Madras High Court
Rajammal (Died) And Ors. vs The Idol Of Sri Thanthonneeswaraswami ... on 16 November, 1992
Equivalent citations: (1993)1MLJ387
JUDGMENT Abdul Hadi, J.
1. The defendant is the appellant. She having died pending this second appeal, her legal representatives have been brought on record as appellants 2 and 3. The respondent, the idol of Sri Thanthoneeswarasami by its hereditary trustee, K. Appathurai, filed the suit O.S. No. 430 of 1978 on the file of the District Munsif of Tiruchirapalli for possession of the suit land after removal of the superstructure put up therein by the defendant and for a sum of Rs. 144. The suit was dismissed so far as the possession relief is concerned, but decreed only with reference to the abovesaid money claim for Rs. 144, which was claimed as arrears of rent at the rate of Rs. 4 per month, that is for three years, till date of the plaint, viz., 27.3.1978. The case of the plaintiff is that suit house (with land) was leased out to the defendant while the case of the defendant is that only suit vacant site was leased out and the defendant put up the superstructure therein.
2. The defendant mainly claimed benefits under the Tamil Nadu City Tenants' Protection Act, 1921 (hereinafter referred to as 'the Act'). The trial Court after holding that the lease was only of the site and that the superstructure was that of the defendant, held that the defendant was not. entitled to the benefits of the Act on the ground that the defendant did not establish that the tenancy began prior to 1955. But it held that the defendant's possession was protected in view of the decision in S. Palanivelu v. KVaradammal (1978)1 M.L.J. 212. On that reasoning, the possession relief was negatived by the trial Court. Further, in the appeal filed by the plaintiff in AS. No. 95 of 1981, on the file of the lower appellate court, the lower appellate court set aside the judgment and decree of the trial Court and allowed the appeal, directing the defendant to deliver possession of the suit land after removing the abovesaid superstructure on the land. The lower appellate court did not deal with the question of the abovesaid arrears at all The lower appellate court did not also deal with the question whether the defendant was entitled to the benefits of the Act, but only held that as a leasee, the defendant was bound to deliver possession of the suit site, after removing the superstructure.
3. Aggrieved by the said decision of the lower appellate court, the defendant has preferred the abovesaid second appeal. It may also be stated that the plaintiff did not prefer any appeal or cross-objection regarding the abovesaid arrears of rent.
4. After the arguments were over in this appeal and just before the judgment was reserved, the appellant filed C.M.P. No. 15259 of 1992 to receive two documents, one dated 18.9.1979 and another dated 21.11.1979, as additional evidence in this appeal. But, this petition is absolutely with out any merit, because the proposed documents are of the year, 1979, one of them being an order passed by the Additional Collector, Tiruchirapalii on 18 9.1979 and the other a memo dated 21.11.1979 of the Tahsildar. They could have easily filed them even while the suit was pending, since the suit was disposed of only on 19.3.1982. Not even in the first appeal they were filed with a petition seeking reception of them. The affidavit in support, of the present petition also does not say anything as to why these documents were not filed in any of the courts below. Therefore, there is no justification for receiving these documents under Order 41, Rule 27, C.P.C. Hence, this application is dismissed in limine.
5. Even at the outset, I may state that the above referred to S. Palanivelu v. K. Varadammal (1978)1 M.L.J. 212, which appears to be based on Section 51 of the Transfer of Property Act will have no application to the present case since even the defendant admits that she is only the lessee. The initial dispute was no doubt whether the lease was of the site only or of the site with the building thereon The Courts below have concurrently held that the lease is of the site only. So, the argument of both the counsel in this second appeal proceeded only on the basis that the lease was of the site only. Further, I should also state that the trial court was also in error in assuming that only to tenancies prior to 1955, the Act applies. In view of the amendment to Section 1(3) of the Act by the amendment Act of 1979, which came into force from 3.3.1980, the Act will be applicable even to a tenancy which came into being prior to the said amendment. There is also no dispute that the abovesaid tenancy came into being prior to 3.3.1980.
