Sankarlal Jain vs R. Kalavathi Ammal and 2 others

Venkataswami, J.—All these L.P. Appeals arise out of a common judgment of a learned single Judge of this Court rendered in A.S. Nos. 801 and 802 of 1979, 500 of 1978 and 253, 800 and 803 of 1979 dated 27-3-1986, which in turn arose out of a common judgment in O.S. Nos. 9467 of 1972, 9826 of 1975 and 3748 of 1974, on the file of the XII Assistant Judge, City Civil Court, Madras. Brief facts leading to the filing of the said suits may now be noted. All these appeals relate to a single house property bearing Door No.7, Sivagnanam Road, T. Nagar, Madras-17 (hereinafter called the suit property). Originally, the suit property belonged to a joint family consisting of Ramasami Mudaliar and his two sons by names Loganatha Mudaliar and Jayarama Mudaliar. All these joint family members executed a lease deed in respect of the suit property in favour of the appellant herein who is common in all these appeals, on 20-9-1964. The relevant exhibit is Ex.B1. The lease was to commence from 1-12-1964 for a period of four years on a monthly rental of Rs. 140 payable to Loganatha Mudaliar. One of the terms of the lease deed was that the lessors at their cost will put up a construction in the terraced portion corresponding to the ground floor and erect a compound wall and two gates and also instal an electric water pumpset at a cost not exceeding Rs. 12,000 and the work must be completed on or before 30-11-1964. Pursuant to the execution of the lease deed, an advance of Rs. 500 was paid by the lessee, namely, the appellant herein. Yet another clause in the lease deed enabled the lessors requiring funds for the construction as aforesaid and making the lessee to provide the same on condition that any amounts so paid should be repaid completely within a year from 1-12-1964 by the lessors, and in the event of failure to repay the same within the said period, the principal will carry interest at 9% per annum. The lessee/appellant agreed to deliver possession of the property demised to the lessors on the expiry of the lease period.

On 15-12-1970, there was a partition among the joint family members and in that partition, the suit property was allotted to the share of Loganatha Mudaliar. On 4-9-1972, Loganatha Mudaliar executed a sale deed on his behalf and on behalf of his sons in favour of his wife Kalavathi Ammal, 1st respondent in L.P.A. No. 101 of 1987. After the purchase of the property, the said Kalavathi Ammal instituted O.S. No. 9467 of 1972, a suit in ejectment against the appellant herein, on the ground that the suit property was exempt from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter called ''the Act''), under S. 30(i) of the Act, and the lessee/appellant was the tenant in occupation on a monthly rental of Rs. 400 and on that ground also the suit property was exempt from the provisions of the Act under S.30(ii) of the Act. Before filing the suit, the tenancy was terminated by issuing a proper notice on 11-9-1972. In the said suit, the said Kalavathi Ammal also prayed for recovery of rent for the period from 4-9-1972 to 30-9-1972 and for damages for use and occupation from 1-10-1972 to 7-12-1972, the date of the plaint.

Pending O.S. No. 9467 of 1972, Kalavathi Ammal filed O.S. 9826 of 1975 for recovery of a sum of Rs. 14,400 by way of damages for use and occupation for the period from 7-12-1972 to 6-12-1975.

The appellant herein, as defendant in both the suits, resisted the same by filing written statements. The sum and substance of the written statements is as under. That, pursuant to the lease deed (Ex.B1), he had spent a sum of Rs. 27,500 towards the construction on the understanding that Ramasami Mudaliar will reimburse the amount on or before February-March, 1971. Subsequently, the amount of reimbursement was settled between the parties at Rs. 17,000 and agreed to be cleared by 31-3-1972. It was also the case of the lessee/appellant that to secure the said amount of Rs. 17,000, the lessors agreed to deposit the title deed of some other property and further agreed to pay a sum of Rs. 200 per mensem towards interest. The lessee/appellant denied his liability to pay rent at the rate mentioned in the plaint and contended that the rent was to be adjusted towards the interest payable by the lessors. Ultimately it was pleaded that he was not liable to be evicted until the lessors pay the sum of Rs. 17,000. When the above said two suits filed by Kalavathi Ammal were pending, her husband R. Loganatha Mudaliar filed O.S. No. 3748 of 1974 for recovery of a sum of Rs. 6,840 against the appellant on the ground that after the partition on 15-12-1970, he informed the appellant in his letter dated 28-4-1971 about the partition and allotment of property to him in the partition and called upon him to pay the rent at the rate of Rs. 400 per mensum. It was also stated in the plaint that after the sale in favour of Kalavathi Ammal, by letter dated 11-9-1972, he directed the appellant to attorn the tenancy in favour of Kalavathi Ammal and pay the rent thereafter to her. However, the appellant failed to pay the rent due for the period from 1-4-1971 to 4-9-1972 amounting to Rs. 6,840, at the rate of Rs. 400 per mensem and, therefore, the suit. In the written statement, the lessee/appellant, after referring to the written statements filed in the suits filed by Kalavathi Ammal, stated that for the first time on 21-3-1974, Loganatha Mudaliar demanded arrears of rent at the rate of Rs. 400 per mensem, which had been suitably denied by the lessee/appellant by giving a reply on 1-4-1974 stating that there was no agreement to pay rent at Rs. 400 per mensem. In short, the lessee/appellant denied his liability to pay rent as claimed by Loganatha Mudaliar.

