Madras High Court
R. Sundara Naicker vs S. Chinnamal And Ors. on 9 February, 2004
Equivalent citations: 2004(1)CTC781
Author: S.R. Singharavelu
Bench: P. Sathasivam, S.R. Singharavelu
ORDER S.R. Singharavelu, J.
1. The impugned orders, against which, the plaintiff preferred these appeals are dated 12.1.1995 passed by the Seventh Assistant Judge, City Civil Court, Chennai in I.A.Nos. 956 of 1992, 4088 and 4087 of 1991 in O.S.No. 10158 of 1990. By the said orders, it was found that the defendants were requiring a minimum of 264 sq.ft of land and that they are entitled to purchase the same on availing the benefit of Section 9 of the City Tenants Protection Act. Aggrieved over the same, the plaintiff landlord preferred these appeals.
2. The suit was initially filed against the respondents herein for declaration of title and for recovery of possession in respect of the suit property. Although the copy of the plaint available on record does not show the plaint description of property, we are able to find from the applications under Section 9 of the said Act that it measures 264 sq.ft with superstructure and with thatched hut in R.S.No. 1458/1 (old S.F.No. 2001) in Thousand Lights, Chennai.
3. When the suit was pending, the respondents defendants filed the above said interlocutory applications seeking the benefit of Section 9 of the said Act. The Court below accorded the said relief.
4. Learned counsel for the appellant-plaintiff contended that the Court below has not gone into the aspect of the minimal requirements of the respondents-defendants and no proper discussion was made on that point and so, the applications filed by the respondents-defendants could not stand.
5. This cannot be a ground for dismissal of the said applications because even now, from the available records, we can ensure the minimal requirements of the respondents because the total stretch of land available is only 294 sq.ft with thatched hut.
6. Learned counsel for the appellant again contended that as there was no hut proved as available in the land so as to get it embedded to earth, the respondents are not entitled to the relief because for the removable bunk shops, no relief under Section 9 of the said Act is available.
7. It is true that the party in possession of a bunk shop may not ground it to acquire the land under the above provision. But, it is not the case of the appellant herein/plaintiff that what the respondents had was only a bunk shop not embedded to earth. In fact, the counter on this aspect is silent, when in the said applications it was emphatically stated that there was a thatched hut put up in the suit properly by the respondents herein/defendants. Thatched hut means roof surfacing top of the poles embedded to earth. This point also is not in favour of the appellant.
8. The last point that was urged on behalf of the appellant herein/plaintiff is that there was no relationship of landlord and tenants between the parties.
9. Learned counsel for the respondents pointed out that they have mentioned so in paragraph 3 of the applications filed under Section 9 of the said Act.
10. We are actually concerned with the material factor as to whether the respondents herein are entitled to file the applications under Section 9 of the said Act in a suit filed for recovery of possession. In this connection, we have to see what Section 9 of the said Act provides. Section 9 of the said Act runs as follows :
"9. Application to Court for directing the landlord to sell the land : (1)(a)(i) Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency small Cause Courts Act, 1882, taken by the landlord, may, within one month of the date of the publication of Madras City Tenants' Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town township or village in which the land is situate or within one month after the service on him of summons apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of land specified in the application."
11. In order to apply Section 9 of the said Act, the following ingredients are necessary:
i. A suit for ejectment should have been instituted;
ii. That suit should have been filed against the tenants; and iii. The tenants should be entitled to a compensation under Section 3 of the said Act.
12. The common fabric that spreads upon the above three ingredients is with the main thread of tenancy. Only if there is a tenancy, the ejectment suit should have been filed. Before ever we decide the existence of tenancy, if we find that the very nature of the suit filed by the plaintiff is for ejectment, then, it may pre-supposes the tenancy. But, in this case, the suit is for recovery of possession and not for ejectment.
13. A careful reading of the plaint would go to show that the possession was required on the footing that the respondents defendants were unlawful trespassers into the suit property. When such specific plea is found in paragraph 7 of the plaint, we cannot even imagine that it was a suit for ejectment, which would naturally pre-supposes the tenancy in favour of the respondents defendants. Since this is the situation regarding the filing of the suit, it only enhances the burden of the respondents defendants to prove that they were the tenants. The tenancy should be of the land by virtue of a lease, to which, a liability to pay the rent will arise. This liability of paying the rent will naturally denote the relationship of landlord and tenants.
14. Nowhere in the written statement filed by the respondents defendants there is any plea to repudiate the contention made in the plaint, especially the allegation made in paragraph 7 of the plaint that the defendants were occupying the land as unlawful trespassers. It has not been pleaded by the defendants that they were the tenants. Instead of that, what they have pleaded in the written statement was only to the effect that they were living in the suit property for more than four decades.
15. Further, the capacity to live has not been described, especially when the plaint allegation was that the defendants live there as unlawful trespassers. Inasmuch as the written statement of the respondents defendants did not even plead that they were the tenants in the suit property, the reasoning found in the plaint that they were only trespassers is all the more probabilised that a suit for recovery of possession was rightly filed. There is every justification for the plaintiff for not having filed a suit for ejectment and to file the suit for recovery of possession with, of-course, declaration of title.
16. Thus, there is not at all a suit for ejectment and added to that no relationship of landlord and tenants is proved. So, consequentially, the respondents are not entitled to file the applications under Section 9 of the said Act in a suit filed for recovery of possession based upon the unlawful possession of the defendants. The said applications filed under Section 9 of the said Act are not maintainable and in limine, they are liable to be dismissed.
17. Accordingly, the impugned orders of the Court below dated 12.1.1995 are set aside and the civil miscellaneous appeals are allowed. No costs.