Balasubramanya Gupta v. Saraswathi Ammal

The first defendant in O.S No. 580/83 on the file of the District Munsif Court, Tindivanam is the appellant.

2. The deceased first respondent/plaintiff had filed the suit, for declaration, that she is the tenant of the suit premises and for permanent injunction. The suit property originally belonged to one Krishnamoorthi Chettiar, who had rented the property to the plaintiff's husband Govindasami Chettiar. After the demise of Govindasami Chettiar, the plaintiff claimed, that she has been in possession and enjoyment of the suit property, as tenant. It was the further assertion of the plaintiff, that the first defendant having failed in his attempt to evict the tenant from the premises, was attempting to dispossess the plaintiff, by illegal method. Thus alleging as said above, the suit came to be filed.

3. The first defendant/appellant, disputing the tenancy right claimed by the plaintiff, as well as her possession on the date of filing of the suit, opposed the case of the plaintiff alleging, that the plaintiff was not doing any business in the suit premises, as tenant and that she had surrendered possession of the same to him and thereafter, the suit property is in the possession of the second respondent, as tenant. Thus, disputing the tenancy right claimed by the plaintiff, as well as the possession, the rights claimed by the plaintiff were disputed.

4. The learned District Munsif framing issues, took the case for trial. Buttressing the plea and counter plea, documents have been marked, in addition to examination of some witnesses. The learned Additional District Munsif, Tindivanam, while evaluating the materials placed before him, upon appreciation also, had come to the conclusion, that the plaintiff was not in possession of the suit property, as tenant, on the date of filing of the suit, that the plaintiff is trying to give protection under her name to P.W.2, which is not possible. In this view of the matter, the suit was dismissed on 26.4.1990, which came under attack before the Sub Court, Villupuram in A.S No. 87/90.

5. The learned Subordinate Judge, Villupuram, by going through the decision rendered by the trial Court, as well as elaborately considering the admitted relationship between the parties, as well as the plea of surrender projected by the first defendant, came to the conclusion, that the plaintiff alone was in possession and enjoyment of the suit property on the date of filing of the suit as tenant and that she was assisted by P.W.2, being the close relation. Taking contra view, unable to concur with the findings rendered by the trial Court, the learned Additional Subordinate Judge allowed the appeal, thereby upsetting the finding of the learned District Munsif, then granting a decree as prayed for, with costs, which is challenged in this appeal.

6. This Court, while admitting the second appeal, had formulated the following substantial questions of law:

“Whether in law the lower appellate Court has not erred in granting injunction after holding that plaintiff should be deemed to be in possession through one Radhakrishnan overlooking that when the third party is in wrongful possession, such possession cannot be protected by assistance of Court against the lawful owner by an order of injunction, in favour of the plaintiff, as per the dictum in 1962 1 M.L.J 383?”

7. Heard the learned counsel for the appellant, Mrs. Hema Sampath and the learned counsel for the respondents, Mr. T.R Rajaraman.

8. The first respondent in this appeal, who had filed the suit, pending this appeal, died, resulting an application by the appellant under Order XXII Rule 10 C.P.C, to implead one Radhakrishnan, as the third respondent. That petition was allowed on 2.9.2003, without any objection. As seen from the affidavit filed by the appellant, it appears Radhakrishnan had claimed devolution of interest in the properties of Saraswathy Ammal, including the lease hold right also, under a Will said to have been executed by her on 10.8.1996 The appellant, on the basis of the information supplied by the counsel for the first respondent, of course not admitting the genuineness of the Will, had filed C.M.P No. 7756/2003, to implead Radhakrishnan, to represent the first respondent, which was accepted by this Court. Thus it is seen, at present, the original plaintiff viz., Saraswathi Ammal, who had claimed tenancy right over the suit property, is not alive and her interest is represented by Radhakrishnan, who is R3 in this appeal.

9. The owner of the suit property, made an attempt to evict the tenant in the year 1963 and from the said date onwards, i.e for the past four decades, it seems, the owner is attempting to take possession of the property, which has been thwarted. After the disposal of the previous litigations, the landlord, on the basis of a document said to have been executed by Saraswathiammal, labelling the same as surrender deed, attempted to dispossess the plaintiff, by obtaining an order of eviction, against the second defendant in the suit, as if he is in occupation of the premises as tenant. When the plaintiff came to know about the attempt of the landlord, she had filed the suit, seeking not only declaration, but also injunction, as said above. The surrender deed, said to have been executed by Saraswathi Ammal, was exhibited as Ex.B1 In view of Ex.B1 and in view of other connected proceedings between the parties, it could be said undoubtedly, that Saraswathiammal was the tenant on the date of filing of the suit. To negative that right of the plaintiff as tenant, the landlord has to prove that she had surrendered possession of the suit property, in pursuance of Ex.B1, and thereafter she ceased to be a tenant.

10. The learned trial Judge, without considering the effect of Ex.B1 and the possession said to have been taken by the landlord, only considering the fact that P.W.2 is now carrying on the business in the premises, refused to grant injunction, negativing the declaration sought for also. The first appellate Court, considering the fact that Ex.B1 was not proved, satisfactorily, and the possession said to have been taken by the landlord is not proved satisfactorily, came to the conclusion, that on the date of filing of the suit, Saraswathi Ammal alone was the tenant and the business was conducted in her name by P.W.2 Thus concluding, a decree has been granted as said above, in which I am unable to find any error, warranting my interference.