On the above pleadings and in view of the fact that the suits related to the same house property, the trial Court tried all the suits jointly, and by a common judgment, found that the appellant herein failed to establish that he had spent any amount for the construction of the house, and his plea that he was entitled to remain in possession of the suit property until the lessors reimbursed the sum of Rs. 17,000/- was not made out. The trial Court further held that the suit property was put up after 1960 and, therefore, will come under S. 30(i) of the Act, and on that ground, the trial Court overruled the plea of the appellant that the civil suit was not maintainable. The trial Court, however, held that the rent payable by the lessee/appellant is only Rs. 140/- per mensem, and on that basis, granted decree in the suit for recovery of rents/damages for use and occupation.

Against the decree in ejectment, passed by the trial Court, the appellant herein preferred A.S. 801 of 1979. Kalavathi Ammal, the plaintiff in O.S. 9467 of 1972, aggrieved by the fixation of rent at Rs. 140/- per mensem, also filed an appeal, namely. A.S. 802 of 1979. Likewise, the said Kalavathi Ammal filed A.S. 253 of 1979 against O.S. 9826 of 1975 in so far as the trial Court granted decree only at the rate of R.140/- per mensem. The appellant-Shankarlal Jain also preferred an appeal against the judgment in O.S. 9826 of 1975, in A S. 500 of 1978 on the ground that he was not liable to pay the rent till he was reimbursed with the amount spent. Similarly, in the suit filed by Loganatha Mudaliar, namely, O.S. 3748 of 1974, aggrieved by the decree on the basis of Rs. 140/- per mensem, Loganatha Mudaliar filed A.S. 803 of 1979, and Shankarlal Jain, the appellant herein filed A.S. 800 of 1979, contending that he was not liable to pay rent at all.

All the above said six appeals came up before Ratnam, J. The learned Judge, on a consideration of the pleadings, evidence and the trial Court''s judgment, held that the civil suit for ejectment is maintainable as the suit property is exempt from the provisions of the Act both under S. 30(i) and 30(ii) of the Act. The learned Judge also found that the rent payable was Rs. 400/- per mensem as claimed by the plaintiffs in the suit, and consequently, he allowed the appeals filed by Kalavathi Ammal and Loganatha Mudaliar, and dismissed the appeals filed by the appellant herein. Aggrieved by the common judgment of the learned Judge, the present L.P. Appeals are preferred.

Mr. N.S. Varadachari, learned counsel appearing for the appellant, submitted that the learned Judge erred in holding that the suit property is exempt from the purview of the Act both under S. 30(i) and 30(ii) of the Act. In support of this contention, the learned counsel placed reliance on a Division Bench judgment of this Court in K. Krishnan v. Munuswami 91 L.W. 454= ILR 1978 (3) Mad 193 and Rattan Arya and Others Vs. State of Tamil Nadu and Another, The learned counsel also submitted that, there is overwhelming evidence to establish the case of the appellant that he has spent amounts towards construction and the lessors have agreed to reimburse a sum of Rs. 17,000 on that account, and the finding to the contrary by the Courts below are totally unsustainable. The learned counsel submits that the evidence on record will show that even before 1960, the suit property was there. Only additions were made to the already existing house property and to that situation S. 30(i) of the Act cannot be invoked. The Judge has committed a factual error in assuming that the appellant/1st defendant in O.S. 9467 of 1972 did not dispute in the reply notice sent by him the statement contained in the notice issued by Kalavathi Ammal, plaintiff in O.S. 9467 of 1972, to the effect that the rent payable to the suit property was Rs.400 per mensem. Factually, the appellant has disputed the same. Consequently, the learned Judge erred in holding that the plaintiff in O.S. 9467 of 1972 (according to the learned counsel) is entitled to the benefit of S. 30(ii) of the Act. In any event, in view of the judgment of the Supreme Court in Rattan Arya and Others Vs. State of Tamil Nadu and Another, holding that S. 30(ii) of the Act is ultra vires the Constitution, the conclusion reached by the learned judge on this point cannot be sustained. The learned counsel also submitted that the learned Judge erred in holding that the plaintiffs in O.S. 9467 of 1972 is also entitled to maintain the civil suit on the ground that the appellant/as a tenant, denied the title of the landlord. On this point, the learned counsel submitted that no such plea was raised in the plaint, nor any issue framed in the suit. Therefore, the learned Judge ought not to have gone into this question and decided against the appellant.

