Madras High Court
Sundara Rajan And Anr. vs Sundaramoorthy on 11 January, 1993
Equivalent citations: (1993)1MLJ640
JUDGMENT Abdul Hadi, J.
1. Plaintiffs are the appellants in this second appeal. They filed the suit O.S. No. 1951 of 1978, on the file of the District Munsif of Cuddalore, for declaration of their title to the suit property and for possession thereof. They claim title under Ex.A-3 sale deed dated 23.8.1977. The trial Court has upheld their title and also held that the alleged prior sale agreement in relation to the suit property between the defendant-respondent and the plaintiffs' vendor Krishnamoorthy Rao, is not true and that the defendant is a tenant of the suit property. So saying, the trial Court decreed the suit for declaration of title and possession and directed the defendant to remove the superstructure put up by him on the suit land within two months.
2. However, in the appeal filed by the defendant, viz., A.S. No. 122 of 1981 on the file of Sub Court, Cuddalore, the defendant was allowed to file additional written statement. There, he pleaded that he became a tenant of the suit site under the above said Krishnamoorthy Rao and put up the superstructure thereon. He also claimed benefits under the Tamil Nadu City Tenants Protection Act (hereinafter referred to as 'the Act') and sought to purchase the suit site under Section 9 of the Act. In view of the said additional written statement, the following fresh issues were framed in the appeal:
1. Whether the defendant is entitled to claim the benefits under City Tenants' Protection Act?
2. Whether the defendant's claim for such benefits under City Tenants' Protection Act is in time?
3. Whether the defendant is entitled to the value of the superstructure and if so to what extent?
The lower appellate court, after stating that the parties did not let in fresh oral evidence on the said issues, came to the following conclusions: The defendant is a tenant of the suit site, let into possession by the abovesaid Krishnamoorthy Rao in 1968 and he put up the superstructure therein in 1968-69. The suit is not maintainable since the notice prescribed under Section 11 of the Tamil Nadu City Tenants Protection Act, has not been given by the plaintiffs to the defendant before filing the suit. The claim for the benefits under the said Act is in time. The abovesaid third issue does not arise.
2-A The first appellate court has thus held that the plaintiffs are not entitled to get possession, though they are entitled to the declaration of their title. The result is that the first appeal has been allowed in part, granting only a decree for declaration of title and not possession. Since possession decree was not given, the plaintiffs have preferred this second appeal.
3. The learned Counsel for the plaintiffs-appellants has initially contended that the defendant has denied the title of the plaintiffs to the suit property by setting up a sale agreement in his favour and that hence he is not entitled to the benefits of the abovesaid Act. He also cited the decisions in Bhargaravakula v. Amnachala (1990)1 L.W. 46, Subba Rao v. Krishna Rao and Bhargaraavakula v. Chakravarthi (1992)2 M.L.J. 83 in this regard.
3-A. I shall first deal with this contention. The claim on the footing that the defendant is an agreement Ider for purchasing the suit property, may be a denial of landlord and tenant relationship. Such a repudiation of the said relation-ship may also entail forfeiture under Section 111(g) of the Transfer of Property Act. In Brij Kishore v. Mushtari Khatoon , also it was so held. But he said Section 111, which deals with the modes of determination of tenancy, says in the said Clause (g) that in the case of such forfeiture, for the determination of the lease, landlord should also give notice determining the lease. No such notice has been given in the present case. I may also point out that it has also been held that denial of title of an assignee of the original lessee would not work forfeiture of the lease (vide: Abdullah v. Mohd. Muslim A.I.R. 1926 Cal. 1205.
3-B. But the question here is not whether the lease in favour of the defendant has been determined in accordance with Section 111 ) of the Transfer of Property Act, but whether the setting up of the abovesaid case under a sale agreement would disentitle the defendant from claiming the benefits of the City Tenants' Protection Act, when in the first appeal, he has impliedly atleast, given up his original case and accepted the position that he is only a tenant, Bhargaravakala v. Arunachala (1990)1 L.W. 46 (D.B.), has held, taking into account the relevant definition of the term 'tenant' under the abovesaid Act, that the tenant who wants to claim the benefits of the abovesaid Act must be a person liable to pay rent and such a liability should be under a tenancy agreement, express or implied. No doubt, as per his original plea, in his original written statement, the defendant would not fulfil the above requirements mentioned in Bhargaravakula v. Arunachala (1990)1 L.W. 46 (D.B.). But, by filing the abovesaid additional written statement, he has given up his said original stand and accepted the position that he is a tenant. An appeal is only a continuation of the suit. In the first appeal, the above different plea taken up by him, had been allowed to be raised and the first appellate court proceeded with the case further, only on the footing of the abovesaid altered plea. Yet, can it be said that in view of his original plea, he cannot have the benefits of the said Act, relying on the abovesaid decisions, including Bhargaravakula v. Arunachala (1990)1 L.W. 46 (D.B.)?
