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Syed Ahmed Vs. Salima Bi and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 270 of 1980
Judge
Reported inAIR1982Mad44
ActsCode of Civil Procedure (CPC), 1908 - Sections 144; Transfer of Property Act, 1882 - Sections 111
AppellantSyed Ahmed
RespondentSalima Bi and ors.
Appellant AdvocateC. Peter Francis, Adv.
Respondent AdvocateT.R. Mani and ;R. Shanmughan, Advs.
Cases ReferredDasari Polayya Dora v. Onarasi Anantha Patro
Excerpt:
.....amongst was that he being inducted by m as a tenant and continued to be so at the time of auction sale his possession as a tenant cannot be interfered under the guise of restitution. the respondent contended that inasmuch as the petitioner purchased the property his tenancy rights could not subsist by the application of the doctrine of merger.; the question that arose for consideration was whether the petitioner is entitled to resist the restitution proceedings on the ground that he is entitled to tenancy rights.; held, if the interest of the lessor and the interest of the lessee had vested in the same person, viz., the petitioner, then it is obvious that the character of his possession changed from that of a lessee into that of an owner of the property and there would be, under those..........set aside the sale, the right of the vendor of the petitioner to dispose of his interest in the property was available to him and the sale deed between him and the petitioner dt. 30-12-1964. remained wholly operative as between vendor and purchaser and no part of that sale deed "had been rendered ineffective or inoperative, it is, therefore, obvious that the petitioner cannot claim that as a result of the adjudication in the proceedings set aside the sale, sale-deed between him and the twelfth respondent was rendered invalid in any manner because as a document of sale between them, it had remained wholly operative and in the 'absence of any specific reservation of his rights as a lessee in a manner known to law, he cannot claim such rights. under these, circumstances; the petitioner.....
Judgment:
1. The 3rd respondent in R. E. A. No. 220 of 1975 in R. E. P. No. 429 of 1963 in O. S. No. 733 of 1956, Principal District Munsif's Court, Tirupattur, is the petitioner in this civil revision petition. The properties belonged to deceased A. Mohamed Zackria Sahib, whose widow, sons and daughters figure as respondents 1 to 10 in this civil revision petition. Mohamed Zackria executed a mortgage in favour of one Margabandu, the father of 11th respondent herein and a suit in O. S. No. 733 of 1956 was instituted for enforcing the mortgage. On 17-2-1957, a preliminary decree was passed which was later followed up by a final decree on 30-6-1960. In execution thereof, the properties were brought to sale and the 12th respondent who is stated to be a close relation of the l1th respondent, purchased the properties in court auction on 18-3-1964. The sale was confirmed on 29-5-1964 and the 12th respondent also took delivery through court on 29-7-l964. Thereafter, Mohamed Zackria, the original owner of the properties filed a petition R. E. A. No. 282 of 1965 on 24-12-1964 u/s. 47 of the Code of Civil Procedure contending that the court sale held was void as no sale notice was served on him. Accepting that, the sale was also set aside on 23-2-1972 against which an appeal was filed by respondents 11 and 12 herein in C. M. A. No. 46 of 1972, Sub Court, Tirupattur, which was also dismissed. Thereupon, the 1lth respondent herein preferred an appeal before this court in A. A. O. No. 90 of 1973 and on 20-2-1974,this Court dismissed the appeal confirming the judgment and decree of the lower courts. After filing R. E. A. No. 282 of 1965 Mohamed Zackria died. Meanwhile, the 12th respondent sold the properties to the petitioner on 30-12-1964 and the petitioner remained in poss6ssion of the properties. After the death of Mohamed Zackria, respondents 1 to 10 were brought on record and they filed an application in R. E. A. No. 290 of 1975 u/ss. 144 and 151, C. P. C. for delivery of possession of the suit properties to them and also to direct the petitioner and respondents 11 and 12 to account for the income from the suit properties from 29-7-1964 up to the date of' delivery of possession. That application was resisted by the 11th respondent herein contending that his father Margabandu had, instituted the suit on' the mortgage in O. S. No. 733 of 1956 and pursuant to the decree, the properties were sold and purchased by the 12th respondent. herein on 18-3-1964. It was his further case that Mohamed Zackria had leased out the properties to the petitioner herein on 22-2-1962 and subsequent to the delivery of possession of the properties to the 12th respondent herein, the petitioner had purchased the same on 30-12-1964 and there cannot, therefore, be any liability on the part of the llth respondent for accounting. It was also contended by him that respondents 1 to 10 are not entitled to any compensation and that the relief of restitution would not be available excepting as against a person in possession of the properties.

