Madras High Court
Thangamani And Anr. vs Natesan And Ors. on 23 March, 1990
Equivalent citations: (1990)1MLJ388
ORDER Bellie, J.
1. The defendants are the appellants. They lost their case in both the Courts below. The suit relates to a land, 10.78 acres in two survey numbers. It orignally belonged to one Madanagopal Naidu. The two defendants were tenants under him. The five plaintiffs purchased the land from Mandanagopal. At the time of sale there was standing casuarina trees. The plaintiffs filed two suits (may be because of two survey numbers, two suits) on the file of District Munsif Court, Sirkali for their half share in the standing casuarina trees. Later on the suits were compromised as per which the plaintiffs and the defendants entered into a sale agreement Ex.A.1 dated 10.5.1977. According to this the defendants agreed to purchase and the plaintiffs agreed to sell the suit property for Rs. 63,000. On the date of agreement the defendants paid a sum of Rs. 3000 by way of advance. As regards the balance of Rs. 60,000 it was stipulated that the defendants shall pay it in three equal instalments of Rs. 20,000 and the first instalment of Rs. 20,000 shall be paid on or before 30.9.1977 and the second instalment of Rs. 20,000 as to be paid by 30.1.1978 and thereupon the defendants shall obtain from the plaintiffs a sale deed on stamp papers. The third instalment of Rs. 20,000 was to be paid on or before 10.5.1978 and then they should get the sale deed registered. It was further stipulated that in default of payment of the first instalment the defendants shall pay to the plaintiffs a further sum of Rs. 3,000 before the second instalment becomes due and in default in payment of second instalment and getting sale deed signed on stamp papers the defendants should pay the plaintiffs damages for use and occupation of the properties and surrender possession. In case the plaintiffs commit default on their part (it is rather curiously stipulated that) they should pay back twice the amount received by them and execute a registered sale deed. It is further stated in the agreement that the defendants are allowed to continue in possession of the lands along with the standing casuarina trees.
2. The plaintiffs filed the suit alleging that the defendants failed to perform their part of the agreement and therefore they are entitled to take possession from the defendants with past and future mesne profits.
3. The defendants resisted the suit contending that there was no default on their part and on the other hand there was breach committed by the plaintiffs only and they further contended that in any account they are not liable to be evicted because their possession is protected under the Cultivating Tenants Protection Act. They also pleaded that they are entitled to be in possession under Section 53-A of the Transfer of Property Act.
4. The Subordinate Judge who tried the suit on consideration of the issues framed held that the defendants committed default in performance of their part of the contract. He rejected the defendants' contention that they are entitled for protection under the Cultivating tenants Protection Act. He further disallowed their plea that they are entitled to be in possession under the principle of part performance as laid down under Section 53-A of the Transfer of Property Act. He therefore held that they are liable to be evicted and decreed accordingly. He also decreed for past and future mesne profits but left it open for fixing the quantum under a separate proceedings.
5. The defendants appealed. The learned District Judge who heard the appeal agreed with the findings of the trial Court and therefore he dismissed the appeal.
6. The concurrent finding of the Courts below that the defendants failed to perform their part of the contract is not seriously disputed here. On going through the two Judgments I am quite sure that the said concurrent finding is unassailable. The point that is seriously argued by Mr. T.R. Mani, learned Counsel appeared for the appellants-defendants is that may be the defendants committed default in performance of their part of the agreement and that the agreement also may say that in the case of such default the plaintiffs will be entitled to get possession of the land, but by virtue of the protection given to the defendants under the Cultivating Tenants Protection Act, the court cannot pass a decree for possession against the defendants. It is submitted that the Cultivating Tenants Protection Act confer benefits on the tenants and those benefits are conferred as a matter of public policy and therefore the tenants themselves cannot contract out the statutory benefits conferred on them under the Act nor can they themselves waive those rights.
7. Per contra Mr. T. Sundaravaradan, learned Counsel appearing for the respondents-plaintiffs contends that no doubt the defendants were cultivating tenants but in the suits filed against them are parties compromised the disputes between them and in pursuance of that compromise an agreement of sale Ex.A.1 was entered into and therein the respective rights and obligations of the parties as regards possession also have been stated and thus they have substituted themselves a new position of relationship of seller and purchaser between them for their old position of landlord and tenant relationship and therefore from the date of the said agreement the defendants where no longer tenants and their possession is referable to the agreement and in their capacity as purchasers and not as tenants and consequently it is not open to them to claim any rights under the cultivating tenants protection Act. Mr. R. Sundaravaradan further submits that it is the case of surrender of possession to the plaintiffs and then the plaintiffs permitting the defendants to continue their possession as per the terms of the new agreement and it is not a case of contracting out of the statutory right or waiving by the defendants.
