Section 10(2)(ii)(a) and 10(3)(a)(iii)(b) of the Rent Control Act, bona-fide requirement - sublet the premises without permission , = On being shown Ex.P7 photographs, and on being asked whether the persons on the northern side of Ex.P7 Photograph, were the sub-lessees doing business, RW.1 stated that Saheli Suits was a shop run by him as its owner; and on Sundays he only opens his shop, but he did not know who was doing business in front of his shop on either side. As the respondent-tenant, in his evidence affidavit, had stated that he was carrying on business in the name and style of R.S. Enterprises, it is evident that Saheli Suits was not the name of his shop, and the business being carried on in the name and style of Saheli Suits, in the subject property, was by a third party and not the respondent-tenant. No evidence was adduced by the respondent-tenant to establish that Saheli Suits was a partnership firm of which he was a partner. The concurrent findings of fact recorded by both the Courts below, that the respondent-tenant had sublet the premises to Saheli Suits without permission of the petitioners-landlords, is based on the evidence on record, and does not necessitate interference in revision proceedings under Section 22 of the Act. Both on the ground of bona-fide requirement, and on the ground that the respondent-tenant had sublet the premises without permission of the petitioners-landlords, both the Courts below were justified in directing his eviction from the subject premises. The order under revision does not necessitate interference.
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION NO.2521 OF 2016
08-07-2016
Cheela Narayanarao and another..Petitioners
R.Ajay Kumar. Respondent
Counsel for petitioners: Sri J. Prabhakar, Learned Counsel
appearing on behalf of Sri J. Venkateswara Reddy
Counsel for respondent: Sri Manu
<GIST:
>HEAD NOTE:
? Citations:
1)(1990) 4 SCC 286
2)(1995) 6 SCC 580
3)AIR 1994 Delhi 212
4)(2002) 6 SCC 1 = AIR 2002 SC 2562
5)AIR 1988 SC 1365
6)(2006) 1 ALT 103 (DB) = 2006 (1) LS 54
7)AIR 2008 (NOC) 1341 (Mad.)
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION No.2521 of 2016
ORDER:
Aggrieved by the order passed by the Additional Chief Judge,
City Small Causes Court, Hyderabad in RA No.192 of 2015 dated
06.04.2016, dismissing the appeal preferred by the respondent-
tenant against the order of the Additional Rent Control,
Secunderabad in RC No.112 of 2013 dated 15.09.2015, this
revision, under Section 22 of the A.P. Buildings (Lease, Rent &
Eviction) Control Act, 1960 (hereinafter called the Rent Control
Act), is filed by the tenant in R.C. No.112 of 2013. Parties shall,
hereinafter, be referred to as they are arrayed in R.C. No.112 of
2013.
The petitioners-landlords filed R.C. No.112 of 2013, under
Section 10(2)(ii)(a) and 10(3)(a)(iii)(b) of the Rent Control Act,
seeking a direction to the respondent-tenant, and all others
claiming under or through him, to vacate and deliver vacant,
peaceful, physical and legal possession of the petition schedule
premises to them. The petitioners filed R.C. No.112 of 2013
claiming to be the absolute owners of premises No.2-1-1 and 2-1-
192 (old Mulgi No.1222), consisting of the ground and first floors
admeasuring 810 square feet situated at General Bazaar,
Secunderabad, by virtue of a Will executed by their grandmother
Smt. Cheela Kanakalakshmi in their favour on 10.12.2006; Smt.
Cheela Kanakalakshmi was the owner of the petition schedule
property by virtue of a registered sale deed dated 03.05.1957
executed by her vendor in her favour; Smt. C. Kanakalakshmi
expired on 17.02.2008; they entered into a registered partition
deed on 29.10.2013; the subject property was let out by their
grand-mother to the grand-father of the tenant i.e., R. Kanakaiah
and, after his death, his son R. Laxman Rao carried on business in
the said property; the respondent-tenant was in occupation of the
petition schedule property paying a monthly rent of Rs.950/-; the
respondent owned several commercial properties in the same
locality; he had filed R.C.No.170 of 2002 against their grand
mother Smt. C. Kanakalakshmi and their father Sri C. Ramulu, for
deposit of monthly rent of Rs.950/-, which was allowed; the first
petitioner needed the entire premises for his personal requirement
for commencing textiles and readymade garment business; the
petitioners do not have any other non-residential premises, except
the petition schedule property in the twin cities of Secunderabad
and Hyderabad; the second petitioner is in private service, and
has no objection to the first petitioner carrying on the proposed
business; the second petitioner may also join as a partner in the
said business; the respondent-tenant had illegally sublet a major
portion of the ground floor of the subject mulgi to a third party
who was carrying on business under the name and style of Saheli
Suits; the respondent had also allowed several petty vendors to
carry on business in front of the premises by collecting a hefty
license fee per day; he was not revealing details of the sub-tenant,
and the quantum of rent being collected by him; the petitioners
came to know, through reliable sources, that the respondent was
collecting Rs.750/- per day from the said third party i.e., Saheli
Suits; and subletting of the subject property by the respondent was
without the written or oral consent of the landlords, and was
unlawful.
In his counter the respondent-tenant denied the allegations
contending that the petitioners were not his landlords and neither
had he ever paid rent to them nor had they claimed rent at any
time as owners of the subject property. While admitting that the
subject property belonged to Smt. C. Kanakalakshmi, the
respondent-tenant contended that her son C. Sriramulu, (father of
the petitioners-landlords) was the person collecting rents; the
subject property was let out to his grandfather who had
constructed the subject premises thereon at his cost with the
consent of the original owner Smt. C. Kanakalakshmi, and her son
Sri C. Sriramulu; the respondent was a tenant of the petition
schedule property on a monthly rent of Rs.950/-; he was regularly
paying rents to Sri C. Sriramulu who failed to collect the rents that
were due in the year 2002; as such he was compelled to file the
petition in R.C. No.192 of 2002 for deposit of rent; the said R.C.
was allowed, and the respondent was depositing the entire one
year rent in advance, from the date the said petition was allowed;
the deposited amount in the said R.C was withdrawn by Sri C.
Sriramulu by filing a cheque petition; rent of Rs.11,400/- was paid
by cheque No.5361104; Sri C. Sriramulu received rent from Court
for Rs.36,100/- by way of cheque No.536071; the relationship
between the respondent and Sri C. Sriramulu was that of tenant-
landlord; the petitioners, who claimed to be the sons of Sri C.
Sriramulu, had failed to prove their rights over the subject
property; the petitioners grand-mother Smt. Cheela
Kanakalakshmi did not execute any Will in their favour as she died
intestate; the subject Will was not even registered; the age of the
testatrix, when the Will was executed, was 93 years; neither the
Will nor the physical and mental condition of the testatrix was
verified by any medical practitioner; the said Will bears her thumb
impression as the testatrix was an illiterate lady; the name of the
person, who was the scribe of the Will, was not even mentioned;
neither had he sublet the subject mulgi to others nor had he
collected huge rents; and he was permitted in writing, both by Smt.
C. Kanakalakshmi and Sri C. Sriramulu, to carry on business
either in his individual capacity, or in partnership with any third
party as partners, by executing an agreement.
In his order in R.C. No.112 of 2013 dated 15.09.2015, the
Rent Controller held that the petitioners, who were the sons of Sri
C. Sriramulu and the grandsons of Smt. C. Kanakalakshmi, were
legally entitled to receive rents from the petition schedule property
in view of Section 2(vi) of the Act; the respondent-tenant could not
question the validity of the Will as no right was conferred on him to
do so; it was not open to him to contend that the petitioners had
no valid title; the question of title was not germane to the rent
control case; the Will was not required to be proved; the
jurisdiction of the Rent Controller was limited; the validity of the
Will or the succession of the parties or question of title would not
be examined in Rent Control proceedings; there was no specific
denial by the respondent-tenant that the petitioners-landlords
would not require the subject property for their bonafide
requirement; the petitioners had pleaded that they did not have
any non-residential premises except the subject property in
Hyderabad and Secunderabad; this assertion was not denied by
the respondent in the counter; the respondent did not plead that
the petitioners were in occupation of other non-residential
premises in the twin cities; his contention was that the petitioners
had colluded with Sri C. Sriramulu who was the son of Smt. C.