11. As said above, since the trial Court had failed to give a finding regarding Ex.B1, the first appellate Court had taken the pain of going through the documents, analysed the evidence, weighed the probabilities, which brought to surface the alleged surrender, pleaded by the landlord, must be false, for which the approval of this Court is necessary. The learned counsel for the appellant, probably realising that the said finding cannot be assailed, on any ground, in fact, has not urged the surrender pleaded by the landlord. Therefore, it is to be held that the surrender pleaded by the first defendant/appellant is false, whereas only Saraswathi Animal alone continued to be in possession of the suit property and that possession must be that of a tenant on the date of filing of the suit. The only point urged by the learned counsel for the appellant was that the 3rd respondent by name Radhakrishnan cannot be construed as tenant, since the original tenant died and therefore, on the death of the original tenant, the tenancy had come to an end, in which case, neither the suit for declaration nor the injunction could be maintained.

12. On the other hand, the learned counsel for the third respondent submitted, that he being the legal representative of the tenant, even as per the definition of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter called ‘the Act’) the legal representative comes within the definition of the Tenant and therefore, whatever the right declared in favour of Saraswathi Animal by the first appellate Court, should be made available to the third respondent also.

13. Admittedly, Mr. Radhakrishnan, the third respondent herein, is not the legal heir of Saraswathy Ammal. In order to represent Saraswathi Ammal as legal representative, he was brought on record. Therefore, we have to see whether, such a person could claim tenancy right and seek injunction against the true owner. The learned counsel for the appellant submitted, that there was no plea in the plaint that Radhakrishnan was in continuous association with her, for the purpose of carrying on business of the tenant and in the absence of such plea, later letting in evidence, the legal representative cannot claim tenancy right, placing reliance upon a decision of this Court in Haji Abdullah Sait v. Sanjeevi Rao (1979 2 MLJ 413 = 92 L.W 611).

14. In the case involved in the above decision, in a non residential building, the tenant was carrying on a hotel business and died on 15th January 1968. On that date, it seems, there was no other person, who could come within the definition of the tenant, as defined under Section 2(8) of the Act. Subsequently, it seems i.e after the statutory tenancy came to an end, his relatives had claimed tenancy right. In the absence of any evidence, that they were in continuous association with the tenant, for the purpose of carrying on the business of the tenant up to the death of the tenant, a Division Bench of this Court has held that defendants 2 to 10 in that case cannot be said to be the tenants, entitled to the protection of the Act against eviction, which ratio may not be applicable to the present case, in view of the fact there are materials to conclude that the 3rd respondent was assisting the tenant, carrying on business in the demised premises, till the death of Sarawathy Ammal.

15. Section 2(8)(1) of the Act defines the Tenant regarding a non residential building as,

““tenant” means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who-

(i) ****

(ii) in the case of a non-residential building, had been living with the tenant in the building as a member ot the tenant's family up to the death of the tenant.”

From the above definition, it is clear, if a case has been made out, that the legal representative of the deceased had been in continuous association with the tenant, for the purpose of carrying on the business, in the case of non residential building, then he may be recognised as a ‘tenant’. It is not necessary that the person, who had been in association with the tenant, must be the legal heir of the deceased tenant. It is suffice, if he had been in continuous association, then coming within the meaning of legal representative, which cannot be equated with legal heirs.

16. This Court in Arulroyer, T.S v. Lajja Bai (1996 2 L.W 645) has held as follows:

“It is not necessary that the legal representative should only be a legal heir. A person who does not fall under the first limb of the definition of tenant which enumerates the categories of persons can also claim to be a tenant, provided he is a legal representative who had been in continuous association with the original tenant for the purpose of carrying on business up to the date of death of the original tenant and continues to carry on such buisness thereafter.”

The third respondent, being the brother's son of plaintiff's husband's brother, claims that he is a son, in a way, to Saraswathy Ammal. The trial Court has given a clear finding that P.W.2 is carrying on business in the premises. The first appellate Court has given a finding that P.W.2 was carrying on business only on behalf of Saraswathy Ammal. Saraswathy Ammal being a old lady, who had no other male assistance, appears to have taken the help of the close relative viz., P.W.2 and there is nothing strange in it. P.Ws.1 & 2 have also categorically deposed about the carrying on business by P.W.2, in association with the original tenant and not independently. Because, Saraswathy Ammal became old and she has not participated in the day-to-day affairs of the business, that does not mean that she ceased to be a tenant or P.W.2 was doing the business independently, not recognizing the right of Saraswathy. Therefore, as rightly held by the first appellate Court, it should be held, that P.W.2 was associated with the original tenant, for the purpose of carrying on business and that is why it appears, Saraswathi Ammal had executed a Will in his favour, whether it is true or not, which cannot be decided in this case. Thus, P.W.2 comes within the definition of ‘tenant’ as contemplated under Section 2(8)(ii) of the Act and therefore, in my considered opinion, he is entitled to the protection given under the Act and he cannot be thrown out, as claimed by the appellant, construing that the tenancy in favour of the original tenant came to an end and therefore, R3 is not entitled to any protection. It is not the case of parties that P.W.2 (R3) is a trespasser or his right was not recognized by the original tenant. Admittedly, even now, P.W.2 alone is in continuous possession of the suit property and that continuance is in continuance of the original tenancy being in association with the original tenant, which should have the protection of the Act. Under the above facts and circumstances of the case, I am unable to agree with the submission of the learned counsel for the appellant, that R3 is not entitled to any protection under law and the tenancy has come to an end on the death of Saraswathy Ammal or P.W.2 is not entitled to any protection under law. Except the above said point, no other point has been urged before me and this point also failed to survive and the result is the appeal is devoid of merits and is liable to be dismissed.

In the result, the appeal is dismissed without costs.

VCJ/VCS