2. The petitioner, who figured as the 3rd respondent in that application, contended that he is a bona fide purchaser for value without notice having purchased the properties on 30-12-1964 from the 12th respondent herein who had no connection with the 1lth respondent. It was also the further case of the petitioner that he had deepened the well at a cost of Rs. 2,000/- and that owing to the low fertility of the soil, proper cultivation could not be carried on. The petitioner also claimed that he had planted 70 cocoanut seedlings and had also incurred further expenditure for keeping a watchman etc. and also claimed to have improved the land by spending a sum of Rs. 2,000/- An objection was raised to the maintainability of the application u/s.

144. The petitioner claimed that respondents 1 to 10 are liable to pay a sum of Rs. 6,000/- together with another sum of Rs. 600/- towards the stamp duty and registration charges etc. A further claim for compensation in respect of the value of the cocoanut trees was also made by the petitioner against respondents 1 to 10. The liability to render an account of the income from 29-7-1964 was also disputed by the petitioner.

3. The learned District Munsif, Tirupattur, who enquired into the application, held that the application is maintainable and that respondents 1 to 10 are entitled to be put back in possession of the properties by the petitioner, as the petitioner is not a bona fide purchaser for value and his purchase of the properties was with the knowledge of the proceedings initiated by late Mohamed Zackria. The income from the properties was held to have been expended in the planting of cocoanut trees and maintaining them and the expenses and the income were found to be equal and consequently, it was held that the petitioner was not liable to render any account of the income claimed by respondents 1 to 10. Ultimately, the learned District Munsif, directed that the petitioner should deliver peaceful possession of the properties to respondents 1 to 10. Aggrieved by this, the petitioner preferred an appeal in C. M. A. No. 34 of 1976, Sub Court, Tirupattur, while respondents 11 and 12 herein preferred C. M. A. No. 39 of 1976, Sub Court, Tirupattur, against the same order. Both the appeals came to be dealt with together and disposed by a common judgment. The learned subordinate Judge, Tirupattur, on a consideration of the facts and circumstances of the case held that restitution in favour of the respondents I to 10 had been rightly ordered by the court below and that that conclusion does not merit any interference in appeal. Consequent to this conclusion, the appeals were dismissed. It is the correctness of this order that is challenged by the petitioner in this Civil revision petition.

4. The entitlement of respondents 1 to 10 to be put back in possession of the properties now with the petitioner cannot be seriously disputed. The petition filed by Mohamed Zackria for setting aside the sale was on 24-12-1964 and within six days thereafter, on 30-12-1964, the petitioner purchased the prop6rties from the 12th respondent himself 'It is obvious that the purchase by the petitioner was after the institution of the proceedings. by late Mohamed Zackria for setting aside the sale and consequently, the right of the petitioner, if any, would only be subject to the result of that application. On 23-2-1972 it was held that the sale held on 18-3-1964 was void for non-service of sale notice on the judgment-debtor and consequently, the sale was set - aside, which was confirmed in appeal on 23-3-1975 and later affirmed by this court also in C.M.A. No. 90 of 1973 on 20-9-74 (1976?) Having regard to the purchase of the properties by the petitioner from the 12th respondent herein during the pendency of the proceedings to set aside the sale, the title of the 12th respondent himself was not perfected at the time when he purported to transfer the properties in favour of the petitioner herein and when the title of. the 12th respondent was defeated by the sale. being set aside, the petitioner certainly could not have obtained any title to the property by such purchase from the 12th respondent during the pendency of the proceedings to set aside the sale initiated by Mohamed Zackria. It is also the finding of the courts below, which has not been in any manner challenged that the petitioner purchased the properties with the knowledge of the initiation to proceedings by Mohamed Zackria against respondents 11 and 12 herein. Consequently, it must be held that the petitioner did not acquire any title as such to the Properties and On the setting aside of the sale in favour of the 12th respondent herein by the courts, the petitioner was bound to put back respondents 1 to 10 in possession of the properties, The order of restitution passed by the courts below, therefore, is correct.

