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S. Duraisami Nadar Vs. Nagammal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1981)1MLJ35
AppellantS. Duraisami Nadar
RespondentNagammal
Cases ReferredAnnamalai v. Venkatasami
Excerpt:
- - in this view he dismissed the eviction petition without going into the other question as to whether the landlady has established her bona fide requirement of the premises for the purpose of carrying on her son's business and whether the default complained of by the landlady was wilful or not. in this view of the matter the rent controller is clearly in error in holding that the relationship of landlord and tenant has ceased and there is no liability to pay rent......judge held that the theory of part-performance applied and, therefore, the person who got the sale agreement cannot be dispossessed. in this case, even if there has been an agreement of sale and advance has been paid in pursuance of that agreement, no agreement has been filed before the court and none of the parties had spoken about the agreement containing a term putting an and to the relationship of landlord and tenant and that the continued possession by the tenant should be traced only to the agreement of sale. though in a way the petitioner says that his possession is traceable to the agreement of sale, unless the agreement of sale itself refers to that fact his possession which is traceable to the lease arrangement cannot now be treated as possession under the agreement of.....
Judgment:

G. Ramanujam, J.

1. The petitioner herein is the tenant in respect of door No. 13, Madurai Road, wherein he is running a hotel business. The respondent herein who is the landlady filed a petition for his eviction on two grounds (i) wilful default in payment of the monthly rents and (2) bona fide requirement of the building for the purpose of running a hotel business by her son. The application for eviction was resisted by the petitioner herein on the ground that the relationship of landlord and tenant had come to an and as he had entered into an agreement to purchase the property and had paid an advance of Rs. 10,000 and that the requirement of the landlady far the purpose of running her son's hotel business was not bona fide.

2. The Rent Controller accepted the defence taken by the tenant that there is no relationship of landlord and tenant between the petitioner and the respondent after the alleged agreement of sale and that, therefore, there is no liability to pay rent at all subsequent to the date of the agreement. In this view he dismissed the eviction petition without going into the other question as to whether the landlady has established her bona fide requirement of the premises for the purpose of carrying on her son's business and whether the default complained of by the landlady was wilful or not. However, on appeal the appellate authority has taken the view that notwithstanding the agreement of sale between the petitioner and the respondent the relationship of landlord and tenant continues and therefore there is clear wilful default in payment of the arrears of rent by the petitioner to the landlady and that the landlady has also established her bona fide requirement of the premises for the purpose of carrying on her son's business. In this view the Appellate Authority ordered petitioner's eviction. The said order of eviction has been challenged in this revision.

3. The learned counsel for the petitioner contends that the view taken by the Appellate Authority that the relationship of landlord and tenant between the petitioner and the respondent subsists even after the agreement of sale is erroneous and that once an agreement of sale is entered into between the landlord and tenant, the relationship of landlord and tenant automatically ceases in view of the provisions contained in Section 53-A of the Transfer of Property Act, hereinafter referred to as the Act. The learned counsel in support of that contention relies on the decision of this Court in Annamalai v. Venkatasami : AIR1959Mad354 . The question in that case was as to the applicability of Section 53-A of the Act in proceedings under the Madras Cultivating Tenants Protection Act. On the facts of that case Ganapathia Pillai, J., found that Section 53-A is applicable and that the benefit of Section 53-A can be claimed in the course of the proceedings under the Madras Cultivating Tenants Protection Act. In that case there was clear evidence that the continued possession of the tenant was in pursuance of the agreement of sale and, therefore, the tenant could claim the benefit of Section 53A of the Act. But in this case there is no evidence that the parties agreed that the relationship of landlord and tenant should cease and the tenant's possession should be traced only to the agreement of sale. By merely entering into an agreement of sale the tenant does not acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part-performance under Section 53-A. It is with reference to the special facts of that case which indicated that the possession of the tenant after the agreement of sale was with reference to its terms and not with reference to the original lease, the learned Judge held that the theory of part-performance applied and, therefore, the person who got the sale agreement cannot be dispossessed. In this case, even if there has been an agreement of sale and advance has been paid in pursuance of that agreement, no agreement has been filed before the Court and none of the parties had spoken about the agreement containing a term putting an and to the relationship of landlord and tenant and that the continued possession by the tenant should be traced only to the agreement of sale. Though in a way the petitioner says that his possession is traceable to the agreement of sale, unless the agreement of sale itself refers to that fact his possession which is traceable to the lease arrangement cannot now be treated as possession under the agreement of sale. Even assuming that the petitioner is entitled to the benefit of Section 53-A his liability to pay rent does not cease unless the agreement of sale puts an end to that liability in specific terms. In this case it is not claimed even by the petitioner that under the agreement the liability to pay rent has ceased. In this view of the matter the Rent Controller is clearly in error in holding that the relationship of landlord and tenant has ceased and there is no liability to pay rent. The Appellate Authority is right in my view, in holding that the relationship of landlord and tenant has not ceased and therefore the liability to pay rent continues and the default in payment of the rents is wilful. I am in entire agreement with the finding of the appellate authority, in this regard. The Appellate Authority has also found that the requirement of the building by the landlady for the purpose of the business of her son was bona fide. I do not see any error in the said, finding of the Appellate Authority. In this view the order of eviction passed by the appellate authority has to be sustained.

4. The Civil revision petition therefore, fails and is dismissed. The petitioner will, however, have four months time to vacate.


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