Kanakalakshmi; it was not the case of the respondent-tenant that
Sri C. Sriramulu was not the son of Smt.C. Kanakalakshmi or that
the petitioners were not his sons; the father had asked for the
bonafide requirement of his son, as the property was owned by
them; the respondent had admitted that Sri C. Sriramulu used to
collect rents even after the demise of Smt. C. Kanaka Lakshmi; the
tenancy was admitted; the person, who was collecting rents from
the respondent, was none other than the father of the petitioners;
the respondent was paying rents to him without any protest; and,
therefore, the jural relationship of the parties was proved.
The Rent Controller observed that, in the present case, the
petitioners had pleaded that they required the subject property to
start a readymade garment business; a blanket denial by the
respondent that the petitioners did not require the subject
property, and had no experience in textile business, could not be
accepted; Smt. C Kanakalakshmi died in the year 2008; from the
year 2008 till the date of filing the present R.C, the respondent did
not take any steps to file a petition under Section 9(3) of the Act if
he entertained any doubt regarding ownership of the subject
property by the petitioners; the respondent could not challenge the
Will in the status of a tenant; the respondent had failed to
establish that the petitioners were in possession of some other
non-residential building which was suitable for commencing their
new business; the requirement of the petitioners was for their
bona-fide personal requirement to commence textile and
readymade garment business in the subject property as the entire
locality was purely a readymade garment business locality; and the
respondent was liable to be evicted from the petition schedule
property on this ground.
The Rent Controller further observed that Ex.P-7 photograph
showed that there were petty vendors in front of the subject
property; Ex.P-7 gave a clear picture of the petty vendors, and also
that of Saheli Suits shop in the ground floor of the subject
property; and this was enough to establish that the respondent
had sublet the ground floor of the subject property. The Rent
Controller concluded that there was a jural relationship between
the petitioners and the respondent; the petitioners, who were the
grandsons of the original owner Smt. C. Kanakalskshmi, were
entitled to receive rents from the respondent; the petitioners had
also proved that their requirement of the subject property, to
commence textile and readymade garment business, was bona-
fide; they had also proved that the respondent had sublet the
ground floor of the subject property to Saheli Suits; and, on these
grounds, the respondent-tenant was liable to be evicted from the
petition schedule premises. The respondent-tenant was directed to
vacate the premises within sixty days from the date of the order,
failing which the petitioners-landlords were given liberty to evict
him from the subject property in accordance with law.
On the respondent-tenant carrying the matter in appeal, the
Additional Chief Judge, City Small Causes Court, Hyderabad, in
his order in R.A. No.192 of 2015 dated 06.04.2016, held that the
respondent, who was only a tenant in the subject property, had no
right to question the validity of the Will; persons, who were entitled
to question the validity of the Will, were only the legal heirs of Smt.
C. Kanaka Lakshmi; the jurisdiction of the Rent Controller and the
Appellate Authority was limited and it could not, as a Civil Court,
decide the dispute relating to title over the property; the
respondent-tenant had suggested to PW.2 (father of the
petitioners-landlords), during cross-examination, that he was not
present at the time of execution of the Will by his mother; PW.2
denied the suggestion and this indicated that, according to the
respondent-tenant, the mother of PW.2, who happened to be the
paternal grandmother of the petitioners-landlords, had executed
the Will, and at the time of execution PW.2 was not present; in his
evidence PW.2 had stated that, by virtue of Ex.P3 Will, the
petitioners had become the owners of the subject property and its
landlords; the respondent-tenant automatically became the tenant
of the petitioners and, in between them, a jural relationship came
into existence; they had every right to ask for the subject property
for their personal bona-fide occupation; the respondent-tenant
had failed to furnish any details of the non-residential
accommodation which he alleged was owned by the petitioners;
even if the first petitioner had no experience in textile business, the
petitioners, being the owners of the subject property, were entitled
to seek eviction of the respondent-tenant from the subject property
on the ground of personal bona-fide requirement; and they were
able to place convincing evidence to establish that their personal
bona-fide requirement was genuine.
The Appellate Court further held that the photographs in
Ex.P7 disclosed the existence of Saheli Suits in the subject
property; the respondent-tenant did not deny the contents of Ex.P7
photograph; according to him, the business of Saheli Suits was
being carried on by him in partnership, and he relied on Ex.R-1 in
this regard; he further stated that he did not sublet it to any one as
alleged; in his evidence in chief-affidavit, the respondent-tenant
had mentioned that he had carried on business under the name
and style of R.S. Enterprises in the subject property; as he had
himself claimed that he was carrying on business in the name and
style of R.S. Enterprises, there was no necessity for him to enter
into a partnership with Saheli Suits; his evidence was self-
contradictory; if really he was in partnership with others, and was
carrying on business under the name and style of Saheli Suits in
the subject property, he would have mentioned the names of his
partners, and would have stated whether the partnership was oral
or in writing; and the contradictory versions in the evidence in
chief of the respondent-tenant indicated that he had sublet the
petition schedule property to a third party i.e. Saheli Suits. The
Appellate Court dismissed the appeal without costs confirming the
eviction order passed, in R.C. No.112 of 2013 dated 15.09.2015, by
the Additional Rent Controller, Secunderabad. The respondent-
tenant was directed to vacate and handover vacant possession of
the subject property to the petitioners-landlords within two months
from the date of the judgment, failing which, the petitioners-
landlords were given liberty to seek his eviction under due process
of law.
Before this Court Sri J. Prabhakar, Learned Counsel
appearing on behalf of Sri J. Venkateswara Reddy, Learned
Counsel for the respondent-tenant, would submit that there is no
jural relationship of landlords and tenant between the petitioners
and the respondent; in the absence of a jural relationship, R.C.
No.112 of 2013 was not maintainable; while a tenant was no doubt
disentitled to dispute the Will more so in rent control proceedings,
it was open to him to show that the Will was not genuine to show
lack of jural relationship between the petitioner and himself as
landlords and tenant; as the claim of respondent-tenant is bona-
fide, the petitioners-landlords should have been relegated to the
remedy of a civil suit, and not to invoke the jurisdiction of the Rent
Controller; there was no attornment of the tenancy by the
respondent; the proviso to Section 10 of the Rent Control Act bars
institution of proceedings for three months from the date of
acquisition; the attornment took place only when the father of the
petitioners-landlords entered into the box, and not earlier when the
Rent Control case was filed; the respondent-tenant was never
informed, at any time before the present rent control proceedings
were instituted, that the petitioners had become the owners of the
subject property; the burden of proving their bona-fide
requirement was on the petitioners-landlords; mere assertion that
they intend starting a readymade garment business is insufficient;
some proof ought to have been adduced to show that their claim is
genuine; the vague statement of PW.1, of opening a garment shop
would not constitute sufficient proof of bona-fide requirement; both
the Courts below erred in holding that there were hawkers outside
the premises; the burden of establishing that the respondent-
tenant had sublet the premises was on the petitioners-landlords;
both the Courts below had misconstrued the lease-deed; the
finding recorded by the Court below were perverse as the burden
was shifted by them on to the tenant; and proceedings not on
record cannot be considered in the present revision petition.
On the other hand Sri Manu, Learned Counsel for the
petitioner-landlords, would submit that the landlady, the original
owner of the subject property, expired in the year 2008; by virtue
of the Will, the petitioners became the owners of the subject
property; it is not open to the tenant to dispute the title of the
landlords in proceedings under the Rent Control Act; there is no
provision under the Rent Control Act contrary to Section 109 of the
Transfer of Property Act (TP Act for short) prescribing attornment
by the tenant as a pre-condition for instituting proceedings for
eviction thereunder; there was no denial by the respondent-tenant,
in his counter, regarding the petitioners-landlords bona-fide
requirement of the subject property; the concurrent finding
recorded by both the Courts below establish that the respondent-
tenant had sublet the premises; and, as these findings are not
perverse, this Court would not interfere therewith in proceedings
under Section 22 of the Rent Control Act.
Section 10 of the Rent Control Act relates to eviction of
tenants and sub-section (1) thereof stipulates that the tenant shall
not be evicted, whether in execution of a decree or otherwise,
except in accordance with the provisions of Sections 10, 12 or 13
of the Act. The proviso thereto stipulates that, where the tenant
denies the title of the landlord, the controller shall decide whether
the denial or claim is bonafide 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, and the Court may pass a decree for eviction on
any of the grounds mentioned in the said Section, notwithstanding
that the Court finds that the claim is unfounded. In the present
case both the Courts below have held that the respondent-tenants
denial of title of the petitioner-landlords was unfounded i.e., it was
not bonafide; and the petitioners were the landlords of the subject
property of which the respondent was the tenant.