3-C No doubt, in this connection, the learned Counsel for the appellants also argues that the abovesaid additional written statement should not have been entertained since the defendant, by the said statement, sought to set up a different and inconsistent case. But, I am unable to agree with this contention since the very plea of the plaintiffs themselves is that the defendant is a tenant and so, the defendant has only adopted the case of the plaintiffs and sought to claim the benefits of the . abovesaid Act on the footing that he is a tenant.
3-D. In this connection, I may also deal with one other argument of the learned Counsel for the respondent, in reply to the argument of the learned Counsel for the appellants, that, because of denial of title, the defendant cannot claim the benefits of the said Act. The said reply argument is that in the present case, the plaintiffs are not the original lessors of the defendant, but they are subsequent purchasers of the suit property from the said original lessor and that there is no estoppel with reference to such a purchaser under Section 116 of the Evidence Act, when the defendant has not attorned the tenancy in favour of the plaintiffs. Therefore, according to the said counsel for the respondent, the abovesaid decisions like Bhargaravakula v. Arunachala (1990)1 L.W. 46 (D.B.), cannot be relied on by the plaintiffs to contend that the defendant is not entitled to claim the benefits of the abovesaid Act. Though initially I was inclined to accept this argument, later, on a deeper investigation, I have to hold that this argument cannot be accepted. On the assignment of the interest of the original lessor in favour of the plaintiffs, in view of Section 109 of the Transfer of Property Act, even in the absence of any fresh agreement between the plaintiffs and the defendant, the assignees-plaintiffs became entitled to the rights, which the original lessor (vendor of the plaintiffs) possessed; a fresh attornment by the defendant to the assignees-plaintiffs, is not necessary (vide Brij Bihari v. Deoki Devi . Therefore, I am of the view that the abovesaid decisions like Bhargaravakula v. Arunachala (1990)1 L. W. 46 (D.B.) cannot be said to have no application to the present case. Anyway, since the defendant has impliedly at least given up his original plea in his original written statement, and admitted in his additional written statement that he is a tenant under the plaintiffs, as pleased by the plaintiffs themselves, I think be cannot be denied the right to claim benefits of the abovesaid Act.
4. Nextly, as already pointed out, the lower appellate Court has dismissed the suit solely on the ground that the abovesaid Section 11 notice was not given by the plaintiffs to the defendant prior to the filing of the suit. In this connection I posed the question to the learned Counsel for the respondent whether it cannot be construed that there is a waiver by the defendant of the abovesaid notice, in view of the fact that he has chosen to file the abovesaid additional written statement, claiming to purchase the suit land under Section 9 of the abovesaid Act. This Court has held in more than one decision that filing of application under Section 9 of the Act would amount to such a waiver of notice under Section 11 of the Act (vide Vedachala Naicker v. Durai Mudaliar Natesa Naicker v. Vedagiri . No doubt, in the present case, there is no application as such, filed under Section 9 of the Act. But, since it has also been held that even the written statement which claims right under Section 9 could be treated as such an application, the question in the present case is whether there is a waiver of Section 11 notice by the defendant, by his claiming the right under Section 9 in his abovesaid additional written statement. It has also been hold in Balasubramania Iyer v. S.P. Muthu Kumaraswamy Devasthanam (1983)1 M.L.J. 280, that since the abovesaid notice under Section 11 is for the benefit of the tenant, he could waive the said notice.
5. In answer to my abovesaid question, the learned Counsel for the respondent drew my attention to Sri Agatheeswarar P. V. Pemmal Devasthanam v. Narasimhan (1982)2 M.L.J. 70 (D.B.) and Lakshmi Narayan Guin v. Niranjan Modak . In Sri Agatheeswarar P.V. Perumal Devasthanam v. Narasimhan (1982)2 M.L.J. 70, also it was held that notice contemplated by Section 11 could be waived by the tenant either expressly or impliedly by his conduct. In the said case, there was an application under Section 9 to purchase the suit site therein. But that was preceded by filing a written statement, questioning the maintainability of the suit without a proper notice by the landlord. In that context, the said decision distinguished the abovesaid decisions in Vedachala Naicker v. Duraiswami Mudaliar Natesa Naicker v. Vedagiri , on the ground that in those two cases, application under Section 9 was there "without any demur as regards the non-compliance with Section 11." In Sri Agatheeswarar P.V. Perumal Devasthanam v. Narasimhan (1982)2 M.L.J. 70 (D.B.), in the written statement that preceded Section 9 application, the question of maintainability of the suit without proper notice, had been raised; the Division Bench held that there was no waiver. In the present case also I find that even in the original written statement filed by the defendant, the following plea was raised in paragraph 4:
In any event, the suit is not maintainable for want of valid notice.