6. So, the only main argument that is addressed before me by the learned Counsel for the appellant is that the trial Court erred in concluding that the defendant is not entitled to the benefits of the Act and that the lower appellate court erred in holding that the defendant is bound to deliver possession of the suit site, without deciding the abovesaid question whether the defendant is entitled to the benefits of the Act. According to the said learned Counsel, the defendant is entitled to purchase the suit site as per Section 9 of the Act and she cannot be evicted from the suit site. No doubt, the defendant has not filed any separate application under the said Section 9 for the purchase of the suit land. But, according to the learned Counsel, in view of the following averment in the written statement, the said written statement itself should be treated as the application under the said Section 9:
The property leased was only a vacant site. The defendant's husband took the vacant site on lease and put up superstructure at his own cost....The defendant's husband became a tenant of the suit vacant site 40 years back....The defendant has been paying the Municipal tax for number of years. This defendant after the death of her husband is the owner of the superstructure and has been in possession and enjoyment of the same for a long period of over 40 years. Thus, the defendant is entitled to the benefits of the City Tenants' Protection Act. The plaintiff has only to sell the suit site to this defendant according to the market value as per the provisions of the City Tenants' Protection Act.
In this connection, the learned Counsel relied on the decision in Mouna Mutt Kuttalai Estate v. Andiappan 82 L.W. 77 (S.N.). Dealing with the question whether a separate written application is necessary under the abovesaid Section 9 for claiming right to purchase given thereunder, Ramaprasada Rao, J. (as he then was) observed in the abovesaid decision as follows:
It need not be in writing. There is no form prescribed for it. It, therefore, follows, that if the tenant brings to the notice of the Court, within the prescribed time, that he intends making a request to gain the statutory benefit, it is sufficient compliance of the content of Section 9. An unreserved lodging of the request for the grant of the benefits and protection under the Act through the written statement in a suit in ejectment filed by the landlord, is enough to satisfy the requirements of law. It would be too technical a view to take, as to insist upon a written formal application to project a statutory right, when no such mandate is there under the Act and when otherwise, the intendment of the law can be satisfied by making a request in an acceptable manner and bringing the matter to the notice of the court.
In this decision, an earlier decision in Raghava Naicker v. Abdul Hussain Hazarally and Co. 1936 M.W.N. 1096, has also been relied on. The learned Counsel seeks to further point out from the following notes recorded in the notes paper of the trial Court that the written statement has been filed within the abovesaid one month's time:
F. hearing: 8.6.78.
Defendant absent. Summons affixed. Fresh summons through post by 30.6.78.
30.6.78 : Not returned. Thiru N.C. Vellaya files vakalath for defendant. Writ ten statement by 14.7.78.
14.7.78 : Written statement time extended till 28.7.78. (Friday).
28.7.78 : Written statement filed.
7. On the other hand, the learned Counsel for the respondent-plaintiff contends that the abovesaid decisions cited require reconsideration and that the defendant having not filed a separate application under Section 9 of the Act, cannot claim benefits of the Act.
8. So far as the abovesaid decisions, I think they lay down the correct law and I do not think that any reconsideration is necessary. However, the other question is, whether the abovesaid written statement, if that is to be treated as an application under Section 9, has been filed within the abovesaid one month's time prescribed under Section 9. From the abovesaid notes paper it is not known when actually, service was effected and the defendant received the suit summons. No doubt, the order on 8.6.1978 was "fresh summons through post by 30.6.78". The note made on 30.6.1978 only states "Not returned. Thiru N.C. Vellaya files vakalath for defendant...." Thus, though on 30.6.1978, vakalath was filed for the defendant, it is not known from the abovesaid note, when actually the defendant received the suit summons. It cannot be taken, as contended by the learned Counsel for the appellants, that service was effected on 30.6.1978 only. The direction was no doubt to serve the summons "by 30.6.78". But, from that alone, it cannot be concluded that the service was effected only on 30.6.1978. No doubt, if the service was effected on 30.6.1978 filing of written statement on 28.7.1978 will be within time, it being within the one month period prescribed under Section 9 of the Act. But, if the service was effected prior to 27.6.1978, then, the "application" contained in the written statement will be out of time. So, unless the learned Counsel for the appellant is able to establish before me that the written statement was filed within the prescribed one month's period, I cannot hold that the application under the abovesaid section has been filed within time. Therefore, I cannot hold that the defendant is entitled to purchase the suit land as per Section 9 of the Act.
9. This apart, the learned Counsel for the respondent submits that the defendant has denied the title of the plaintiff and hence also disentitled to the benefits of the Act. For this he relies on Bhargavakula Nainargal Sangam v. Arunachala Udayar (1990)1 L.W. 46 (D.B.). So far as the factum of denial of title, it is not there in the written statement or in the evidence recorded. But the learned Counsel for the respondent points out the following passage from the trial court's judgment:
In order to deprive defendant of any benefits under City Tenants' Protection Act, counsel for plaintiff pointed out that defendant had preferred to deny even the title of plaintiff. It is true that if a tenant denied the title of a landlord in the site then the former will not be entitled to the benefits of City Tenants' Protection Act. But in this case no such denial is able to be found on the available records. It is only in the dismissed petition to receive the reply statement defendant had so averred.