In proceedings for eviction of a tenant, the Court will take
only a prima facie decision on the collateral issue whether the
applicant was the landlord. The Court is only required to satisfy
itself that the person seeking eviction is a landlord who has, prima
facie, the right to receive the rent of the property in question. In
order to decide whether denial of the landlords title by the tenant
is bona fide, the Court may have to go into the tenants contention
on the issue, but the Court is not to decide the question of title
finally as it has only to ascertain whether, in the circumstances of
the case, the tenants denial of title of the landlord is bonafide.
(LIC v. India Automobiles & Co. ; Ranbir Singh (Dr) v. Asharfi
Lal ).
The fact that the subject property belongs to Smt. C. Kanaka
Lakshmi has been admitted by the respondent-tenant. What has
been disputed is the petitioners-landlords claim to ownership of
the subject property on the basis of a Will executed in their favour
by Smt. C. Kanakalakshmi. The respondent-tenant contends that,
consequent on the death of Smt. C. Kanaka Lakshmi, it is her son
Sri C. Sriramulu (father of the petitioners) who became the owner
of the subject property; as the present proceedings was instituted
not by him, but by his sons, there is absence of a jural relationship
of landlord and tenant between the sons of Sri C. Sriramulu and
the respondent-tenant; and the petitioners are, therefore, not
entitled to seek his eviction. Emphasis is placed by Sri J.
Prabhakar, Learned Counsel appearing on behalf of the
respondent-tenant, on the fact that, way back in the year 2010, it
was Sri C. Sriramulu who received the money deposited by the
respondent-tenant in the Court. Learned Counsel would rely on
Ranbir Singh (Dr)2 in this regard.
In the petition filed in R.C. No.112 of 2013, the petitioners
stated that they were the absolute owners of the subject property
by virtue of the Will executed in their favour by their grandmother
Smt. C. Kanaka Lakshmi on 10.12.2006, and that Smt. C. Kanaka
Lakshmi expired on 17.2.2008. In the counter filed thereto, the
respondent-tenant asserted that the petitioners were not the
landlords, they had never claimed any rent from him as the
owners, the subject property belonged to Smt. C. Kanaka Lakshmi,
it was her son Sri C. Sriramulu (father of the petitioners) who was
collecting rents from him since a very long time, the relationship
between him and Sri C. Sriramulu was that of landlord and tenant
and the petitioners, who claimed to be the landlords, had to prove
their right over the subject property. While contending that Smt.
C. Kanaka Lakshmi died intestate and was not in a condition to
execute any Will bequeathing the property in favour of the
petitioners, the respondent-tenant also contended that the alleged
Will was not registered, and the mental condition of Smt. C.
Kanakalakshmi had not been verified by any medical practitioner.
Sri C. Sriramulu was the 2nd respondent in R.C. No.179 of
2002 filed by the respondent-tenant, and Smt. C. Kanaka Lakshmi
was the first respondent therein. The order of the Additional Rent
Controller, in R.C. No.179 of 2002 dated 25.07.2003, takes note of
the assertion of Sri C. Sriramulu in cross-examination that it was
Smt. C. Kanaka Lakshmi who was the absolute owner and
landlady of the subject property. The mere fact that, after the
death of Smt. C. Kanaka Lakshmi, Sri C. Sriramulu (i.e the 2nd
respondent in R.C.No.179 of 2002), had collected the rent, which
the respondent-tenant had deposited in Court to the credit of R.C.
No.179 of 2002, would not make him the owner of the property or
the landlord as the amounts so deposited could also have been
collected by him on behalf of the petitioners who became the
landlords of the subject property subsequent to the death of Smt.
C. Kanaka Lakshmi on 17.02.2008.
Clause (iii) of Section 3 of the Rajasthan Premises (Control of
Rent and Eviction) Act, 1950 defines landlord to mean any person
who, for the time being, was receiving or was entitled to receive the
rent of any premises, whether on his own account or as an agent,
trustee, guardian or receiver for any other person or who would so
receive or be entitled to receive the rent, if the premises were let to
a tenant. Clause (vii) of Section 3 of the said Act defined tenant as
the person by whom or on whose account or behalf rent is or, but
for a contract express or implied, would be payable for any
premises to his landlord including the person who is continuing in
its possession after the termination of his tenancy otherwise than
by a decree for eviction passed under the provisions of the Act.
While considering these provisions the Supreme Court, in Ranbir
Singh (Dr)2), observed that the question of title of the property is
not germane for a decision in an eviction suit; where the plaintiff
institutes a suit for eviction of his tenant, based on the
relationship of landlord and tenant, the scope of the suit is limited
in which the question of title cannot be gone into; the plaintiffs
Suit would be dismissed even if he succeeds in proving his title but
fails to establish privity of the contract of tenancy; and in a suit for
eviction the Court has only to decide whether the defendant is the
tenant of the plaintiff or not, though the question of title, if
disputed, may be incidentally gone into in connection with the
main question regarding the relationship between the litigating
parties.
Section 2(vi) of the Rent Control Act defines landlord to
mean the owner of a building and includes a person who is
receiving, or is entitled to receive the rent of a building, whether on
his own account or on behalf of another person or on behalf of
himself and others or as an agent, trustee, executor, administrator,
receiver or guardian or who would so receive the rent or be entitled
to receive the rent, if the building were let out to a tenant. Sri C.
Sriramulu, the son of Smt. C. Kanaka Lakshmi, himself deposed as
PW.2 that his sons, who were the petitioners in R.C. No.112 of
2013, were the absolute owners of the subject property by virtue of
a Will executed in their favour by his mother Smt. C. Kanaka
Lakshmi on 10.12.2006 in a sound state of mind; his mother
expired on 17.02.2008; and, after 17.02.2008, his sons were the
absolute owners and the landlords of the subject property. As has
been rightly observed by both the Courts below, it is not open to
the respondent-tenant to question the genuineness of the Will, or
the title of the petitioners-landlords over the subject property, in
rent control proceedings. Both the Courts below rightly held that
these are all matters extraneous to the proceedings under the Act.
As the petitioners are the owners of the building, having been
bequeathed the property under the Will executed in their favour by
their grandmother Smt. C. Kanaka Lakshmi, they are entitled, as
the landlords, to institute proceedings, for eviction of the
respondent-tenant under the Act, before the Rent Controller. The
contention, that the petitioners were not the landlords and there is
no jural relationship of landlords and tenants between them and
the respondent-tenant, does not therefore merit acceptance.
The contention that there was no attornment of the tenancy
by the respondent-tenant, the attornment took place only when Sri
C. Sriramulu deposed as PW.2 and not before the Rent Control
case was filed, and therefore, R.C.No.112 of 2013 is not
maintainable, is only to be noted to be rejected. To attorn means
to agree to become a tenant of one as the owner, or as a landlord of
a property previously owned or held by another, or to agree to
recognise a new owner of a property or estate and to promise
payment of rent to him. (Estoppel by Representation by Spencer
Bower & Turner-III Edn.). The word "attorn" means 'transfer:
make legal acknowledgment of a new landlord.' "To attorn" merely
means to acknowledge the relationship of a tenant to a new
landlord. "Attornment" by the tenant would mean acceptance of
the new owner as the landlord, and would estop the tenant from
disputing the landlord's title thereafter. Payment or non-payment
to a new landlord does not affect the relationship created by
attornment. "Attornment" also implies continuity of tenancy,
though the landlord might change when title to the property
passes by sale or otherwise. (Mohd. Ilyas v. Mohd. Adil ; Black's
Law Dictionary; Legal Glossary (1988 Edition) issued by the
Ministry of Law & Justice; Concise Oxford Dictionary).
The common law rule that a landlord cannot split the unity
and integrity of the tenancy, so as to result in possession over a
part of the demised premises being recovered from the tenant, does
not apply in India because of Section 109 of the TP Act which
provides a statutory exception to this rule and does away with the
need for a consensual attornment. The attornment is brought
about by operation of law, and does not need the consent of the
tenant. (Nalakath Sainuddin v. Koorikadan Sulaiman ; Mohar
Singh v. Devi Charan ). Section 109 of the TP Act makes it clear
that the landlord can transfer his property in favour of a third
party during the subsistence of the lease, and the consent of the
tenant is not necessary. In the light of Section 109 of the TP Act
attornment automatically follows, on the transfer of property, on
the same terms and conditions on which the transferor entered
into the lease agreement with the tenant unless there is a contract
to the contrary. (Shankaramma v. Mohd. Abdul Hameed ).
