode decreed O.S. No. 87 of 1989 filed by respondent No.1 against the appellants on the basis of an endorsement made by the appellants and passed a permanent injunction restraining the appellants from interfering with the peaceful enjoyment of respondent No.1 over the suit property and from dispossessing him till he was evicted under a due process of law.

13) Vide order dated 05.01.1999, O.S. No. 53/1989 (which was renumbered as O.S. No. 549/1989) was dismissed as not pressed by the appellants.

14) So far as the eviction petition out of which this appeal arises is concerned, the Rent Controller allowed RCOP No. 26 of 1998 filed by the appellants vide order dated 31.10.2000 and directed the eviction of respondent No.1 from the suit premises. It was held that the appellants are the owners/landlords of the suit premises. It was also held that respondent No. 1 is in occupation of the suit premises as tenant. It was further held that respondent No. 1 has committed willful default in paying the monthly rent and being a defaulter in payment of rent is liable to be evicted from the suit premises. It was also held that the appellants have proved bona fide need for their personal residence in the suit premises because they were living in the rented house at a place called Salem. The appellants were, therefore, held entitled to claim eviction of respondent No. 1 from the suit premises on these findings.

16) Against the said order, the respondent filed a revision petition being C.R.P. No. 337 of 2002 before the High Court. The High Court, by judgment dated 19.12.2003, dismissed the revision petition filed by respondent No.1.

19) As a result of review being allowed C.R.P. No. 337/2002 was restored to file for its hearing on merits. The High Court, this time, by impugned order dated 11.07.2007 allowed the revision filed by respondent No.1 on two legal grounds and set aside the order of the first appellate Court and also of Rent Controlling Authority. As a consequence, thereof, the eviction petition (RCOP No.26 of 1998) filed by the appellants was dismissed. It was held that the eviction petition filed by the appellants is not maintainable because the daughter of Late A. Radhakrishnan, Tmt. R. Kanjana was not made a party to the eviction petition. According to the High Court she being one of the co-owners of the suit premises was a necessary party to eviction petition. It was also held that appellants failed to establish the relationship of landlord and tenant with the respondent No.1 and on the other hand it appeared that tenancy in relation to suit property was between Dhanapal and respondent No.1. The High Court thus allowed the respondents’ revision essentially on these two grounds

39) In view of foregoing discussion, we can not concur with the finding of the High Court and while reversing the finding hold that the eviction petition can not be dismissed on the ground of non-joinder of Tmt. R. Kanjana – the daughter of late A. Radhakrishnan and is held maintainable.

40) Now coming to the question as to whether the tenancy was between the appellants and respondent No.1 or whether it was between Dhanapal and respondent No.1, we are of the considered view that to begin with the tenancy was between A. Radhakrishanan and respondent No.1 and on the death of A. Radhakrishnan, it was created between the appellants being the Class- I heirs of A. Radhakrishnan and respondent No.1 by operation of law.

44) In view of the foregoing discussion, we are of the considered opinion that the High Court was not right in holding that the tenancy in relation to suit premises was with Dhanapal. We cannot thus concur with the finding of the High Court and accordingly reverse the finding and hold that the appellants were able to prove that the tenancy in relation to the suit premises was between A. Radhakrishnan and respondent No.1 and on the death of A. Radhakrishnan, it was created between the appellants and respondent No.1 by operation of law which entitled the appellants to maintain the eviction petition against respondent No.1 seeking his eviction on the grounds available to them under the Act.

45) Since the High Court allowed the revision filed by respondent No.1 on the aforementioned two grounds only, which we have reversed in preceding paras, the revision petition filed by the respondent No.1 deserves to be dismissed. That apart keeping in view the law laid down by this Court in Hindustan Petroleum Corporation Limited Case (supra), the concurrent findings of facts recorded by the Rent Controller and affirmed by the first appellate Court in appellants’ favour on the issue of appellants bona fide need for their personal residence and default committed by respondent No.1 in paying rent to the appellants were binding on the High Court.

48) In the light of foregoing discussion, the appeal succeeds and is hereby allowed. The impugned judgment is set aside and that of the judgment of the first appellate Court dated 28.06.2001 in R.C.A. No. 5 of 2001 is restored. As a consequence thereof, the eviction petition filed by the appellants against respondent No.1 in relation to the suit premises is allowed. Respondent No.1 is, however, granted three months’ time to vacate the suit premises from the date of this judgment subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further on depositing all arrears of rent (if there are any arrears still due and not paid) till date at the same rate at which they had been paying monthly rent to the appellants and would also deposit three months’ rent in advance by way of damages for use and occupation. Let the undertaking, arrears of rent, damages for three months and cost awarded by this Court be deposited within 15 days from the date of this judgment. The appellants on such deposit being made would be entitled to withdraw the same after proper verification.

49) The appeal is accordingly allowed with costs which is quantified at Rs.5000/- to be paid by respondent No.1 to the appellants.