5. However, the learned counsel for the petitioner raised a contention that having regard to the lease of the properties granted by late Mohamed Zackria in favour of the petitioner on 22-2-1962, his possession as a tenant cannot be interfered with under the give of an application for restitution u/s. 144 and therefore, possession of the properties ought not to be directed to be handed over to respondents 1 to 10. On the other hand, the learned counsel for respondents 1 to 10 contends that the position of the petitioner was not that of a tenant, but- was only a licensee in respect of the cocoanut tope and in any event, when he had claimed title to the properties, whatever rights he might have had originally as a lessee had been lost- to him as a result of the merger of the lesser interest with that of the larger interest and consequently the petit-.owner, on the invalidation of the sale in his favour, cannot be Permitted to fall back upon his rights as a lessee and resist restitution. It is therefore necessary to ascertain whether this petitioner was a lessee as claimed by him or only a licensee as now urged by the learned counsel for respondents 1 to 10. Even in the counter of the l1th respondent herein before the courts below, a reference to the lease created by 'late Mohamed Zackria in favour of the petitioner on 22-2-1962 is made. Further, it appears from the judgment of the trial court that there was no dispute with reference to the status of the petitioner as a lessee. In para 15, the trial court has stated thus :

The third respondent (petitioner herein) was a lessee prior to his purchase from the deceased first petitioner (Mohamed Zackria Sahib) and the same cannot be disputed. The lease amount stated in the petition is Rs. 125/- p.m." From the above it is clear that the status of the petitioner as a lessee under Mohamed Zackria cannot now be denied. Even so, the further question that arises for consideration is whether the petitioner is still entitled to resist the application for restitution on the ground that he is entitled to tenancy rights. It had already been pointed out that the petitioner had purchased the properties and 30-12-1964 from the 12th respondent herein, who was the purchaser of the right, title and interest of the lessor Mohamed Zackria in the court auction. If the interest of the lessor Mohamed Zackria and the interest of the lessee had vested in the same person viz. the petitioner, then it is obvious that the character of his possession changed from that of a lessee into that of an owner of the property and there would be, under those circumstances, a determination of the lease as well u/s. 111(d) of the T. P. Act. That section states that a lease of immovable property determines in case the interest of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. In Mulla on the T. P. Act, 6th edition, at page 741, it is stated as follows:-

"When a leasehold and a reversion coincide there is a merger of a lesser estate in the greater. The leasehold is the lesser estate, for it is carved out of the estate of the owner, which is the reversion. The lesser estate is merged, that is, sunk or drowned in the greater. The lease determines for it sinks into the reversion. Thus, if the lessor purchases the lease's interest, the lease is extinguished, as the same man cannot be at the same time both landlord and tenant."

In order, therefore, to give effect to merger, it is necessary that a lesser estate and the greater estate should merge in one person at one and the same time and no interest in that property should remain outside. In this case of lease, the estate of the lessor Mohamed Zackria is a reversion and that had come to be vested with the petitioner, who was a lessee and there was no other interest in the property which had remained outside. Consequently, in the present case, there was a merger of the interest of the lessor and the lessee in the petitioner. The sale under Ex. B.1 dated .30-12-1964 by the 12th respondent in favour of the petitioner establishes beyond doubt that it was inconsistent with the continuance or the susbsistence of the lease. The possession of the properties by the petitioner after 30-12-1964 is not referable to the lease of the properties by Mohamed Zackria on 20-2-1962, but to the sale under Ex. B.1 in favour of the petitioner and therefore, the lease in favour of the 'petitioner did not either subsist or ensure for the benefit of the petitioner thereafter. An analogous situation with reference to the maintainability of an application for eviction under the provision s of the Tamil Nadu Cultivating Tenants Protection Act XXV of 1955 arose for decision inAnnamalai Gounder v. Venkatasami Naidu, . In that case, after the

expiry of the period of lease, an agreement was entered into between the parties whereby the leased properties were agreed to be sold to the lessee. There was a tender of the balance of consideration which was declined to be accepted by the landlord and a sale deed was also not executed. An application for eviction was made by the landlord under the provisions of the Tamil Nadu Cultivating Tenants, Protection Act and an objection was raised that the relationship of landlord and tenant did not subsist and therefore, the petition was not maintainable Ganapathia Pillai, J., held as follows (at p. 303 of Mad LJ) : (at p. 355 of AIR):