Attornment of tenancy is not a pre-condition, under Section
109 of the TP Act, for a landlord to initiate proceedings against his
tenant. Even if no notice is issued by the landlord, after taking a
sale deed in his favour in respect of the subject property from the
original owner, a Suit for eviction is maintainable. (Natarajan v.
Manimegalai ). Attornment automatically follows on the transfer of
property on the same terms and conditions on which the transferor
entered into a lease agreement with the tenant unless there is a
contract to the contrary. (Shankaramma6). The consent of the
tenant is unnecessary to transfer the property in favour of a third
party. Since attornment is not necessary under Section 109 of the
TP Act, the tenant cannot dispute the right of the transferee to
maintain a suit for eviction or to claim rent. A transferee of the
landlord's rights steps into the shoes of the transferor-landlord,
with all the rights and liabilities in respect of the subsisting
tenancy. This Section does not insist that the transfer of the
landlord's rights can take effect only if the tenant attorns.
(Shankaramma6).
There is no specific provision under the Rent Control Act
providing for a situation contrary to Section 109 of the TP Act. The
concept of attornment of tenancy governed by Section 109 of the
TP Act, and the lessor and lessee relationship, are applicable to
proceedings under the Rent Control Act also. (Shankaramma6).
The transferee of a landlord is thus entitled to collect rent as of
right and he is a landlord under the inclusive definition in Section
2(vi) of the Rent Control Act. (Shankaramma6). A transferee of the
landlord's rights steps into the shoes of the transferor-landlord
with all the rights and liabilities in respect of the subsisting
tenancy. The statute does not insist that transfer of the landlord's
rights can take effect only if the tenant attorns. Attornment by the
tenant being unnecessary, to confer validity on the transfer of the
landlord's rights, the tenant cannot dispute the right of the
transferee-landlord to maintain an application for eviction or to
claim rent. (Shankaramma6). As attornment by the respondent-
tenant is unnecessary, the petitioners-landlords were entitled to
institute proceedings under the Rent Control Act for eviction of the
respondent-tenant and the contention, that the Rent Control
proceedings in R.C.No.112 of 2013 was not maintainable, in the
absence of attornment prior to its institution, therefore
necessitates rejection.
Under the proviso to Section 10(3) of the Act, a person who
becomes a landlord after the commencement of the tenancy by an
instrument inter vivos shall not be entitled to apply under this
clause before the expiry of three months from the date on which
the instrument was registered. Reliance placed by Sri J.
Prabhakar on the aforesaid proviso is misplaced as the rent control
proceedings were instituted in the year 2013, more than five years
after the death of Smt. C. Kanakalakshmi in the year 2008, and
nearly seven years after the Will was executed on 10.12.2006 by
Smt. C. Kanakalakshmi in favour of her grandsons i.e., the
petitioner in the rent control proceedings. While the petitioners no
doubt became the landlords after commencement of the tenancy
(as the subject premises was let out to the respondents grand
father by Smt. C. Kanakalakshmi), their title to the property is in
terms of the Will which is not compulsorily registerable. The
proviso to Section 10(3) of the Act has, therefore, no application.
Section 10(3)(a)(iii)(b) of the Rent Control Act enables a
landlord, subject to the provisions of clause (d), to apply to the
Controller for an order directing the tenant to put the landlord in
possession of the building, in case it is a non-residential building,
if the landlord is not capable of occupying a non-residential
building in the city, which is his own or to the possession of which
he is entitled whether under the Act or otherwise for the purpose of
a business which, in the opinion of Controller, the landlord
bonafide proposes to commence.
The specific assertion in the petition filed in R.C.No.112 of
2013, that the first petitioner required the subject property for his
personal requirement i.e to commence a textile readymade
garments business, was not denied in the counter filed by the
respondent-tenant. In his evidence as PW.1, the first petitioner
stated that he needed the subject property for his personal
requirement for commencing a textile readymade garments
business. In cross-examination the first petitioner denied carrying
on printing press business. Sri C. Sreeramulu, in his evidence as
P.W-2, deposed that the subject property was required by the
petitioners to commence a textile and readymade garments
business. Both the Courts below were satisfied that the petitioners
required the subject property to start a readymade garments
business, and their requirement was bonafide. I see no reason to
take a different view from that of the Courts below as the aforesaid
findings are supported by the evidence on record.
Section 10(2) of the Act stipulates that a landlord, who seeks
to evict his tenant, shall apply to the Controller for a direction in
that behalf. Section 10(2)(ii)(a) of the Act provides that if the
controller, after giving the tenant a reasonable opportunity of
showing cause against the application, is satisfied that the tenant
has, without the written consent of the landlord, transferred his
right under the lease or has sub-let the entire building or any
portion thereof if the lease does not confer on him any right to do
so, 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.
In support of their claim that the respondent-tenant had
sublet the premises to Saheli Suits, the petitioners have asserted in
their petition that the respondent-tenant had illegally sublet a
major portion of the ground floor of the subject property to a third
party, the said third party was carrying on business under the
name and style of Saheli Suits, and they came to know that the
respondent-tenant was collecting Rs.750/- per day from the said
third party. They also asserted that the respondent-tenant had
allowed several petty vendors to carry on business, in front of the
subject property, on the steps and on the pail, collecting hefty
license fee per day. While denying having sublet the premises, the
respondent-tenant stated in his counter that Sri C. Kanaka
Lakshmi and Sri C. Sriramulu had permitted him in writing to
carry on any business either in his individual capacity or in
partnership with any third party as partners by executing an
agreement. In his evidence affidavit, the respondent-tenant stated
that he was carrying on business in the subject premises under
the name and style of R.S. Enterprises; both Smt. C. Kanaka
Lakshmi and her son Sri C. Sriramulu had given in writing that
the respondent-tenant could be permitted to enter into a
partnership with Saheli Suits; and as such the allegation, that they
had illegally and without the written consent of the petitioners
sublet the premises, was false.
As has been held by the Appellate Court, the respondent-
tenant has taken contradictory stands. On the one hand, he
contended that Saheli Suits was a shop run by him as its owner,
and on the other he stated that Smt. C. Kanaka Lakshmi and Sri
C. Sriramulu had consented in writing that he could sublet the
subject property, and the consent was given on a stamp paper. He
denied the suggestion that there was no such document, hence he
did not file it before the Court, and he was deposing falsely about
the document. In his evidence affidavit, the respondent-tenant
stated that he was permitted to let out the subject property by
entering into a partnership with Saheli Suits. The fact, however,
remains that it is not even his case that he was authorized to
sublet the premises to a third party.
The fact that the business was being carried on in the
subject premises, under the name and style of Saheli Suits, was
admitted by the respondent-tenant during his cross-examination
as RW.1. On being shown Ex.P7 photographs, and on being asked
whether the persons on the northern side of Ex.P7 Photograph,
were the sub-lessees doing business, RW.1 stated that Saheli Suits
was a shop run by him as its owner; and on Sundays he only
opens his shop, but he did not know who was doing business in
front of his shop on either side. As the respondent-tenant, in his
evidence affidavit, had stated that he was carrying on business in
the name and style of R.S. Enterprises, it is evident that Saheli
Suits was not the name of his shop, and the business being carried
on in the name and style of Saheli Suits, in the subject property,
was by a third party and not the respondent-tenant. No evidence
was adduced by the respondent-tenant to establish that Saheli
Suits was a partnership firm of which he was a partner. The
concurrent findings of fact recorded by both the Courts below, that
the respondent-tenant had sublet the premises to Saheli Suits
without permission of the petitioners-landlords, is based on the
evidence on record, and does not necessitate interference in
revision proceedings under Section 22 of the Act.
Both on the ground of bona-fide requirement, and on the
ground that the respondent-tenant had sublet the premises
without permission of the petitioners-landlords, both the Courts
below were justified in directing his eviction from the subject
premises. The order under revision does not necessitate
interference. The Civil Revision Petition fails and is, accordingly,
dismissed. The miscellaneous petitions pending, if any, shall also
stand dismissed. There shall be no order as to costs.
______________________________
RAMESH RANGANATHAN, J.
Date: 08-07-2016
After the judgment was pronounced, an oral request has
been made by Sri J.Venkateswara Reddy, learned counsel for the
respondent-tenant, that the respondent-tenant be granted four
months time to voluntarily vacate the said premises.
