V. Vatsala v. Official Assignee Of Madras, Representing The Estate Of S.V Namasivayam.

The question that arises in this Civil Revision Petition centres round a legal contention and a factual contention. The petitioner is the tenant who came to occupy a land bearing municipal door No. 109.D/6-A, Mount Road, Madras. She was admittedly inducted into possession of such land along with the machinery embedded thereto by one Namasivayam. This was under the lease deed Ex.P-1, d. 14th January, 1972. Everything went on alright until one Thandavan laid title to the machinery demised by Namasivayam. The leasehold interest as recognised by the tenant and which vested in Namasivayam was undisturbed till about July, 1972. On 27th July, 1972, it appears that one Jagadisan claiming a paramount title to the property in question as the purchaser of door No. 109-D/6. Mount Road, called upon the tenant-petitioner to attorn the tenancy to him under threat of civil and criminal proceedings if his demand was not conceded to. It appears that the tenant, afraid of such threats extended by Jagadisan, attorned tenancy to him, notwithstanding the fact that she was inducted into the property and the machinery was put into her custody by Namasivayam, and thereafter she was paying the rents to Jagadisan without reference to Namasivayam. She brought to the notice of Namasivayam the above threats of Jagadisan and sought for a return of the advance which she paid under Ex.P-1 at the time when Namasivayam let her into possession of the suit property, door No. 109.D-6-A, including the machinery thereon. There was no reply by Namasivayam. Thereafter, it appears that Namasivayam terminated the tenancy of the petitioner under Ex.R-6 and called upon the petitioner to vacate. The petitioner replied to Namasivayam stating that it was Jagadisan who is entitled to the property and since she bad already attorned the tenancy in favour of Jagadisan, she was not obliged to comply with the request of termination of tenancy or with the demand for vacating of the premises as claimed by Namasivayam in Ex.R-6. By that time, Namasivayam became an insolvent and his assets vested in the Official Assignee, under the Presidency Towns Insolvency Act, and the Official Assignee for and on behalf of the body of creditors continued the action proposed by Namasivayam under Ex.R-6 and instituted the present petition under S. 10(2)(i) and 10(2)(iii) of Tamil Nadu Act 18 of 1960. The Official Assignee's case was that there was wilful default in the payment of the rents due and payable by the tenant-petitioner in respect of her occupation of premises No. 109.D/6-A and she was liable to be evicted since she set up a hostile title in some third parties in respect of the premises in question.

2. The defence was that the property belonged to Jagadisan and the Official Assignee as the successor-in-interest and the representative of the body of creditors of Namasivayam cannot institute the present action and seek for eviction.

3. In the course of the hearing of the Rent Control Petition, Jagadisan was examined. He was not made party to these proceedings. The petitioner did not seek for impleading of Jagadisan as a party, notwithstanding the fact that she was shedding as much copious tears which were probably crocodile tears for Jagadisan. She, however, chose to examine him on her side. Naturally, Jagadisan relying upon the sale deed Ex.R-10, under which he is said to have purchased the property claimed that Namasivayam at no time had any interest on the suit land in question and supported the claim of the petitioner to continue in occupation of the suit premises as his own tenant. The Rent Controller accepted the defence of the tenant as a bona fide one and therefore, dismissed the petition for eviction filed by the Official Assignee.

4. On appeal before the Appellate Authority, the latter came to a different conclusion and granted the eviction. It is as against the grant made by the Appellate Authority that the present revision petition has been filed.

5. The learned counsel for the petitioner strenuously contended that the defence of the petitioner-tenant was bona fide within the meaning of the second proviso to S. 10(1) of Act 18 of 1960 (Tamil Nadu Buildings (Lease and Rent Control) Act of 1960) and that the evidence of Jagadisan has established factually beyond doubt that the suit premises did never belong to Namasivayam and, therefore, the Official Assignee as his successor-in-interest cannot claim any interest thereby.

