A K S THIYAGARAJAN Vs. M GOPAL

JUDGEMENT

(1.) THESE two appeals have been preferred from the common judgment and decree of the learned Additional District Judge, Vellore made in A.S.Nos.180 and 181 of 1989 dated 28.2.1990 setting aside the judgment and decree of the learned Subordinate Judge, Arni made in O.S.Nos.82 and 83 of 1987, dated 28.9.1989.

(2.) THE appellants herein filed two suits in O.S.No.82 and 83/87 against the respondent herein seeking delivery of possession of the plaints schedule properties situated in door Nos.235 and 236 Gandhi Market Road, Arni Town respectively with the following averments. THE said schedule mentioned non residential buildings belonged to the plaintiffs. It was a new building. THE construction was completed and informed to the local body in March, 1983. THE first assessment was also made only in April, 1983. Previously there was an old building which was completely demolished and a new building was reconstructed and thus the building was exempted from the purview of the Rent Control Registration from the purview of the Rent Control Registration and the Civil Court alone has got jurisdiction. THE defendant was a tenant under the plaintiffs in respect of the premises situated in door Nos.235 and 236 on a monthly rent of Rs.165 and Rs.44 respectively. THE tenancy was oral and as per the English calendar month. It was a month to month tenancy. THE respondent agreed to vacate as and when demanded. Since the appellants/ plaintiffs required the building in the occupation of the respondent, they called upon the respondent to deliver possession and have also issued a lawyer's notice dated 24.11.1985 during terminating the tenancy. THE same was served on 26.11.1985. THE respondent also sent a reply notice. THE respondent/defendant did not deliver possession as demanded and hence the suit.

(3.) VEHEMENTLY opposing every one of the contentions of the appellant's side, the learned counsel for the respondent would submit that both the suits filed by the appellants were not maintainable since the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act were applicable to the properties in question; that it is an admitted position that the respondent continued his business in door Nos.235 and 236 belonging to the appellants for more than 25 years and thus the tenancy has continued all along; that there was no new construction as alleged by the appellants and hence the suit building was not exempted from the purview of the House Rent Control Act 18 of 1960; that it is pertinent to note that the respondent continued to be a tenant of the suit premises and has been carrying on his business, but he had not vacated the same at any point of time that in order to prove the continuity of tenancy, and possession by the respondent, he filed number of documents before the trial Court; that though the trial Court failed to consider and appreciate the same, the first appellate Court on proper scrutiny and appreciation has accepted the evidence and has rightly dismissed the suits; that it is pertinent to note that the appellants have not stated anywhere in the plaint as to when the respondent was inducted to the suit property, after the construction of the new building or when the construction of the new building was over; that even as per the recitals of Ex.A-2, relied on by the appellants, the respondent was entitled to be in possession of the said premises as a tenant; that at the time when the suit was taken up for trial, even as per the case of the appellants, the building was not exempted from the purview of Act 18 of 1960; that the respondent never vacated and kept his articles in the rice mill belonging to the appellants as contended by them; that it is pertinent to point out that the respondent was put in possession even before the alleged completion of the new building and hence the lower appellate Court was perfectly correct in holding that Sec.30 of the said Act has no application to the present facts of the case; that since the respondent was put in possession of the new building even before its completion, the provisions contained in Sec.30 of the said Act cannot be applied to the suit building; that it is pertinent to note that the respondent has been paying the monthly rental as agreed between the parties continuously and even after the construction of the new building, which would clearly indicate the conduct of the appellants in receiving the rental with an intention to continue the respondent as a tenant, even after the construction of the new building and under the stated circumstances, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable to the building in question and hence the first appellate Court was perfectly correct in dismissing the suits and hence it has got to be sustained.