In case, the respondent-tenant files an affidavit of
undertaking before the Court below, within ten days from today,
undertaking to voluntarily and unconditionally vacate the premises
and hand over peaceful possession thereof to the petitioner-
landlords within four months from today, the petitioner-landlords
shall not take coercive steps to evict the respondent-tenant from
the subject premises. It is made clear that, in case an affidavit of
undertaking is not filed within ten days from today, it is open to
the petitioner-landlords to proceed and take action for eviction of
the respondent-tenant from the subject premises in accordance
with law.
______________________________
RAMESH RANGANATHAN, J.
Date: 08-07-2016
CIVIL REVISION PETITION NO.2521 OF 2016
08-07-2016
Cheela Narayanarao and another..Petitioners
R.Ajay Kumar. Respondent
Counsel for petitioners: Sri J. Prabhakar, Learned Counsel
appearing on behalf of Sri J. Venkateswara Reddy
Counsel for respondent: Sri Manu
<GIST:
>HEAD NOTE:
? Citations:
1)(1990) 4 SCC 286
2)(1995) 6 SCC 580
3)AIR 1994 Delhi 212
4)(2002) 6 SCC 1 = AIR 2002 SC 2562
5)AIR 1988 SC 1365
6)(2006) 1 ALT 103 (DB) = 2006 (1) LS 54
7)AIR 2008 (NOC) 1341 (Mad.)
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION No.2521 of 2016
ORDER:
Aggrieved by the order passed by the Additional Chief Judge,
City Small Causes Court, Hyderabad in RA No.192 of 2015 dated
06.04.2016, dismissing the appeal preferred by the respondent-
tenant against the order of the Additional Rent Control,
Secunderabad in RC No.112 of 2013 dated 15.09.2015, this
revision, under Section 22 of the A.P. Buildings (Lease, Rent &
Eviction) Control Act, 1960 (hereinafter called the Rent Control
Act), is filed by the tenant in R.C. No.112 of 2013. Parties shall,
hereinafter, be referred to as they are arrayed in R.C. No.112 of
2013.
The petitioners-landlords filed R.C. No.112 of 2013, under
Section 10(2)(ii)(a) and 10(3)(a)(iii)(b) of the Rent Control Act,
seeking a direction to the respondent-tenant, and all others
claiming under or through him, to vacate and deliver vacant,
peaceful, physical and legal possession of the petition schedule
premises to them. The petitioners filed R.C. No.112 of 2013
claiming to be the absolute owners of premises No.2-1-1 and 2-1-
192 (old Mulgi No.1222), consisting of the ground and first floors
admeasuring 810 square feet situated at General Bazaar,
Secunderabad, by virtue of a Will executed by their grandmother
Smt. Cheela Kanakalakshmi in their favour on 10.12.2006; Smt.
Cheela Kanakalakshmi was the owner of the petition schedule
property by virtue of a registered sale deed dated 03.05.1957
executed by her vendor in her favour; Smt. C. Kanakalakshmi
expired on 17.02.2008; they entered into a registered partition
deed on 29.10.2013; the subject property was let out by their
grand-mother to the grand-father of the tenant i.e., R. Kanakaiah
and, after his death, his son R. Laxman Rao carried on business in
the said property; the respondent-tenant was in occupation of the
petition schedule property paying a monthly rent of Rs.950/-; the
respondent owned several commercial properties in the same
locality; he had filed R.C.No.170 of 2002 against their grand
mother Smt. C. Kanakalakshmi and their father Sri C. Ramulu, for
deposit of monthly rent of Rs.950/-, which was allowed; the first
petitioner needed the entire premises for his personal requirement
for commencing textiles and readymade garment business; the
petitioners do not have any other non-residential premises, except
the petition schedule property in the twin cities of Secunderabad
and Hyderabad; the second petitioner is in private service, and
has no objection to the first petitioner carrying on the proposed
business; the second petitioner may also join as a partner in the
said business; the respondent-tenant had illegally sublet a major
portion of the ground floor of the subject mulgi to a third party
who was carrying on business under the name and style of Saheli
Suits; the respondent had also allowed several petty vendors to
carry on business in front of the premises by collecting a hefty
license fee per day; he was not revealing details of the sub-tenant,
and the quantum of rent being collected by him; the petitioners
came to know, through reliable sources, that the respondent was
collecting Rs.750/- per day from the said third party i.e., Saheli
Suits; and subletting of the subject property by the respondent was
without the written or oral consent of the landlords, and was
unlawful.
In his counter the respondent-tenant denied the allegations
contending that the petitioners were not his landlords and neither
had he ever paid rent to them nor had they claimed rent at any
time as owners of the subject property. While admitting that the
subject property belonged to Smt. C. Kanakalakshmi, the
respondent-tenant contended that her son C. Sriramulu, (father of
the petitioners-landlords) was the person collecting rents; the
subject property was let out to his grandfather who had
constructed the subject premises thereon at his cost with the
consent of the original owner Smt. C. Kanakalakshmi, and her son
Sri C. Sriramulu; the respondent was a tenant of the petition
schedule property on a monthly rent of Rs.950/-; he was regularly
paying rents to Sri C. Sriramulu who failed to collect the rents that
were due in the year 2002; as such he was compelled to file the
petition in R.C. No.192 of 2002 for deposit of rent; the said R.C.
was allowed, and the respondent was depositing the entire one
year rent in advance, from the date the said petition was allowed;
the deposited amount in the said R.C was withdrawn by Sri C.
Sriramulu by filing a cheque petition; rent of Rs.11,400/- was paid
by cheque No.5361104; Sri C. Sriramulu received rent from Court
for Rs.36,100/- by way of cheque No.536071; the relationship
between the respondent and Sri C. Sriramulu was that of tenant-
landlord; the petitioners, who claimed to be the sons of Sri C.
Sriramulu, had failed to prove their rights over the subject
property; the petitioners grand-mother Smt. Cheela
Kanakalakshmi did not execute any Will in their favour as she died
intestate; the subject Will was not even registered; the age of the
testatrix, when the Will was executed, was 93 years; neither the
Will nor the physical and mental condition of the testatrix was
verified by any medical practitioner; the said Will bears her thumb
impression as the testatrix was an illiterate lady; the name of the
person, who was the scribe of the Will, was not even mentioned;
neither had he sublet the subject mulgi to others nor had he
collected huge rents; and he was permitted in writing, both by Smt.
C. Kanakalakshmi and Sri C. Sriramulu, to carry on business
either in his individual capacity, or in partnership with any third
party as partners, by executing an agreement.
In his order in R.C. No.112 of 2013 dated 15.09.2015, the
Rent Controller held that the petitioners, who were the sons of Sri
C. Sriramulu and the grandsons of Smt. C. Kanakalakshmi, were
legally entitled to receive rents from the petition schedule property
in view of Section 2(vi) of the Act; the respondent-tenant could not
question the validity of the Will as no right was conferred on him to
do so; it was not open to him to contend that the petitioners had
no valid title; the question of title was not germane to the rent
control case; the Will was not required to be proved; the
jurisdiction of the Rent Controller was limited; the validity of the
Will or the succession of the parties or question of title would not
be examined in Rent Control proceedings; there was no specific
denial by the respondent-tenant that the petitioners-landlords
would not require the subject property for their bonafide
requirement; the petitioners had pleaded that they did not have
any non-residential premises except the subject property in
Hyderabad and Secunderabad; this assertion was not denied by
the respondent in the counter; the respondent did not plead that
the petitioners were in occupation of other non-residential
premises in the twin cities; his contention was that the petitioners
had colluded with Sri C. Sriramulu who was the son of Smt. C.
Kanakalakshmi; it was not the case of the respondent-tenant that
Sri C. Sriramulu was not the son of Smt.C. Kanakalakshmi or that
the petitioners were not his sons; the father had asked for the
bonafide requirement of his son, as the property was owned by
them; the respondent had admitted that Sri C. Sriramulu used to
collect rents even after the demise of Smt. C. Kanaka Lakshmi; the
tenancy was admitted; the person, who was collecting rents from
the respondent, was none other than the father of the petitioners;
the respondent was paying rents to him without any protest; and,
therefore, the jural relationship of the parties was proved.