6. Before going into the merits whether Jagadisan could be said to have any interest at any time in the property in question, let us consider whether the defence of the tenant in question could be said to be one which is available to such tenants under the second Proviso to S. 10(1). Jus tertii is a well-known principle in law wherein a person whose rights are sought to be interfered with by another takes umbrage under the rights said to be vetted in a third party other than the party opposing him and in certain circumstances, the defence of jus tertii is available to the affected party. But in a case like the one under consideration wherein the Act itself is to protect the tenants from unlawful and unreasonable eviction and is not intended to protect the interests of persons other than the tenants, whether the intendment of the Legislature in accordance with the language of second proviso to S. 10(1) was and is that the denial of title contemplated in the second proviso would also include the invocation of the doctrine of jus tertii. S. 10(1) provides that tenant shall not be evicted whether in execution of a decrec or otherwise except in accordance with the provisions of this Section or Ss. 14 to 16, provided that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a deeree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds such denial does not involve forfeiture of the lease or that the claim is unfounded.

7. It, therefore, follows that if the finding of the Rent Controller is that the denial is not bona fide, then the Controller would be entitled to pass an order for eviction. The question that arises in the instant case is whether such a denial as contemplated under the second proviso to S. 10(1) has arisen. The proviso is very clear when it says that the tenant should deny the title of the landlord. It does not say that the tenant can vest the title to the property in his occupation in third parties. This is the concept which is inherent in the principle of jus tertii. It is only in cases where the tenant while opposing an application for eviction under the provisions of Act 18 of 1960, sets up title in himself or herself the second proviso would come into operation and it is in that context alone the Rent Controller would have jurisdiction to find whether the denial of title of the landlord and setting up of such title in himself or herself by the tenant is bona fide or not. I am of the view that it is not open to the tenant to plead, taking advantage of the plain language of the second proviso to S. 10(1), that the denial as regards the title of the landlord might even mean and include the vesting of the title to the property in a third party. On the other hand, I am of the view that such denial of title of the landlord would be the resultant of a claiming of title in the property by the tenant herself or himself and not by setting up title in a third party. That it not the case here. What it attempted by the tenant is that one Jagadisan claims title to the property having purchased premises No. 109-D/6 under Ex.R-6 and that as he is threatening her civilly and criminally to take proceedings against her if she fails to attorn to him, she was compelled to so attorn the tenancy in favour of Jagadisan ignoring Namasivayam who admittedly inducted her into possession of the property in January, 1972 under a written instrument of lease. Excepting for the fact that Jagadisan tried to help the tenant-petitioner by getting into the box and pleading hit title to the property, he is said to have not even corresponded with the Official Assignee who is a Public Officer functioning under the Statute about his alleged title in the suit property. In fact, I querried the learned counsel appearing for the Official Assignee whether Jagadisan at any time wrote to the office of the Official Assignee claiming such interest either as a whole or in part over the property in question; but the answer was in the negative. Therefore, the part played by Jagadisan in the proceedings was very limited, in the sense that he only assisted the petitioner-tenant and came forward as her witness and produced the deed and said that he was the owner of the property bearing door No. 109-D/6. As would be seen hereafter, there is a considerable doubt whether the property bearing municipal door No. 109-D/6 is the same as the property bearing door No. 109-D/6. Even apart from this the title of Jagadisan cannot be adjudicated finally in a summary proceeding arising under Act 18 of 1960. The tenant petitioner can only set up the title in herself or in the alternative claim rights of permanent tenancy as a result of which she can deny the title of the landlord to the property in question. But, in the absence of setting up of title in herself or in the alternative setting up of a claim of right of permanent tenancy in the property in question, the tenant cannot, in my view, invoke the doctrine of jus tertii and vest title in third parties and yet plead that she is bona fide denying the title of the landlord to the property in question. In my view, therefore, the Appellate Authority was right when it said that the denial by the tenant, in the circumstances of the case, is not a bona fide one.

8. Even on the merits, there is a doubt whether the property purchased by Jagadisan under Ex. R-10 which obviously relates to premises bearing door No. 109.D/6 is the same as the suit property bearing municipal door No. 109.D/6-A. It is for the parties to establish in appropriate litigation before the appropriate Court as to who owns which property. It is not, however, open to the petitioner as tenant to deny the title of a Public Officer who succeeded Namasivayam and who let in the petitioner into possession admittedly in the year 1972. There being no other error of jurisdiction or any irregularity in the order, the Civil Revision Petition is dismissed.

9. But, in view of the fact that the petitioner has been driven from pillar to post to fight this litigation for Jagadisan in order to subserve her own interests I feel that she should be given at least six months' time to vacate the premises. Accordingly, the petitioner is granted six months time to vacate.

VCS