8. After hearing the arguments of both sides it is quite clear to me that the arguments of Mr. R. Sundaravaradan on behalf of the respondents-plaintiffs is the correct position of law. True, the defendants were cultivating tenants but it cannot be said that it is not open to them to surrender possession to the plaintiffs-landlords even if they (defendants) wanted to do so considering, the benefits they would get by that. Contracting out or waiving the statutory rights by the tenant himself in respect of possession is giving up of one's rights conferred under a statute to his benefit. But surrender of possession is different. Surrender of possession is voluntarily vacating. When the tenant voluntarily vacates it is not contracting himself out or waiving his statutory rights. In the present case it must be remembered that there were suits filed against the defendants' while they were tenants and as an outcome of compromise between the parties in those suits the suit agreement Ex.A.1 came to be entered into and as per the recital in this agreement the defendants have been allowed to continue in possession from the date of agreement and in case they fail to perform their obligations under the contract they must surrender possessions. It is also provided for recovery of damages from them for their unlawful use and occupation if they do not vacate. It is clear from these that the defendants are in possession under the agreement and they are not in possession as cultivating tenants. It is manifest from the words in the agreement.
that the defendants' possession as tenants have come to an end and their possession from that day begins under the agreement. It must be remembered that it is nobody's case that even after the agreement the defendants paid any rent to say that inspite of the agreement (hey continued to be tenants. For surrender of possession physical delivery is not always necessary; it can be by implications also. Under Section 111(f) of the Transfer of Property Act a lease of immovable property can be determined by implied surrender also.
9. From the above discussions I hold that the defendants though they continue in possession even after the agreement they have surrendered their possession as tenants impliedly and their present possession is only by virtue of the compromise of the agreement as purchasers. Therefore there is no merit in the contention that the tenants cannot contract out themselves or waive the statutory rights and therefore the defendants must be held to be in possession of the property only as tenants and hence they are entitled to the benefits under the Cultivating Tenants Protection Act.
10. Mr. R. Sundaravardan, learned Counsel for the respondents-plaintiffs in support of his contention relied on Annamalai Goundan v. Venkatasami Naidu and Ors. (1959) 1 M.L.J. 301, in which after the expiry of the period of lease a registered agreement was entered into between the parties where by the lease properties were to be sold to the lessee. Balance of sale consideration was tendered but the landlord improperly declined to accept the same and sale deed was not executed. An application for eviction was made by the landlord under the Tamil Nadu Cultivating Tenants Protection Act 25 of 1955. It was held that the moment possession is taken or continued under the contract of sale the original relationship of landlord and tenant ceases to exit and the landlord cannot take advantage of the provisions of the Act 25 of 1955 to file an application for eviction. The principle laid down in this case is that once landlord and tenant enters into an agreement of sale the original relationship of landlord and tenant ceases. However Mr. T.R. Mani, learned Counsel for the appellants-defendants contends that in this Judgment the lease period was already over and it was then the agreement for sale was executed and therefore the new relationship was created. Further it is the landlord who has filed the suit taking advantage of the provisions of the Cultivating Tenants Protection Act. Even after the expiry of the period of lease under the provisions of the Cultivating Tenants Protection Act the tenants will have the right to continue in possession. Whatever may be the position in this judgment case, in the instant case, as mentioned above, the inherent evidence in Ex.A.1 agreement of sale clearly shows that on the date of agreement possession was surrendered by the tenants and from then on they were in possession under the terms of the agreement.
11. Another decision cited by the learned Counsel is C. Palanasami Chetti v. Muruganna Gounder (1979) I M.L.J.470. In this the plaintiff filed a suit for specific performance of an agreement of sale Ex.A.8 executed in his favour by the first defendant agreeing to sell an agricultural land. Pending the agreement the first defendant sold that land under Ex.A.1 to the second defendant who was a tenant of that land. It was contended by the second defendant that he was entitled to be in possession as a tenant and was entitled to the protection and benefits of the Tamil Nadu Cultivating Tenants Protection Act. S. Padmanabhan, J. held that from the date of Ex.A.1 sale deed the second defendant's possession ceased to be that of a tenant and the relationship of landlord and tenant, if any that existed on that date ceased to be in force. In the circumstances, from the date of Ex.A.1, the possession of the second defendant could be traced only to Ex.A.1 sale deed. Hence it would not be open to the second defendant to fall back upon his possession as a tenant. But Mr. T.R. Mani, learned Counsel would submit that in this decision since the property has been sold to the tenant the tenancy got merged in the sale and the tenant became the absolute owner of the land and therefore no question of continuing as a tenant arises. I find some force in this argument of the learned Counsel and this decision may not be applicable to our case.