The Rent Controller observed that, in the present case, the
petitioners had pleaded that they required the subject property to
start a readymade garment business; a blanket denial by the
respondent that the petitioners did not require the subject
property, and had no experience in textile business, could not be
accepted; Smt. C Kanakalakshmi died in the year 2008; from the
year 2008 till the date of filing the present R.C, the respondent did
not take any steps to file a petition under Section 9(3) of the Act if
he entertained any doubt regarding ownership of the subject
property by the petitioners; the respondent could not challenge the
Will in the status of a tenant; the respondent had failed to
establish that the petitioners were in possession of some other
non-residential building which was suitable for commencing their
new business; the requirement of the petitioners was for their
bona-fide personal requirement to commence textile and
readymade garment business in the subject property as the entire
locality was purely a readymade garment business locality; and the
respondent was liable to be evicted from the petition schedule
property on this ground.
The Rent Controller further observed that Ex.P-7 photograph
showed that there were petty vendors in front of the subject
property; Ex.P-7 gave a clear picture of the petty vendors, and also
that of Saheli Suits shop in the ground floor of the subject
property; and this was enough to establish that the respondent
had sublet the ground floor of the subject property. The Rent
Controller concluded that there was a jural relationship between
the petitioners and the respondent; the petitioners, who were the
grandsons of the original owner Smt. C. Kanakalskshmi, were
entitled to receive rents from the respondent; the petitioners had
also proved that their requirement of the subject property, to
commence textile and readymade garment business, was bona-
fide; they had also proved that the respondent had sublet the
ground floor of the subject property to Saheli Suits; and, on these
grounds, the respondent-tenant was liable to be evicted from the
petition schedule premises. The respondent-tenant was directed to
vacate the premises within sixty days from the date of the order,
failing which the petitioners-landlords were given liberty to evict
him from the subject property in accordance with law.
On the respondent-tenant carrying the matter in appeal, the
Additional Chief Judge, City Small Causes Court, Hyderabad, in
his order in R.A. No.192 of 2015 dated 06.04.2016, held that the
respondent, who was only a tenant in the subject property, had no
right to question the validity of the Will; persons, who were entitled
to question the validity of the Will, were only the legal heirs of Smt.
C. Kanaka Lakshmi; the jurisdiction of the Rent Controller and the
Appellate Authority was limited and it could not, as a Civil Court,
decide the dispute relating to title over the property; the
respondent-tenant had suggested to PW.2 (father of the
petitioners-landlords), during cross-examination, that he was not
present at the time of execution of the Will by his mother; PW.2
denied the suggestion and this indicated that, according to the
respondent-tenant, the mother of PW.2, who happened to be the
paternal grandmother of the petitioners-landlords, had executed
the Will, and at the time of execution PW.2 was not present; in his
evidence PW.2 had stated that, by virtue of Ex.P3 Will, the
petitioners had become the owners of the subject property and its
landlords; the respondent-tenant automatically became the tenant
of the petitioners and, in between them, a jural relationship came
into existence; they had every right to ask for the subject property
for their personal bona-fide occupation; the respondent-tenant
had failed to furnish any details of the non-residential
accommodation which he alleged was owned by the petitioners;
even if the first petitioner had no experience in textile business, the
petitioners, being the owners of the subject property, were entitled
to seek eviction of the respondent-tenant from the subject property
on the ground of personal bona-fide requirement; and they were
able to place convincing evidence to establish that their personal
bona-fide requirement was genuine.
The Appellate Court further held that the photographs in
Ex.P7 disclosed the existence of Saheli Suits in the subject
property; the respondent-tenant did not deny the contents of Ex.P7
photograph; according to him, the business of Saheli Suits was
being carried on by him in partnership, and he relied on Ex.R-1 in
this regard; he further stated that he did not sublet it to any one as
alleged; in his evidence in chief-affidavit, the respondent-tenant
had mentioned that he had carried on business under the name
and style of R.S. Enterprises in the subject property; as he had
himself claimed that he was carrying on business in the name and
style of R.S. Enterprises, there was no necessity for him to enter
into a partnership with Saheli Suits; his evidence was self-
contradictory; if really he was in partnership with others, and was
carrying on business under the name and style of Saheli Suits in
the subject property, he would have mentioned the names of his
partners, and would have stated whether the partnership was oral
or in writing; and the contradictory versions in the evidence in
chief of the respondent-tenant indicated that he had sublet the
petition schedule property to a third party i.e. Saheli Suits. The
Appellate Court dismissed the appeal without costs confirming the
eviction order passed, in R.C. No.112 of 2013 dated 15.09.2015, by
the Additional Rent Controller, Secunderabad. The respondent-
tenant was directed to vacate and handover vacant possession of
the subject property to the petitioners-landlords within two months
from the date of the judgment, failing which, the petitioners-
landlords were given liberty to seek his eviction under due process
of law.
Before this Court Sri J. Prabhakar, Learned Counsel
appearing on behalf of Sri J. Venkateswara Reddy, Learned
Counsel for the respondent-tenant, would submit that there is no
jural relationship of landlords and tenant between the petitioners
and the respondent; in the absence of a jural relationship, R.C.
No.112 of 2013 was not maintainable; while a tenant was no doubt
disentitled to dispute the Will more so in rent control proceedings,
it was open to him to show that the Will was not genuine to show
lack of jural relationship between the petitioner and himself as
landlords and tenant; as the claim of respondent-tenant is bona-
fide, the petitioners-landlords should have been relegated to the
remedy of a civil suit, and not to invoke the jurisdiction of the Rent
Controller; there was no attornment of the tenancy by the
respondent; the proviso to Section 10 of the Rent Control Act bars
institution of proceedings for three months from the date of
acquisition; the attornment took place only when the father of the
petitioners-landlords entered into the box, and not earlier when the
Rent Control case was filed; the respondent-tenant was never
informed, at any time before the present rent control proceedings
were instituted, that the petitioners had become the owners of the
subject property; the burden of proving their bona-fide
requirement was on the petitioners-landlords; mere assertion that
they intend starting a readymade garment business is insufficient;
some proof ought to have been adduced to show that their claim is
genuine; the vague statement of PW.1, of opening a garment shop
would not constitute sufficient proof of bona-fide requirement; both
the Courts below erred in holding that there were hawkers outside
the premises; the burden of establishing that the respondent-
tenant had sublet the premises was on the petitioners-landlords;
both the Courts below had misconstrued the lease-deed; the
finding recorded by the Court below were perverse as the burden
was shifted by them on to the tenant; and proceedings not on
record cannot be considered in the present revision petition.
On the other hand Sri Manu, Learned Counsel for the
petitioner-landlords, would submit that the landlady, the original
owner of the subject property, expired in the year 2008; by virtue
of the Will, the petitioners became the owners of the subject
property; it is not open to the tenant to dispute the title of the
landlords in proceedings under the Rent Control Act; there is no
provision under the Rent Control Act contrary to Section 109 of the
Transfer of Property Act (TP Act for short) prescribing attornment
by the tenant as a pre-condition for instituting proceedings for
eviction thereunder; there was no denial by the respondent-tenant,
in his counter, regarding the petitioners-landlords bona-fide
requirement of the subject property; the concurrent finding
recorded by both the Courts below establish that the respondent-
tenant had sublet the premises; and, as these findings are not
perverse, this Court would not interfere therewith in proceedings
under Section 22 of the Rent Control Act.
Section 10 of the Rent Control Act relates to eviction of
tenants and sub-section (1) thereof stipulates that the tenant shall
not be evicted, whether in execution of a decree or otherwise,
except in accordance with the provisions of Sections 10, 12 or 13
of the Act. The proviso thereto stipulates that, where the tenant
denies the title of the landlord, the controller shall decide whether
the denial or claim is bonafide 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, and the Court may pass a decree for eviction on
any of the grounds mentioned in the said Section, notwithstanding
that the Court finds that the claim is unfounded. In the present
case both the Courts below have held that the respondent-tenants
denial of title of the petitioner-landlords was unfounded i.e., it was
not bonafide; and the petitioners were the landlords of the subject
property of which the respondent was the tenant.
In proceedings for eviction of a tenant, the Court will take
only a prima facie decision on the collateral issue whether the
applicant was the landlord. The Court is only required to satisfy
itself that the person seeking eviction is a landlord who has, prima
facie, the right to receive the rent of the property in question. In
order to decide whether denial of the landlords title by the tenant
is bona fide, the Court may have to go into the tenants contention
on the issue, but the Court is not to decide the question of title
finally as it has only to ascertain whether, in the circumstances of
the case, the tenants denial of title of the landlord is bonafide.