"It is obvious that till the contract of sale was entered into, the petitioner only occupied the position of lessee. But, after the date of the contract and after it was performed in part by consideration being paid for the contract and the landlord allowing the tenant to remain in possession by reason of the new status -created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the petitioner was referable to the contract of lease the moment possession is taken or continued under the contract of sale, the original relationship of landlord and tenant ceases to exist and the landlord cannot take advantage of the provisions of the Madras Cultivating Tenants Protection Act to file an application for eviction. It is manifest that, before any proceeding for eviction could be taken under the Madras Cultivating Tenants Protection Act, the relationship of landlord and tenant must subsist both on the date when the cause of action arose and when the application was made I hold that the relationship of landlord and tenant ceased to exist when the contract- of sale was entered into and was performed in part."

To similar effect is the decision in Chinna Thevar v. Gnanaprakasi Ammal, . There also a tenant continued to be in

possession, even after the expiry of the lease period without paying the rent in pursuance 'of an agreement of sale and the landlord filed an application for eviction on the ground of non-payment of rents. The petition was dismissed, but on appeal, an order for eviction was passed and in the revision by the tenant, it was held that the possession of the tenant after the agreement, was possession pursuant to the agreement of sale and the relationship of landlord and tenant ceased to be operative and therefore, the tenant was entitled to resist the proceedings for eviction using the agreement in his favour as a shield in defence to the application for eviction of the landlord. In Reoti Saran v. Hargu Lal the question arose whether sale of the property to

a tenant determines the lease even though the sale is one with a condition for repurchase and whether possession of the property by the tenant, after reconveyance of the property in the absence of a fresh agreement of tenancy, is wrongful. Oak, J., after referring to Badri Narain v. Rameshwar Dayal where it was pointed out that if the lessor purchased the lessee's interest, the lease is extinguished as the same man cannot be at the same time, both a landlord and the tenant, proceeded to observe thus (at p. 543 of AIR 1964 All):-

"Before July 1942, the plaintiff and his brothers were proprietors of the shops, and Nargu Lal was the tenant of the shops. On 2-7-1942 Nargu Lal purchased the proprietary right in the shops under the sale deed (Ex. 1). Since the interests of the lessor and the lessee in the whole property became vested at the same time in Nargu Lal, the principle laid down in S. 111(d), T. P ' Act fully applies. Upon execution of the sale deed (Ex. 1) Nargu Lal's former tenancy rights were extinguished.

Mr. Jagdish Swarup contended that the situation had materially altered as a result of the deed of agreement (Ex. 2) dated 2-7-1942. It was contended that Nargu Lal did not acquire an indefeasible right in property. So S. 111(d), T.P. Act could not be applied to the present case. It is true that Nargu Lal promised to reconvey the property on receiving the price within eight years. But the agreement did not create any defect in Nargu Lal's title to the property. Between 1942 and 1946 Nargu Lal remain the full 'owner of the property. We were taken through the sale deed (Ex. 1) and the agreement (Ex .2) .There was no provision in either of two documents to keep Nargu Lal's tenancy right alive .It does, not therefore, appear that the execution of the agreement (Ex. 2) made any difference as regards applicability of section 111(d),T.P. Act. On 2-7-1942, Nargu Lal's tenancy right in the shops were extinguished. The learned civil Judge found that there was no fresh contract of tenancy after 21-2-1946 (date of purchase). The result is that after 21-12-1946 Nargu Lal could not claim any tenancy right in the shops. The defendant's occupation of the shops after 21-12-1946 was wrongful. The learned Civil Judge was right in decreeing the plaintiff's claim for possession on the footing that, the defendant's possession was wrongful."

