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K.C. Chandu Kutti Kurup Vs. Gulam Mohideen Saheb - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 78 of 1969
Judge
Reported inAIR1972Mad305
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 97 and 98 to 103; Madras Building (Lease and Rent Control) Act; Transfer of Property Act - Sections 108; Madras City Tanants Protection Act
AppellantK.C. Chandu Kutti Kurup
RespondentGulam Mohideen Saheb
Cases ReferredIn Nayagamma v. Plantain Merchants Association
Excerpt:
.....real tenant - sub-tenant who is in possession is a tenant only of his lessor and has no privity of contract and privity of estate to superior lessor landlord - revision petition dismissed. - - ponnuram chetti failed to surrender possession within the time mentioned in the compromise decree......undisputed facts are: the respondent herein is the owner, of the suit site. the defendant in the suit, ponnuram chetti, has taken the suit site on oral lease in 1909 and he is the owner of the superstructure on the site. the obstructor claims to be a tenant under ponnuram chetti as per ex. b-12 dated 17-12-1956. in the suit filed by the landlord against ponnuram chetti which ended in a compromise, the tenant elected to receive a compensation of rs. 850 for the superstructure put up by him and agreed to deliver possession of the suit property within six months from the date of the compromise. the landlord applied for amendment of the decree by adding the words 'including the superstructure thereon' after the suit property in the operative portion of the decree. he had also prayed for.....
Judgment:
ORDER

1. The obstructor to the execution is the petitioner. The respondent herein is the landlord who filed O. S. 791 of 1964 on the file of the District Munsif, Salem, against his tenant Ponnuram Chetti for possession. the suit was compromised, and, as per the compromise, the plaintiff became entitled to possession. Ponnuram Chetti failed to surrender possession within the time mentioned in the compromise decree. When the landlord went to take delivery of possession with the Amin, the revision petitioner who claims to be a tenant under Ponnuram Chetti obstructed delivery, with the result that the delivery was not effected and the present application was filed under Order XXI, Rule 97, C. P. C. for removal of the obstruction.

2. The case of the obstructor is that the suit and the compromise decree were collusive and fraudulent intended mainly to evict him. His further case is that originally the suit site was let out to one Balan Nambiar, the brother-in-law of the obstructor, in 1945, that Balan Nambiar put up superstructure on the site brother put up superstructure on the site borrowing money from one Rukmani Ammal, that the creditor Rukmani Ammal filed a suit for recovery of money due from Balan Nambiar, that she obtained an order of attachment before judgment of the superstructure and the moveables in the hotel run by him in the suit site, that the landlord and others preferred claims to the properties attached, that they were allowed, that Rukmani Ammal filed two suits for setting aside the claim orders, that the suit were decreed, that the decrees were confirmed in appeal, that the creditor brought the attached properties to sale, that the judgment-debtor. asked Ponnuram Chetti to purchase the superstructure for his benefit and that accordingly Ponnuram Chetti purchased the superstructure. The case of the obstructor is also that he became a partner of Balan Nambiar in 1954, that both he and Balan Nambiar executed a lease deed in favour of Ponnuram chetti, that later on the obstructor executed another lease deed in favour of Ponnuram Chetti, that the landlord in the present case has not impleaded the obstructor as a party to the suit notwithstanding the fact that he knew that the obstructor was in possession of the suit property, that the obstructor has made large improvements, that he is prepared to deposit the rent into court, and that the landlord is not entitled to recover possession.

3. The trial Court considered the only question raised whether the obstruction by the revision petitioner was justified and whether he was protected from ejectment. The learned District Munsif overruled the objections of the obstructor and allowed the petition for removal of the obstruction filed by the landlord.