So according, to the learned Counsel for the respondent, the trial court itself finds that there was such a denial of title by the defendant in some document filed into Court by the defendant. The said document was actually petition to receive additional written statement, which was sought to be filed by the defendant and not a petition to receive the reply statement as stated in the abovesaid passage of the trial court. The learned Counsel for the respondent also produced before me a copy which was served on the respondent of the said additional written statement and of the supporting affidavit to the application for reception of it. In the abovesaid additional written statement it is stated thus:
The plaintiff has no title to the suit site itself. Government is the owner. On this ground as well the suit has got to be dismissed.
In the supporting affidavit also it has been stated thus:
I have to deny the title of the plaintiff also the suit site....If I am not allowed to file additional statement, I will be put to great loss.
10. On the other hand, the learned Counsel for the appellant argues that what is found in the abovesaid additional written statement or the supporting affidavit thereof cannot be taken note of in deciding the suit, particularly when there is no such denial of title either in the written statement filed or in the deposition given by the defendant. According to the said counsel, what has been said in any interlocutory application cannot be taken note of in the trial of the suit. The said counsel also argues that the abovesaid Bhargavakula Nainargal Sangam v. Arunachala Udayar (1990)1 L.W. 46, cannot be applied to the present case since that decision related to a case where the denial of title was prior to the filing of the suit. On the other hand, the learned Counsel for the respondents draws my attention to the decision in M. Subbarao v. P.V.K. Krishna Rao , which was relied on in Bhargavakula Nainargal Sangam v. Chakravarthi (1992)2 M.L.J. 83, by this Court, to contend that even if the denial is subsequent to the suit, that is, in the course of the proceedings, the tenant will not be entitled to the benefits of the Act.
11. I have given due consideration to the abovesaid submissions. First of all, I am unable to accept the proposition of the learned Counsel far the appellants that what is contained in the abovesaid additional written statement and the supporting affidavit to the application should not be taken note of in deciding the suit. The said additional written statement, though was not actually received in view of the dismissal of the application for its reception, as stated by the trial court, yet the affidavit filed in support of the said application, cannot be said to be not a part of the record in the suit. There in a sworn statement, the defendant has stated that she has denied the title of the plaintiff to the suit site and if she is not allowed to file the said additional written statement, she would be put to great loss. So, from the said affidavit itself it is clear that the defendant, has denied the title of the landlord-plaintiff.
12. The other contention of the learned Counsel for the appellant that the abovesaid decision in Bhargavakula Nainargal Sangam v. Arunachala Udayar (1990)1 L.W. 46, is not applicable to the present case, also does not appeal to me. May be in the abovesaid decision, the denial of title was prior to the suit. But, I am of the view that the principle, on which the abovesaid ruling was given in the abovesaid case would apply even to a case where the denial of title is subsequent to the commencement of the suit. Further, the question that was referred to the abovesaid Division Bench, which decided the abovesaid case is only in general terms, viz. "Whether a tenant in respect of a vacant site, who denies title of the landlord, is entitled to the benefits of the Madras City Tenants Protection Act." To the said question, the answer of the Division Bench was in the negative and the Division Bench finally concluded as follows:
Consequently, we hold that the benefits under the Act can be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be the owners of the properties or set up title in others.
13. The principle under which the said decision was given is stated as follows:
The Act in question is intended to give protection against the eviction of tenants, who have constructed buildings on others' land so long as they pay rent for their lands. Therefore, the basic requirement for invoking the provisions of the Act is that ownership and tenancy rights must vest in different persons. Once a person claims ownership in himself, the question of tenancy does not arise for consideration. We have already referred to the definition of tenant under Section 2(4) of the Act, wherein it is specifically mentioned that the benefit would accrue only to a tenant whose tenancy agreement is determined. A cumulative effect of the provisions would lead to the inference that protection is available only to the statutory tenants whose possession is protected under the provisions of a statute. We are unable to find any provision in the Act to consider the tenant who has denied the title as a statutory tenant. We have come to the conclusion from the preamble and the definition of "tenant" found in the Act that the benefit is intended to be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be owners or set up title on others. In this connection, it is unnecessary to enter into discussion about the provisions contained in Section 111(g) of the Transfer of Property Act.