Mr. Rajagopal, learned counsel appearing for the contesting respondent in the appeals submitted that whatever may be the position regarding the point relating to S. 30(ii) of the Act, the judgments of the trial Judge and the learned single Judge of this Court can be sustained under S. 30(i) of the Act as well as on the ground that the appellant persistently denied the title of Kalavathi Animal, thereby disentitling him from taking the point that a civil suit for eviction will not lie. In other words, the learned counsel is not able to satisfactorily answer the contention advanced by the learned counsel for the appellant regarding the point relating to S. 30(ii) of the Act. In support of his contention on the point relating to S. 30(i), learned counsel submitted that the decision relied on by the learned counsel for the appellant, namely, K. Krishnan v. Munuswami 91 L.W. 454= ILR 1978 Mad 193 in fact supports his clients, namely, the respondents. He also placed reliance on a judgment of this Court in Zafrullakhan v. Arunachalam and others 91 L.W. 432= 1976 2.M.L.J. 401

We have carefully considered the rival submissions. We can first dispose of the point relating to S. 30(ii) of the Act.

As rightly contended by the learned counsel for the appellants, the learned Judge was not right in finding that the appellant, bad not disputed either the monthly rent for the premises at Rs.400 on the quantum of rent, namely, Rs.6,840 for the period in question, but he had pleaded an agreement to adjust the same towards interest at the rate of Rs. 200 per month on a sum of Rs.17,000 due to him. This appears to be factually incorrect. A perusal of Ex.B11 shows that factually the appellant has denied the liability. In paragraph 3 of the reply notice, sent to Loganathan, respondent in L.P.A. Nos.103 and 106 of 1987, the appellant has stated as follows:--

The question of paying you rent of Rs.6,840/- will not arise since as aforesaid this sum has been adjusted and it was agreed then as in April 1971 you are to pay me a sum of Rs.17,000/- or give alternatively security to me, for the payment of the sum of Rs.17,000/- and also pay every month interest on the said sum of Rs.17,000/- at the rate of Rs.200/- per month. It was also specifically agreed at that time that if the alternative security is not given I am not liable to pay any rent till the amount of Rs.17,000/- is paid. This is for your information.

Earlier, at the opening, he mentions about the reply notice sent by him to the notice issued on behalf of the wife of Loganathan Mudaliar, namely, Kalavathi Ammal. A copy of that reply notice was also enclosed along with the reply sent to the said K. Loganatha Mudaliar. In the reply sent to Kalavathi Ammal''s lawyer through the appellant''s lawyer, he has categorically denied his liability to pay the rent at Rs.400 per mensem. The statement reads as follows:--

It is absolutely false to say that the property was let out to my client on a monthly rent of Rs.400/-. Actually, under the lease deed, the lease is for a sum of Rs.140/- per month.

Therefore, the learned counsel for the appellant is right in his contention that the learned Judge was not right in fixing the rent at Rs.400 per month on the ground that the appellant failed to deny his liability to pay the monthly rent at Rs.400 in the reply notice sent by him to Loganatha Mudaliar. Learned counsel for the respondent is not in a position to point out any other document to show that the appellant is liable to pay Rs.400 per mensem by way of rent. In these circumstances, we hold that the finding of the trial Court that the rent payable by the tenant is only at Rs.140 per mensem is acceptable. Likewise, the learned counsel for the appellant is not in a position to establish the alleged oral arrangement between the parties and as a result of which the appellant is entitled to recover a sum of Rs.17, 000 from the respondent or his/her predecessor-in-interest. On this point, we rind that the finding of the trial Court, confirmed by the learned single Judge of this Court is correct. In any event, as contended by the learned counsel for the appellant that in view of the judgment of the Supreme Court in Rattan Arya and Others Vs. State of Tamil Nadu and Another, , the benefit of S. 30(ii) of the Act is not available to the respondent-Kalavathi Ammal. Therefore, the conclusion of the learned Judge that the civil suit is maintainable without resorting to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act even under S. 30(ii) of the Act cannot be sustained.