Therefore, I think Sri Agatheeswarar P.V. Perumal Devasthanam v. Narasimhan (1982)2 M.L.J. 70 (D.B.) applies to the present case and I cannot hold that there is waiver of notice under Section 11, by implication.
6. No doubt, the said learned Counsel also points out that in the same Sri Agatheeswarar P.V. Perumal Devasthanam v. Narasimhan (1982)2 M.L.J. 70 (D.B.), it has also been held that waiver is a question of fact and ought to be pleaded and proved, but that there is no plea by the plaintiff regarding the said waiver. But, as already stated, there is plea by the defendant in his additional written statement that he is entitled to the benefits of the abovesaid Act and he is willing to purchase the site at a value that may be fixed by the Court. However, despite this plea, I have already held that there is no waiver by implication.
7. The other decision cited by the learned Counsel for the defendant, viz., Lakshmi Narayan Guin v. Niranjan Modak does not actually deal with the question of waiver at all. There was also no claim at all to purchase the suit site. The case arose under West Bengal Premises Tenancy Act. How far the said Act is similar to the abovesaid Tamil Nadu City Tenants Protection Act is also not quite clear since the said Act as such was not produced before me. However, paragraphs 6 to 9 of the said judgment were relied on by the said counsel. In these paragraphs, no doubt, it was observed that where the decree for eviction is passed by the trial Court against the tenant under the provisions of the Transfer of Property Act and the statute giving protection to tenants against eviction is extended to the concerned area during the pendency of appeal against the decree for eviction, the appellate court is bound to take into account the change of law and extend its benefits to the tenant and consequently set aside the decree of the trial court and dismiss the suit. Section 13 of the said West Bengal Act is said to provide for a qualified protection to the tenant against eviction inasmuch as it injuncts the court from passing an order or decree in landlord's suit for recovery of possession except on the limited grounds detailed in Sub-section (1) thereof and that Sub-section (6) therein provides that no suit for the recovery of possession of any of the grounds mentioned in Sub-section (1) can be filed by the landlord unless he has given to the tenant one month's notice expiring with the month of tenancy. The High Court therein found that the notice for eviction given was only of less than one month and that, therefore, there was no compliance with the abovesaid Section 13(6). Consequently, the High Court held that the suit was incompetent. The said decision of the High Court was no doubt approved by the Supreme Court. But, as already stated by me, the question of waiver was not considered at all by the Supreme Court in the said case, nor was there any claim to purchase the suit site in the said case. So, that decision will have no application to the abovesaid question posed by me, based on the claim for purchase of the suit site, made by the defendant.
8. No doubt, the learned Counsel for the appellant also argues that no notice under Section 11 at all is necessary since the suit was filed even prior to Act 2 of 1980 which amended the parent Act. (City Tenants Protection Act). In this connection, he cited the decision in Abdul Shukur Sahib v. Geethammal 1977 T.L.N.J. 125. No doubt, there, the tenant resisted the landlady's suit for ejectment on the ground that the landlady has not issued to him the abovesaid Section 11 notice. The courts below therein rejected the contention and decreed the suit, which was instituted in 1972. The abovesaid Act was extended to the municipal town in question therein on 8.1.1973 and the argument was that the suit though pending on 8.1.1973 should nevertheless have been dismissed, the moment the notification rendered Section 11 applicable to the property. In this connection, Section 10 of the said Act was also pointed out which rendered applicable some of the beneficial provisions of the Act even to pending suits. However, Balasubramaniam, J., who heard the said case, did not accept the said argument and held that in view of the fact that the abovesaid notification came into force only pending the suit, the abovesaid required notice was not necessary. In that connection the learned Judge also observed thus:
We cannot imagine the section saying, expect you to have complied with the conditions even earlier. That would be. asking landlords to ride the Time Machine backwards, to recapture moments which are past recapturing. The law does not require, or even expect any man or woman to do the impossible. On a reading of Section 11 of the Act and the Government Notification in this case it would not be held the suit by the landlady to be not maintainable.
9. However, the learned Counsel for the respondent, in reply, relies on the above referred to observations (vide paragraph 7) in Lakshmi Narayan Guin v. Niranjan Modak , itself and argues that in view of Lakshmi Narayan Guin v. Niranjan Modak , Abdul Shukur Sahib v. Geethammal 1977 T.L.N.J. 125, is no longer good law. At any rate, I am bound by the Supreme Court decision and so I have to hold that Section 11 notice is necessary even in the present case. When admittedly such a notice has not been given, the appellants cannot have possession decree. 10. Accordingly the present second appeal is dismissed. However, in the circumstances of the case, no costs.