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Chinna thevar Vs. Gnanaprakasi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1673 of 1975
Judge
Reported inAIR1979Mad47
ActsTamil Nadu Buildings (Lease and Rent Control) Act; ;Transfer of Property Act - Sections 53-A
AppellantChinna thevar
RespondentGnanaprakasi Ammal and anr.
Cases ReferredIn Annamalai Goundan v. Venkatasami Naidu
Excerpt:
.....date of the agreement of sale. it is also not disputed that prior to the date of the agreement of sale the revision petitioner has been paying the rent without and default. from this conduct of both parties it may be inferred that possession of the revision petitioner after the date of the agreement was deemed to be possession in pursuance of the agreement of sale. therefore, the relationship of landlord and tenant had ceased as between the revision petitioner on the one hand and the respondents and another person on the other. on this ground also the revision petitioner is entitled to resist the proceedings under the act, holding the agreement in his favour as a shield in defence to the action by the landlord. since the lease in favour of the tenant was by the respondents and..........under act xxv of 1955 and has observed that 'the moment possession is taken or continued under the contract of sale the original relationship of landlord and tenant cases to exist and the landlord cannot take advantage of the provisions of act xxv of 1955 to file an application for eviction." he has further held that 'after the date of the contract of sale 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 statute created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the vendee was referable to the contract of lease; and the conditions laid down in s. 53-a of the t. p. act are fulfilled even though a contract to sell.....
Judgment:
1. This is a Civil revision petition against an order of the learned Appellate Authority (Prinicpal Subordinate Judge, Madurai), allowing the appeal against the order of the learned Rent

Controller-cum-District Munsif, Thirumangalam, who dismissed the petition of the landlord for eviction of the tenant on the ground of wilful default in the payment of rent.

2. The tenant who is the revision petitioner herein contended inter alia that he is in possession in pursuance of an agreement of sale in his favour dated 24-11-1970 executed by the respondents herein and Kannan, the son of the first respondent and the brother of the second respondent and that, in any event, as he did not pay the rent during the period alleged under the impression that he is in possession in pursuance of the agreement of sale in his favour, all the terms of which he has performed his default was not wilful. He also contended that not only the respondents herein, namely, Gnanaprakasam Ammal and Jayapalan but also Kannan are the owners of the building, that he was inducted into possession by all the three and that the petition for eviction by two of them alone is not maintainable.

3. The learned Rent Controller found that, even though there was default, it was not wilful default, because the tenant bona fide thought that his possession is traceable to the agreement of sale in his favour and dismissed the petition for eviction. The learned Appellate Authority purporting to rely on a decision of this court in Munuswami Gounder v. Erusa Gounder allowed the

appeal, holding that in proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act (to be referred hereafter as the Act), the tenant cannot rely on the provisions of S. 53-A of the T. P. Act and held the agreement of sale as a shield in defence to the action for eviction under the Act. This view of the learned appellate authority cannot be sustained.

4. In Munuswami Gounder v. Erusa Gounder , a Branch of this court has merely held that the transferee cannot ask for a declaration of title. It has not negatived the right of the defendant in possession to hold the agreement of sale as a shield to protect his possession. On the other hand, speaking for the Bench, Sri Veeraswami C. J. has held that S. 53-A of the T. P. Act does confer some right on the transferee, if the conditions of that section are fully satisfied, that this is a right to have the transferor or any person claiming under him debarred from enforcing against a transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, that this right can be enforced by the transferee always as a shield and not as an independent claim either in the capacity of plaintiff or defendant, that is to say, he cannot ask for title basing his claim on the fact that he has fulfilled the conditions of S. 53-A, that he can as a shield, ask for protection of the right envisaged by S. 53-A, by debarring by getting an injunction against the transferor and those claiming under him from interfering with his possession. If the transferee who has fulfilled the conditions of S. 53-A of the T. P. Act, can rely on the agreement of sale in his favour as a shield in a suit for eviction and can even ask for an injunction to protect his possession as against the transferor, there is no reason why he should not rely on the agreement of sale in similar circumstances as a shield against the landlord in proceedings for eviction instituted under the Tamil Nadu Buildings (Lease and Rent Control) Act. There appears to me to be no difference in principle between a defence to an action in proceedings under the Act and a defence to an original suit for eviction.