(LIC v. India Automobiles & Co. ; Ranbir Singh (Dr) v. Asharfi
Lal ).
The fact that the subject property belongs to Smt. C. Kanaka
Lakshmi has been admitted by the respondent-tenant. What has
been disputed is the petitioners-landlords claim to ownership of
the subject property on the basis of a Will executed in their favour
by Smt. C. Kanakalakshmi. The respondent-tenant contends that,
consequent on the death of Smt. C. Kanaka Lakshmi, it is her son
Sri C. Sriramulu (father of the petitioners) who became the owner
of the subject property; as the present proceedings was instituted
not by him, but by his sons, there is absence of a jural relationship
of landlord and tenant between the sons of Sri C. Sriramulu and
the respondent-tenant; and the petitioners are, therefore, not
entitled to seek his eviction. Emphasis is placed by Sri J.
Prabhakar, Learned Counsel appearing on behalf of the
respondent-tenant, on the fact that, way back in the year 2010, it
was Sri C. Sriramulu who received the money deposited by the
respondent-tenant in the Court. Learned Counsel would rely on
Ranbir Singh (Dr)2 in this regard.
In the petition filed in R.C. No.112 of 2013, the petitioners
stated that they were the absolute owners of the subject property
by virtue of the Will executed in their favour by their grandmother
Smt. C. Kanaka Lakshmi on 10.12.2006, and that Smt. C. Kanaka
Lakshmi expired on 17.2.2008. In the counter filed thereto, the
respondent-tenant asserted that the petitioners were not the
landlords, they had never claimed any rent from him as the
owners, the subject property belonged to Smt. C. Kanaka Lakshmi,
it was her son Sri C. Sriramulu (father of the petitioners) who was
collecting rents from him since a very long time, the relationship
between him and Sri C. Sriramulu was that of landlord and tenant
and the petitioners, who claimed to be the landlords, had to prove
their right over the subject property. While contending that Smt.
C. Kanaka Lakshmi died intestate and was not in a condition to
execute any Will bequeathing the property in favour of the
petitioners, the respondent-tenant also contended that the alleged
Will was not registered, and the mental condition of Smt. C.
Kanakalakshmi had not been verified by any medical practitioner.
Sri C. Sriramulu was the 2nd respondent in R.C. No.179 of
2002 filed by the respondent-tenant, and Smt. C. Kanaka Lakshmi
was the first respondent therein. The order of the Additional Rent
Controller, in R.C. No.179 of 2002 dated 25.07.2003, takes note of
the assertion of Sri C. Sriramulu in cross-examination that it was
Smt. C. Kanaka Lakshmi who was the absolute owner and
landlady of the subject property. The mere fact that, after the
death of Smt. C. Kanaka Lakshmi, Sri C. Sriramulu (i.e the 2nd
respondent in R.C.No.179 of 2002), had collected the rent, which
the respondent-tenant had deposited in Court to the credit of R.C.
No.179 of 2002, would not make him the owner of the property or
the landlord as the amounts so deposited could also have been
collected by him on behalf of the petitioners who became the
landlords of the subject property subsequent to the death of Smt.
C. Kanaka Lakshmi on 17.02.2008.
Clause (iii) of Section 3 of the Rajasthan Premises (Control of
Rent and Eviction) Act, 1950 defines landlord to mean any person
who, for the time being, was receiving or was entitled to receive the
rent of any premises, whether on his own account or as an agent,
trustee, guardian or receiver for any other person or who would so
receive or be entitled to receive the rent, if the premises were let to
a tenant. Clause (vii) of Section 3 of the said Act defined tenant as
the person by whom or on whose account or behalf rent is or, but
for a contract express or implied, would be payable for any
premises to his landlord including the person who is continuing in
its possession after the termination of his tenancy otherwise than
by a decree for eviction passed under the provisions of the Act.
While considering these provisions the Supreme Court, in Ranbir
Singh (Dr)2), observed that the question of title of the property is
not germane for a decision in an eviction suit; where the plaintiff
institutes a suit for eviction of his tenant, based on the
relationship of landlord and tenant, the scope of the suit is limited
in which the question of title cannot be gone into; the plaintiffs
Suit would be dismissed even if he succeeds in proving his title but
fails to establish privity of the contract of tenancy; and in a suit for
eviction the Court has only to decide whether the defendant is the
tenant of the plaintiff or not, though the question of title, if
disputed, may be incidentally gone into in connection with the
main question regarding the relationship between the litigating
parties.
Section 2(vi) of the Rent Control Act defines landlord to
mean the owner of a building and includes a person who is
receiving, or is entitled to receive the rent of a building, whether on
his own account or on behalf of another person or on behalf of
himself and others or as an agent, trustee, executor, administrator,
receiver or guardian or who would so receive the rent or be entitled
to receive the rent, if the building were let out to a tenant. Sri C.
Sriramulu, the son of Smt. C. Kanaka Lakshmi, himself deposed as
PW.2 that his sons, who were the petitioners in R.C. No.112 of
2013, were the absolute owners of the subject property by virtue of
a Will executed in their favour by his mother Smt. C. Kanaka
Lakshmi on 10.12.2006 in a sound state of mind; his mother
expired on 17.02.2008; and, after 17.02.2008, his sons were the
absolute owners and the landlords of the subject property. As has
been rightly observed by both the Courts below, it is not open to
the respondent-tenant to question the genuineness of the Will, or
the title of the petitioners-landlords over the subject property, in
rent control proceedings. Both the Courts below rightly held that
these are all matters extraneous to the proceedings under the Act.
As the petitioners are the owners of the building, having been
bequeathed the property under the Will executed in their favour by
their grandmother Smt. C. Kanaka Lakshmi, they are entitled, as
the landlords, to institute proceedings, for eviction of the
respondent-tenant under the Act, before the Rent Controller. The
contention, that the petitioners were not the landlords and there is
no jural relationship of landlords and tenants between them and
the respondent-tenant, does not therefore merit acceptance.
The contention that there was no attornment of the tenancy
by the respondent-tenant, the attornment took place only when Sri
C. Sriramulu deposed as PW.2 and not before the Rent Control
case was filed, and therefore, R.C.No.112 of 2013 is not
maintainable, is only to be noted to be rejected. To attorn means
to agree to become a tenant of one as the owner, or as a landlord of
a property previously owned or held by another, or to agree to
recognise a new owner of a property or estate and to promise
payment of rent to him. (Estoppel by Representation by Spencer
Bower & Turner-III Edn.). The word "attorn" means 'transfer:
make legal acknowledgment of a new landlord.' "To attorn" merely
means to acknowledge the relationship of a tenant to a new
landlord. "Attornment" by the tenant would mean acceptance of
the new owner as the landlord, and would estop the tenant from
disputing the landlord's title thereafter. Payment or non-payment
to a new landlord does not affect the relationship created by
attornment. "Attornment" also implies continuity of tenancy,
though the landlord might change when title to the property
passes by sale or otherwise. (Mohd. Ilyas v. Mohd. Adil ; Black's
Law Dictionary; Legal Glossary (1988 Edition) issued by the
Ministry of Law & Justice; Concise Oxford Dictionary).
The common law rule that a landlord cannot split the unity
and integrity of the tenancy, so as to result in possession over a
part of the demised premises being recovered from the tenant, does
not apply in India because of Section 109 of the TP Act which
provides a statutory exception to this rule and does away with the
need for a consensual attornment. The attornment is brought
about by operation of law, and does not need the consent of the
tenant. (Nalakath Sainuddin v. Koorikadan Sulaiman ; Mohar
Singh v. Devi Charan ). Section 109 of the TP Act makes it clear
that the landlord can transfer his property in favour of a third
party during the subsistence of the lease, and the consent of the
tenant is not necessary. In the light of Section 109 of the TP Act
attornment automatically follows, on the transfer of property, on
the same terms and conditions on which the transferor entered
into the lease agreement with the tenant unless there is a contract
to the contrary. (Shankaramma v. Mohd. Abdul Hameed ).
Attornment of tenancy is not a pre-condition, under Section
109 of the TP Act, for a landlord to initiate proceedings against his
tenant. Even if no notice is issued by the landlord, after taking a
sale deed in his favour in respect of the subject property from the
original owner, a Suit for eviction is maintainable. (Natarajan v.