The question whether there was denial of title by the appellant and as a result of which he is disabled from contending that the suit is not maintainable can now be considered. No doubt, and it is true that no issue was framed by the trial Court on this point and in fact no averment was made in the plaint. But the learned Judge, taking note of the fact that in the reply notice as well as in the oral evidence the appellant persisted in denying the title of Kalavathi Ammal, has taken the view that that circumstance is sufficient to hold that a civil suit is maintainable without resorting to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act In fact, this is what the learned Judge has observed in paragraph 12 of the judgment--

...Besides, the lessee Shankaralal Jain also, in paragraph 7 of the written statement in O.S.No. 9467/72 disputed the tile of Kalavathi Ammal to the property. Even prior to the stand so taken by the lessee Shankaralal Jain in his written statement, under Exhibit B-3 dated 21-9-1972 (same as Exhibit B-11) the lessee had disputed the title of Kalavathi Ammal to the property. Indeed, even in the course of the trial of the suit, the lessee Shankarlal Jain persisted in his denial of the title of Kalavathi Ammal. It is this that necessitated the trial court to go into the question whether Kalavathi Ammal had title to the property and record a finding to the effect that the contention urged by the lessee Shankarlal Jain that the sale is suspicious cannot be accepted in the face of the clear recitals and the evidence of P.W.1 and P.W.2. It is thus seen that prior to the suit and in the written statement and also in the course of trial in O.S. No. 9467 of 1972, the Lessee Shankarlal Jain had persisted in denying the title of Kalavathi Ammal, though Loganatha Mudaliar put him on notice of the sale by him in favour of Kalavathi Ammal of the property in question. The lessee Shankarlal Jain cannot, therefore, be heard to say that the question of denial of title did not arise at all in the proceedings. Considered in the light of the stand taken by the lessee Shankarlal Jain referred to already, it is at once apparent that his intention was not to accept the title of Kalavathi Ammal to the property and remain in possession as a tenant, but had repudiated her title to the building. That would be sufficient to conclude that the lessee Shankarlal Jain had wilfully and without any justification denied the title of Kalavathi Ammal. In that event, as laid down in Rajammal v. A. Athmaramalu 1978 T.L.N.J. 272 the lessor is not obliged to invoke the jurisdiction of the authorities constituted under the Act, but can resort to a civil Court for appropriate reliefs. Thus, by virtue of the exemption under S. 30 of the Act as well as the non-availability of the protection under the Act to the lessee Sankarlal Jain in view of his denial of title of Kalavathi Ammal, the suit in ejectment was properly laid, entertained and decreed. No exception can, therefore, be taken to the maintainability of the suit.

With respect, we agree with the view taken by the learned Judge in this regard. There is no justification either in law or in equity for the appellant to deny the title of Kalavathi Ammal notwithstanding the notice issued by Kalavathi Ammal and her husband. Further, even after examination of P.W.1 and production of title deed, the denial of title by the appellant in his evidence cannot at all be justified.

Now, coming to the question of applicability of S 30(i) of the Act, the learned counsel for the appellant, as pointed out earlier, placing reliance on a Division Bench judgment of this Court in K. Krishnan v. Munuswami 91 L.W. 454 submitted that the view taken by the learned single Judge following a judgment by a learned single judge of this Court in Abdul Azea & Sons v. Mavalirzian 1977 T.L.N J. 60 cannot be sustained. It is true that the learned Judge followed the view taken by Ismail, J. (as he then was) in Abdul Azed & Sons v. Mavalirsian 1977 T.L.N J. 60 (supra) to the effect that the removal of the tiled roofing retaining the existing walls and putting up other constructions would attract the provision of S. 30(i) of the Act as new construction. However, a similar view taken by Kailasam, J. (as he then was) in Ramachandran v. Kasim Khalooli 1965 1 M.L.J. 78 did not find favour with the Division Bench in the judgment reported in K. Krishnan v. Munuswami 91 L.W. 454. The view taken by the Division Bench is as follows:-

......But when one talks of demolition of a building as contemplated in S. 14(1)(b), it is difficult to assume that the change of a roof will amount to demolition of the building.

x x x

The expression "erecting a new building on the same site" adds to the effect of the word demolition, because the very words new building would indicate that something different from what was in existence on the property, or on the site to be more accurate, must be brought into being after demolition.