The same principle would apply even to a case where the tenant denies title subsequent to the filing of the suit. No doubt, the learned Counsel for the appellant originally also sought to be build up an argument based on Section 111(g) of the Transfer of Property Act, but subsequently gave it up on the footing that it has no bearing. It is also so mentioned in the abovesaid Bhargavakula Nainargal Sangam v. Arunachala Udayar (1990)1 L.W. 46.
14. Further, the other decision cited by the learned Counsel for the respondent also expressly lays down that even if the denial is in the course of the proceedings, the tenant who makes such a denial will be disentitled to the benefits of the Act. That decision is the above quoted Bhargavakula Nainargal Sangam v. Chakravarthi (1992)2 M.L.J. 83 and the relevant observation therein is as follows:
In the present case, the denial of title was even prior to the institution of the suit in the reply notice issued by the tenant. Even if the denial is made in the course of the proceedings for eviction, it is held by the Supreme Court recently that such a denial would be a ground for eviction. (vide: Subbarao v. Krishna Rao ).
This case is also under the City Tenants' Protection Act, though the above referred to Supreme Court decision relied on therein relates to Tamil Nadu Buildings (Lease and Rent Control) Act. The argument of the learned Counsel for the appellants in this connection is two fold. One is, what has been held under the Rent Control Act, where denial of title is one ground for eviction, cannot be applied to the present situation under the City Tenants Protection Act, and consequently according to him, the abovesaid observation of the learned Judge, who decided the abovesaid Bhargavakula Naimrgal Sangam v. Chakravarthi (1992)2 M.L.J. 83, is only obiter because his observation relating to a case where the denial is after the suit, did not relate to the facts of the case in hand before him. Anyway without going into this question any further, in view of my earlier reasoning I hold that the principle on which Bhargavakula Nainargal Sangam v. Arunachala Udayar (1990)1 L.W. 46, held that the denial of title would disentitle the defendant to get the benefits of the Act, would equally apply to a case where denial of title is after the suit also.
15. Thus, so far as the abovesaid main argument of the learned Counsel for the appellant I hold that the defendant has no right to purchase the suit land under Section 9 of the. Act. No doubt, the lower appellate court erred in not considering the abovesaid question whether the defendant is entitled to the benefits of the Act. Yet, instead of remanding back to the lower appellate court, as pleaded by the learned Counsel for the appellants, in view of the fact that the second appeal itself has been pending in this Court for about ten years and in view of the fact that there is no necessity to call for any fresh factual finding, but there is sufficient evidence to pronounce judgment on that question I have myself decided the said question as stated above. Section 103, C.P.C., also enables me to do so.
16. The learned Counsel for the appellants argues that the defendant is entitled to a notice of three months before the institution of the suit, as provided under Section 11 of the Act, which admittedly has not been given for terminating the tenancy. But, this argument also cannot be accepted because, I have already held that he is not entitled to any benefits under the Act, which would also include the benefits which accrued to her in view of the abovesaid Section 11. Further, this notice-question having not been raised in the written statement, the said conduct would amount to waiver of notice (vide: Balasubramania Iyer v. S.P. Muthu Kumaraswamy Devasthanam (1983)1 M.L.J. 280 and Sri Kothandaramaswamy Devasthanam by its Fit Person and E.O., Chingleput v. Gopal Naidu and Anr. (1992)2 L.W. 363.) The net result is the suit for possession has been rightly dismissed by the lower appellate court.
17. But the learned Counsel for the appellants states that the appellants should be given atleast compensation for the superstructure. But even the benefits under the said Section 3, they cannot claim, in view of my abovesaid decision. Under the Transfer of Property Act, the tenant cannot claim as of right, that when the landlord takes possession of the land, he should pay compensation for the superstructure put up by the tenant; the tenant can only remove the superstructure. No doubt, under the general law, the landlord alone has got option either to pay compensation for the superstructure and take the superstructure along with the land, or to take the land alone. In the latter case, the tenant has only to remove the superstructure if he so desires. Therefore, there is nothing wrong in the decree that has been given by the lower appellate court. However, opportunity should be given to the appellants to remove the superstructure by themselves. Accordingly I grant a month's time for the appellants to remove the superstructure themselves. If within that time they do not remove the superstructure, the respondent-plaintiff could execute the decree and take possession of the land along with the superstructure. It has also so held in Duraiswami Mudaliar v. Ramaswami Chettiar 92 L.W. 144 and Ramrup Rai v. Gheodhari Kuer and also my own judgment in S.A. Azizullah and Anr. v. Sakthivelu and Ors. C.R.P. No. 173 of 1992, dated 16.10.1992.
18. In the result, subject to the above grant of one month's time for the appellants to remove the superstructure themselves, the appeal is dismissed with costs.