Manimegalai ). Attornment automatically follows on the transfer of
property on the same terms and conditions on which the transferor
entered into a lease agreement with the tenant unless there is a
contract to the contrary. (Shankaramma6). The consent of the
tenant is unnecessary to transfer the property in favour of a third
party. Since attornment is not necessary under Section 109 of the
TP Act, the tenant cannot dispute the right of the transferee to
maintain a suit for eviction or to claim rent. A transferee of the
landlord's rights steps into the shoes of the transferor-landlord,
with all the rights and liabilities in respect of the subsisting
tenancy. This Section does not insist that the transfer of the
landlord's rights can take effect only if the tenant attorns.
(Shankaramma6).
There is no specific provision under the Rent Control Act
providing for a situation contrary to Section 109 of the TP Act. The
concept of attornment of tenancy governed by Section 109 of the
TP Act, and the lessor and lessee relationship, are applicable to
proceedings under the Rent Control Act also. (Shankaramma6).
The transferee of a landlord is thus entitled to collect rent as of
right and he is a landlord under the inclusive definition in Section
2(vi) of the Rent Control Act. (Shankaramma6). A transferee of the
landlord's rights steps into the shoes of the transferor-landlord
with all the rights and liabilities in respect of the subsisting
tenancy. The statute does not insist that transfer of the landlord's
rights can take effect only if the tenant attorns. Attornment by the
tenant being unnecessary, to confer validity on the transfer of the
landlord's rights, the tenant cannot dispute the right of the
transferee-landlord to maintain an application for eviction or to
claim rent. (Shankaramma6). As attornment by the respondent-
tenant is unnecessary, the petitioners-landlords were entitled to
institute proceedings under the Rent Control Act for eviction of the
respondent-tenant and the contention, that the Rent Control
proceedings in R.C.No.112 of 2013 was not maintainable, in the
absence of attornment prior to its institution, therefore
necessitates rejection.
Under the proviso to Section 10(3) of the Act, a person who
becomes a landlord after the commencement of the tenancy by an
instrument inter vivos shall not be entitled to apply under this
clause before the expiry of three months from the date on which
the instrument was registered. Reliance placed by Sri J.
Prabhakar on the aforesaid proviso is misplaced as the rent control
proceedings were instituted in the year 2013, more than five years
after the death of Smt. C. Kanakalakshmi in the year 2008, and
nearly seven years after the Will was executed on 10.12.2006 by
Smt. C. Kanakalakshmi in favour of her grandsons i.e., the
petitioner in the rent control proceedings. While the petitioners no
doubt became the landlords after commencement of the tenancy
(as the subject premises was let out to the respondents grand
father by Smt. C. Kanakalakshmi), their title to the property is in
terms of the Will which is not compulsorily registerable. The
proviso to Section 10(3) of the Act has, therefore, no application.
Section 10(3)(a)(iii)(b) of the Rent Control Act enables a
landlord, subject to the provisions of clause (d), to apply to the
Controller for an order directing the tenant to put the landlord in
possession of the building, in case it is a non-residential building,
if the landlord is not capable of occupying a non-residential
building in the city, which is his own or to the possession of which
he is entitled whether under the Act or otherwise for the purpose of
a business which, in the opinion of Controller, the landlord
bonafide proposes to commence.
The specific assertion in the petition filed in R.C.No.112 of
2013, that the first petitioner required the subject property for his
personal requirement i.e to commence a textile readymade
garments business, was not denied in the counter filed by the
respondent-tenant. In his evidence as PW.1, the first petitioner
stated that he needed the subject property for his personal
requirement for commencing a textile readymade garments
business. In cross-examination the first petitioner denied carrying
on printing press business. Sri C. Sreeramulu, in his evidence as
P.W-2, deposed that the subject property was required by the
petitioners to commence a textile and readymade garments
business. Both the Courts below were satisfied that the petitioners
required the subject property to start a readymade garments
business, and their requirement was bonafide. I see no reason to
take a different view from that of the Courts below as the aforesaid
findings are supported by the evidence on record.
Section 10(2) of the Act stipulates that a landlord, who seeks
to evict his tenant, shall apply to the Controller for a direction in
that behalf. Section 10(2)(ii)(a) of the Act provides that if the
controller, after giving the tenant a reasonable opportunity of
showing cause against the application, is satisfied that the tenant
has, without the written consent of the landlord, transferred his
right under the lease or has sub-let the entire building or any
portion thereof if the lease does not confer on him any right to do
so, 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.
In support of their claim that the respondent-tenant had
sublet the premises to Saheli Suits, the petitioners have asserted in
their petition that the respondent-tenant had illegally sublet a
major portion of the ground floor of the subject property to a third
party, the said third party was carrying on business under the
name and style of Saheli Suits, and they came to know that the
respondent-tenant was collecting Rs.750/- per day from the said
third party. They also asserted that the respondent-tenant had
allowed several petty vendors to carry on business, in front of the
subject property, on the steps and on the pail, collecting hefty
license fee per day. While denying having sublet the premises, the
respondent-tenant stated in his counter that Sri C. Kanaka
Lakshmi and Sri C. Sriramulu had permitted him in writing to
carry on any business either in his individual capacity or in
partnership with any third party as partners by executing an
agreement. In his evidence affidavit, the respondent-tenant stated
that he was carrying on business in the subject premises under
the name and style of R.S. Enterprises; both Smt. C. Kanaka
Lakshmi and her son Sri C. Sriramulu had given in writing that
the respondent-tenant could be permitted to enter into a
partnership with Saheli Suits; and as such the allegation, that they
had illegally and without the written consent of the petitioners
sublet the premises, was false.
As has been held by the Appellate Court, the respondent-
tenant has taken contradictory stands. On the one hand, he
contended that Saheli Suits was a shop run by him as its owner,
and on the other he stated that Smt. C. Kanaka Lakshmi and Sri
C. Sriramulu had consented in writing that he could sublet the
subject property, and the consent was given on a stamp paper. He
denied the suggestion that there was no such document, hence he
did not file it before the Court, and he was deposing falsely about
the document. In his evidence affidavit, the respondent-tenant
stated that he was permitted to let out the subject property by
entering into a partnership with Saheli Suits. The fact, however,
remains that it is not even his case that he was authorized to
sublet the premises to a third party.
The fact that the business was being carried on in the
subject premises, under the name and style of Saheli Suits, was
admitted by the respondent-tenant during his cross-examination
as RW.1. On being shown Ex.P7 photographs, and on being asked
whether the persons on the northern side of Ex.P7 Photograph,
were the sub-lessees doing business, RW.1 stated that Saheli Suits
was a shop run by him as its owner; and on Sundays he only
opens his shop, but he did not know who was doing business in
front of his shop on either side. As the respondent-tenant, in his
evidence affidavit, had stated that he was carrying on business in
the name and style of R.S. Enterprises, it is evident that Saheli
Suits was not the name of his shop, and the business being carried
on in the name and style of Saheli Suits, in the subject property,
was by a third party and not the respondent-tenant. No evidence
was adduced by the respondent-tenant to establish that Saheli
Suits was a partnership firm of which he was a partner. The
concurrent findings of fact recorded by both the Courts below, that
the respondent-tenant had sublet the premises to Saheli Suits
without permission of the petitioners-landlords, is based on the
evidence on record, and does not necessitate interference in
revision proceedings under Section 22 of the Act.
Both on the ground of bona-fide requirement, and on the
ground that the respondent-tenant had sublet the premises
without permission of the petitioners-landlords, both the Courts
below were justified in directing his eviction from the subject
premises. The order under revision does not necessitate
interference. The Civil Revision Petition fails and is, accordingly,
dismissed. The miscellaneous petitions pending, if any, shall also
stand dismissed. There shall be no order as to costs.
______________________________
RAMESH RANGANATHAN, J.
Date: 08-07-2016
After the judgment was pronounced, an oral request has
been made by Sri J.Venkateswara Reddy, learned counsel for the
respondent-tenant, that the respondent-tenant be granted four
months time to voluntarily vacate the said premises.
In case, the respondent-tenant files an affidavit of
undertaking before the Court below, within ten days from today,
undertaking to voluntarily and unconditionally vacate the premises
and hand over peaceful possession thereof to the petitioner-
landlords within four months from today, the petitioner-landlords
shall not take coercive steps to evict the respondent-tenant from
the subject premises. It is made clear that, in case an affidavit of
undertaking is not filed within ten days from today, it is open to
the petitioner-landlords to proceed and take action for eviction of
the respondent-tenant from the subject premises in accordance
with law.
______________________________
RAMESH RANGANATHAN, J.
Date: 08-07-2016
Comments
Post a Comment