In Palanisami Cheeti v. Muruganna Gounder ((1979) 1,Mad LJ 470), Padmanabhan, J., had occasion to consider the effect of a sale of property to a person who had rights therein as a tenant and whether on the basis of such tenancy rights, it is open to him to defend an action for specific performance of an agreement. There, the plaintiff filed a suit for specific performance of an agreement of sale executed by the first, defendant agreeing to convey a piece of land measuring 5.96 acres. During the currency of the agreement, thirst defendant sold the property to the second defendant in the suit who was a tenant of that land. The trial Court having granted a decree, defendants 1 and 2 preferred appeals. In the appeals, the second defendant 'contended that he was entitled to the protection and benefits of the Tamil Nadu Cultivating Tenants, Protection Act. Repelling the claim of the second defendant, Padmanabhan, J., held that on the execution of the sale deed in favour of the second defendant by the first defendant, the title of the first defendant passed on to the second defendant and consequently, from the date of sale, the possession of second defendant ceased to be that of a tenant and the relationship of landlord and tenant, if any, that existed on that date ceased to be operative. It was also further held that possession of the second defendant is referable only to the sale deed and that therefore it will not be open to the second defendant to fall back upon his earlier pos session as a tenant

6. In the present case, it is not even stated that the tenancy rights of the petitioner were in any manner preserved to be operative in spite of the sale in his favour under Ex. B 1, D/- 30-12-1964. Nor the petitioner has come forward with a case that after the invalidation of the sale in his favour, there was any agreement between respondents 1 to 10 and him to allow him to as a tenant of the properties in question. On the execution of the sale under Ex. B. 1 dt. 30-12-1964 by the 12th respondent, the petitioner secured title to the properties in question and there after his possession of the properties can be attributed only to ownership of the properties and not as a mere lessee as before. Consequently, the petitioner cannot set up tenancy rights in the properties as a shield to the application for restitution made by respondents 1 to 10. The result, therefore, is that the orders of the Courts below are perfectly correct and do not justify any interference. The civil revision petition fails and is dismissed with costs. x x x x x

7. This matter which had earlier been disposed of on 22-7-1980, has been posted for being mentioned, at 'the request of the learned counsel for the petitioner. The learned counsel now submits that in order to enable the petitioner to avail, himself of rights as a tenant, it is wholly unnecessary for him to have kept those rights alive and that the petitioner will be entitled to resist restitution on, the footing that he is still a tenant. Reliance was placed by the learned counsel for the petitioner on the decision in Gurusami Aiyar v. Kaveri Boyee Ammal ( (1904) 14 Mad LJ 485) andDasari Polayya Dora v. Onarasi Anantha Patro (AIR 1936 Mad 61).

However, these decisions are not of much assistance to the petitioner as in this case it has been found that the purchase by the petitioner from the twelfth respondent, who purchased the property in Court auction on 18-3-1964, was on 30-12-1964, 6 days after the filing of an application for setting aside the sale on 24-12-1964. It must also be remembered that the finding of the Courts below is to the effect that the purchase by the petitioner was with the knowledge of the initiation of these proceedings by Zackria against the respondents 11 and 12 herein. Subject, therefore, to the result of the application to set aside the sale, the right of the vendor of the petitioner to dispose of his interest in the property was available to him and the sale deed between him and the petitioner dt. 30-12-1964. remained wholly operative as between vendor and Purchaser and no part of that sale deed "had been rendered ineffective or inoperative, It is, therefore, obvious that the petitioner cannot claim that as a result of the adjudication in the proceedings set aside the sale, sale-deed between him and the twelfth respondent was rendered invalid in any manner because as a document of sale between them, it had remained wholly operative and in the 'absence of any specific reservation of his rights as a lessee in a manner known to law, he cannot claim such rights. Under these, circumstances; the petitioner cannot claim that he, is entitled to be thrown back upon his prior rights as a lessee and that, therefore, he is entitled to resist restitution; Consequently, the orders of the Courts below directing restitution have to bell maintained as done already.

8. Revision dismissed.


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