One thing that is to be noted is, that the Division Bench was considering a case arising under S. 14(1)(b), of the Act and while construing the scope of S. 14(1) (b), the learned Judges took note of the language employed in S. 16(2) of the Act as well. It may also be mentioned that S. 16(2) of the Act is more or less similarly worded like that of S. 30(i) of the Act. Though the learned Judges of the Division Bench observed as above, they have further held, while approving a decision of Ramaprasada Rao J., (as he then was) in N. Pattabiraman Vs. The Accommodation Controller and Another, as follows:-

The decision of Ramaprasada Rao, J., in N. Pattabiraman Vs. The Accommodation Controller and Another, was then brought to our notice. If, we may say so with great respect, on the facts found by the learned Judge, the decision is unassailable. The learned Judge found on the fact of the case that the operations contemplated by the landlord satisfied the requirements of S. 14(1)(b) of the Act. We shall extract the relevant passage as under.

As already stated the plan produced clearly makes out the situation that the first floor is sought to be interfered with materially and in many respects by the petitioner when he reconstructs the building in accordance with the sanctioned plan. The cubical content of enclosed space is increased, or altered, the walls are changed and above all the roof of the premises is removed and substituted by another. In a case where the roof of a premises is removed and substituted and this is followed up by a variation of the space content of the quondam building, then undoubtedly the entire process involves not only demolition, but also reconstruction.

The learned Judge adverting to this view, later on at page 329 observed as follows:

I have already expressed the view that the work to be undertaken by the petitioner is effectively to change the entire phase of the building, its cubical content and its size. More than anything else the roof is sought to be removed and substituted, by another of a different variety altogether.

The learned Judge then referred to the decision in Ramachandran v. Kasim Khalecli 1965 1 M.L.J. 78 and quoted the following judgment:

The contention of the learned counsel that the demolition intended should be total, is not supported by any authority, In this case, the roof of the premises that is in the occupation of the petitioner is to be demolished and a staircase put, retaining only the walls. This in my opinion, would amount to demolition.

The learned Judge then proceeded to observe as follows:-

A fortiori in a case like the one before me where a material change is being effected in the structure and the identity and content of the building, the work undertaken by the petitioner as disclosed in the sanctioned plan would certainly amount to demolition and reconstruction of the building.

All that we wish to say on this aspect of the matter regarding the decision in N. Pattabiraman Vs. The Accommodation Controller and Another, is that there appears to be somewhat an over emphasis on the change of the roof by using the expression above all in one place and more than anything else in another place. But as we said we may repeat with respect that on the facts found by the learned Judge and by the authorities, there was demolition and construction of a new building because the building let was only a

Particular floor, where vast changes had to be made which completely destroyed the old structure on the first floor and brought into being an entirely new building, so sub-S. 14(1)(b) was clearly applicable.

From the above extract, it is seen that if there is substantial reconstruction resulting in expansion in the cubical content of enclosed space, then it can be said that there is reconstruction. In this case, on facts, the learned Judge, on an appreciation of the evidence, has held as follows:-

....The benefit of the availability of the exemption under S. 30(i) of the Act does not appear to be confined only to cases where a construction is put up digging into the bowels of the earth and raising a superstructure. The addition to existing structure would also be construction, though by such additions or alterations, the original identity of the building is lost. On the language employed in S. 30(i) of the Act, it is difficult to interpret the word ''construction'' occurring therein as being restricted or confined only to a new construction. That would in my view, take in construction, which is put up to an existing construction altering the original identity of the building. It is not in dispute that the building which came into existence after 24.9.1960 was not the same as before, for, substantial additions and alterations have been made affecting the identity of the building, floor area and its cubical content as well. Under those circumstances, on the facts of this case, I am of the view that a construction totally different in form and structure and also in identity and area and in cubical content had come into existence after 24.9.1960 and that would be sufficient to attract the exemption under S. 30(1) of the Act.

On a perusal of the oral evidence, we also find that the appellant himself has admitted that originally there was a small tiled building which has been subsequently changed into a pucca terraced building with additions both vertically and horizontally. There is ample evidence to show, as found by the learned Judge, that the construction was completed only after 24.9.1960 and from the lease deed, it can be gathered that the completion was notified to the Corporation. Taking note of this, we do not think there is any good case for differing from the view taken by the learned Judge on this point as well. Even otherwise, we have already taken the view on the point of denial of title by the appellant that the civil suit is maintainable without resorting to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. No other point was argued before us to challenge the findings of the Courts below. In view of our finding that the rent payable by the appellant was only Rs. 140/- per mensem and also in view of our finding that the appellant has not established his case of oral arrangement as a result of which he is entitled to get back a sum of Rs.17,000/- from the owner of the suit property, his appeals are to be allowed only in party as regards the rent portion alone and that portion of the appeal against the decree for ejectment and delivery of vacant possession, is dismissed. In other words, in the place of the judgment and decree in the first appeals, the judgment and decrees of the trial Court are restored. The parties will bear their own costs in these appeals.