12. In Kamalam Bai And Others v. Mangilal Dulichand Mantri 4 S.C.C. 585, the landlord filed an application under Clause 13(3)(i), (ii) (iii) and (iv) of the C.P. and Berar Letting of Houses and Rent Control Order, 1959 for permission to issue notice determining the respondent's lease of the petition premises on the grounds of eviction mentioned in the application. In that a compromise was entered into and that compromise was produced in the Court and the Rent Controller filed the same. In that compromise petition the respondent-tenant expressly admitted the claim of the applicant-landlord for termination of tenancy and surrendering the tenancy rights and undertook to vacate the premises on or before March 31, 1974. But as undertaken the tenant did not vacate and there were numerous subsequent proceedings. During one stage of the execution of eviction order passed it was contended by the tenant that the decree was a nullity since no permission to terminate the tenancy was obtained as required in the Act. It was contended for the landlord that since the tenant has consented to a decree and obtained time for vacation he has surrendered possession and therefore no permission for terminating tenancy is necessary. The Supreme Court accepted the contention of the landlord that the decree which was to be executed is not a decree for eviction on the basis of determination of the lease by the landlord but is a decree passed on the basis of the lease having been determine by the tenant himself by surrender. The Supreme Court further held that in fact Clause 13 contemplates a permission for determination of the lease but where the tenant agrees to determine the lease himself by mutual consent the question of permission does not arise. The Supreme Court has also quoted its another decision rendered earlier in Shah Mathuradas Maganlal And Co. v. Nagappa Shankarappa Malage A.I.R. 1976 S.C.1565, wherein it has been held that implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor". It is further held that. It is thus clear that when the parties surrendered the tenancy and substituted it by a fresh arrangement merely because physically the possession was not handed over is not of much consequence". From this decision of the Supreme Court it is very clear that tenancy can be terminated by surrender of possession by the tenant himself and for the surrender the property need not be physically handed over and the surrender can be implied from the circumstances of the case. This being the case in a surrender of possession by the tenant no question of any contracting out himself of his rights or waiver of his rights under any statute arises. The Supreme Court has also held to the effect that when a lease is already determined as a result of surrender such surrender cannot be assailed as being contrary to public policy just to bypass the statutory provisions.
13. Mr. T.R. Mani, learned Counsel for the appellants-defendants cited the following authorities in support of his contention in the case. Kallu And Another v. Diwan I.L. R. 24 All. 487, is a case in which the lessee executed a mortgage in favour of the landlord. There it was held that the lease is only kept in abeyance and will again revert on the termination of the mortgage. Certainly this decision will not be applicable to the facts of our case.s
14. In S.F. Munuswami Gounder And Others v. Erusa Gounder , it was held that under Section 53-A of the Transfer of Property Act possession of the transferee can be protected even in the absence of grant of title. But such protection can be sought for depending upon the facts of each case. In our case the defendants have undertaken under the agreement to surrender possessions in case they commit default of the terms of the agreement.
15. In S. Duraisami Nadar v. Nagammal (1981) 1 M.L.J. 35, G. Ramanujam, J. has held that a sale agreement does not create any interest in the immovable property and therefore the tenancy right will not be altered. That is true. But in our case from the terms of the agreement we have found above that the tenant has surrendered possession and therefore no question of altering any tenancy right arises.
16. In Murilidhar Agarwal v. State of U.P. , Section 3(1) of the UP. (Temporary) Control of Rent and Eviction Act, 1947 prohibiting the institution of suit by the landlord against the tenant without the permission of the District Magistrate is held to be based on public policy and it is intended to protect the weaker sections of the community with a view to ultimately protect the interests of the community in general by creating equality of bargaining power, and the tenant could not have waived the benefit of the provision. But this does not apply to the case where the tenant voluntarily surrenders possession.
17. Boddana Ramudu v. Sasapu Sanyasi Naidu (1940) I M.L.J.668 : A.I.R. 1941 Mad 97, is a case in which the tenant in ignorance of his right agreed to deliver his possession after the expiry of the term of mortgage. It was held that the tenant is not estopped from denying the landlord's right to claim possession. Such is not the facts in the instant case.
18. Similar is the case in Varada Bongar Raju v. Kirthali Avatharman . Similar points as in the above cases were laid down in the following citations relied on by the learned Counsel for the appellants-defendants:
1. Waman Shrinivas Kini v. Ratial Bhagawandas and Co. ; 2. Air India v. Nergesh Meerza , and 3. M/s. Shalimar Tar Products Ltd v. H.C. Sharma . These decisions, for the reasons stated above, will not be of assistance to the appellants-defendants.
19. In the result, therefore, the concurrent Judgments of the Courts below are confirmed and the second appeal is dismissed with costs.