4. The obstructor has filed the above civil revision petition. The undisputed facts are: The respondent herein is the owner, of the suit site. The defendant in the suit, Ponnuram Chetti, has taken the suit site on oral lease in 1909 and he is the owner of the superstructure on the site. The obstructor claims to be a tenant under Ponnuram Chetti as per Ex. B-12 dated 17-12-1956. In the suit filed by the landlord against Ponnuram Chetti which ended in a compromise, the tenant elected to receive a compensation of Rs. 850 for the superstructure put up by him and agreed to deliver possession of the suit property within six months from the date of the compromise. The landlord applied for amendment of the decree by adding the words 'including the superstructure thereon' after the suit property in the operative portion of the decree. He had also prayed for the addition of the words 'the superstructure' after the words 'vacant site' in the description of the property given in the decree. On 16-3-1968, the amendment was ordered. By reason of the amendment of the decree, the landlord will be entitled to possession of the vacant site and the superstructure thereon from his tenant, Ponnuram Chetti. the contention of the obstructor is that the suit is a collusive suit intended to circumvent the protection afforded to the obstructor who is a tenant under Ponnuram Chetti under the Madras Building (Lease and Rent Control) Act. In the absence of materials to establish the contention, the trial court negatived the contention with which I agree.

5. The next contention raised by the obstructor is that the decree for eviction against the chief tenant will not bind him, as he was not a party to the ejectment suit, that, in any event, the chief tenant having purchased the superstructure from the persons who put up the deemed to be subject to the lease created in favour of the obstructor. and that he is not liable to be evicted except in accordance with the provisions of the Madras Building (Lease and Rent Control) Act. Analysing the facts, we have here the head lease relating to the lease of the land by the owner in favour of Ponnuram Chetti, and Ponnuram Chetti who put up superstructures therein by various transactions becoming the owner of the superstructure. The landlord determined the tenancy (head lease) and sought eviction. It is open to the lessee, even after the determination of the lease, to remove, at any time while he is in possession, the construction put up by him but not after his dispossession. By reason of the negotiations between Ponnuram chetti and the owner, Ponnuram chetti would appear to have allowed the owner to retain the building as it stood then and receive compensation for the same. It was under those circumstances that the original decree, which was for delivery of the vacant site, was subsequently amended into one for possession of superstructure, besides possession for the vacant site from the tenant Ponnuram Chetti, Section 108(h) of the Transfer of Property Act covers the present situation. What then are the rights of the tenant who has been inducted into possession of the building by Ponnuram chetti?

6. A sub-tenant who is in possession, is a tenant only of his lessor, in this case the lessor of the sub-tenant being Ponnuram Chetti, and the sub-tenant will have neither a privity of contract not privity of estate so far as the superior lessor (in the present case the landlord) is concerned. In Parthasarathi v. Shyamalamba, : AIR1964Mad439 , Ramachandra Iyer, C. J., and Anantanarayanan J. (as he then was) considered the position of a sub-tenant who had put up construction, with reference to the Madras City Tanants Protection Act. in the present case, the construction put up was not by the sub-tenant but by the main tenant himself. As between the main tenant and the owner the rights have been crystallised under the compromise decree and therefore the decision in : AIR1964Mad439 is not of much assistance, In Nayagamma v. Plantain Merchants Association, : (1968)1MLJ386 , the position of sub-tenant was considered with reference to an eviction order against the chief tenant without impleading the sub-tenant. The learned Judges held that an order f eviction obtained against the chief tenant can be executed by evicting the sub-tenants who were not made parties in the application for eviction. If the sub-tenants are parties, the order of eviction would be binding on them of its own force and execution could be levied under Order XXI, Rule 35, C.P.C. But if the sub-tenants are not made parties to the eviction application, they will not be entitled to the order and any obstruction of delivery in execution would fall only under Order XXI, Rule 98, C.P.C. The rights of a sub-tenant who has not been made a party, are sufficiently protected by the general provisions contained in Order XXI, Rr. 98 to 103, C.P.C. Following the aforesaid decision, I hold that the obstructor's rights in the present case are sufficiently protected and that the order passed to remove the obstruction put forward by the obstructor is correct.

The revision petition fails and is dismissed. There will be no order as to costs. Time for vacating from the premises is six months from this date.


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