5. In the instant case, the agreement in favour of the revision petitioner dated 24-11-1970, to convey the building in the occupation of the revision petitioner for a consideration of Rs. 2600 has been executed by the respondents and Kannan, the son of the first respondent. Ex B.2 is an endorsement on the back of Ex B.1 for the receipt of a sum of Rs. 2000 on 29-3-1971, by Kannan and Jayapalan (P.W. 1). It would appear from this endorsement of payment that the entire sum of Rs. 2600 due and payable as consideration for the sale deed has been paid by the payment of a sum of Rs. 2000 on that day. Admittedly, a sum of Rs. 600, was paid on the date of Ex. B.1 itself. P.W. 1 has admitted his signature in Ex. B.2. However, he has endeavoured to get over the fact that he has signed in Ex. B.2 by claiming that nothing had been written above his signature when he signed in Ex. B.2. This is preposterous. Kannan has signed above the signature of P.W. 1 in Ex. B.2. This fact is proved by R. W. 1. A comparison of the signature of Kannan in Ex. B.1. with his alleged signature in Ex. B.3, would conclusively prove that the signature in Ex. B.2, is the signature of Kannan, brother of P.W. 1. Even if the signature of P.W. 1 had been obtained in blank in Ex. B.2., the signature of Kannan should have been there before P.W. 1 signed the same. Therefore it is that I characterised the evidence of P.W. 1 on this aspect as preposterous. It would be seen from Ex. B.2 that by the payment of this sum of Rs. 2000 the revision petitioner had performed his part of the agreement in entirety and what remained to be done was to have the sale deed written and registered at the cost of the revision petitioner. The learned counsel for the respondents, however, requests that the question whether a sum of Rs. 2000 was paid as per the endorsement, Ex. B.2, may be left open for determination in a separate suit, if either party chooses to go to the court. Therefore I leave that question open for consideration in as separate suit. However, I am constrained to observe that prima facie it appears that a sum of Rs. 2000 was paid to P.W. 1 as per Ex. B.2.

6. In the circumstances, the question whether the revision petitioner is entitled to rely on the provisions of S. 53-A of the T. P. Act and hold Ex. B.1 as a shield against the proceedings for eviction initiated by the landlord has to be considered.

7. In Annamalai Goundan v. Venkatasami Naidu ,

Ganapatia Pillai J. has considered the application of the provisions of Section 53-A of the T.P. Act in proceedings for eviction instituted by a landlord under Act XXV of 1955 and has observed that 'the moment possession is taken or continued under the contract of sale the original relationship of landlord and tenant cases to exist and the landlord cannot take advantage of the provisions of Act XXV of 1955 to file an application for eviction." He has further held that 'after the date of the contract of sale 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 statute created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the vendee was referable to the contract of lease; and the conditions laid down in S. 53-A of the T. P. Act are fulfilled even though a contract to sell alone was obtained." The learned Judge further held that if the conditions stipulated in S. 53-A of the T. P. Act are fulfilled, it cannot be denied that the landlord would be helpless in a civil court if he resorted to that court for evicting the petitioners. There is no dispute that the contract for sale has been performed in part in this case and that it is supported by consideration. The other requirement whether the petitioner was allowed to continue in possession of the property in part performance of the contract is not also in doubt, because, at the time when the contract of sale was entered into, the term of the lease had expired and the landlord was free to enforce his claim for possession, subject, of course, to the provisions of the Madras Cultivating Tenants Protection Act. 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. There can be no doubt in this case, that the conditions laid down in S. 53-A of the T. P. Act are fulfilled even though a contract to sell alone was obtained. No authority was cited for the contention that a deed of transfer should have been obtained by petitioners before they could invoke S. 53-A. Indeed the very language of the section is against such a contention. The question whether this defence would be open in a proceeding for eviction under the Madras Cultivating Tenants Protection Act is really beside the point, because 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."

8. The principles laid down in that decision are applicable on all fours to the instant case. In view of the prima facie case made out by the revision petitioner on the basis of Ex. B.2 that he had paid the entire consideration due and payable by the sale deed, he had to do nothing more than the necessary stamp papers for the respondents and Kannan to execute a sale deed at his cost. Admittedly, no rent was paid by the revision petitioner after the date of Ex. B.1. It is also not disputed that prior to the date of Ex. B.1., the revision petitioner has been paying the rent without any default. From this conduct of both parties, it may be inferred that possession of the revision petitioner after the date of Ex. B.1 was deemed to be possession in pursuance of the agreement of sale. Therefore, the relationship of landlord and tenant had ceased as between the revision petitioner on the one hand and the respondents and Kannan on the other. On this ground also the revision petitioner is entitled to resist the proceedings under the Act. I also find that even in proceedings instituted under the Act for eviction, the tenant is entitled to hold the agreement in his favour as a shield in defence to the action by the landlord.

9. One more contention raised by the revision petitioner, namely, that as the lease in his favour was by the respondents and Kannan, the proceedings for eviction instituted by the respondents alone are not maintainable, has not been considered by the learned Rent Controller or the appellate authority. In view of the fact that Ex. B.1 has been executed by the respondents as well as Kannan, I am inclined to accept the case of the revision petitioner as spoken to by him as R. W. 1 that the lease in his favour was by respondents and Kannan. Therefore the proceedings for eviction instituted by respondents alone are not maintainable. Hence the civil revision petition is allowed. The judgment of the learned appellate authority is set aside, and the petition for eviction is dismissed. No costs.

10. Revision allowed.


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