Madras High Court
R.Vijayalakshmi vs Bhuvaneswari on 31 March, 2010
W.P(MD)No.14899 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.08.2022
DELIVERED ON : 13.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.14899 of 2022
and
W.M.P(MD)Nos.10656 & 12925 of 2022
1.R.Vijayalakshmi
2.R.Arun
3.R.Sundar ... Petitioners
Petitioners are represented
by their Power agent,
K.Mariappan
Vs.
1.Bhuvaneswari
2.Sivakameshwari
3.Saratha Devi
4.Lalithambigai
5.Abirami
6.Saravanan
7.Senthilkani
8.Sankareswaran
9.Ramachandra Ganesh
10.The Legal Services Authority,
(District Munsif Court),
Sivakasi. ... Respondents
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https://www.mhc.tn.gov.in/judis
W.P(MD)No.14899 of 2022
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus,
calling for the records relating to the award, dated 31.03.2010, passed in
O.S.No.10 of 2007 on the file of the District Munsif Court, Sivakasi, the
tenth respondent herein, quash the same as illegal, nullity, void ab-initio, un-
enforceable in a Court of law and consequently direct the respondents 1 to
9, their men, agents or any body claiming through them from in any manner
taking steps for evicting the petitioners based on the said lok adalat award,
dated 31.03.2010.
For Petitioners : Mr.A.Sivaji
For R-1 to R-6 : Mr.S.Parthasarathy
For R-7 to R-9 : No appearance
ORDER
The present Writ Petition has been filed to quash the award passed by the Lok Adalat on 31.03.2010 in O.S.No.10 of 2007 on the file of the District Munsif Court, Sivakasi, on the ground that it is illegal, null and void, unenforceable in the Court of law and consequently direct the respondents 1 to 9 from in any manner taking steps for evicting the petitioner, based upon the said Lok Adalat award, dated 31.03.2010. 2/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 Factual Background:
2. The petitioners are the legal heirs of one Ramadass, who had taken a vacant site of 7 cents on lease from the father of the private respondents, namely, T.P.Kathiresan. According to the petitioner, the said Ramadass was permitted to put up a pakka superstructure and initially it was agreed that the lease will be for a period of three years. The said lease was obtained for the purpose of parking college buses and two wheelers, since the said Ramadass was running an Engineering College and other Educational Institutions.
3. The petitioner has further contended that Kathiresan, who had let out the premises was taking steps to evict him unauthorisedly. Hence, the said Ramadass was forced to file various proceedings including a police complaint. Finally, the said Ramadass had filed O.S.No.10 of 2007 on the file of the District Munsif Court, Sivakasi, as against the said Kathiresan. In the said suit, Ramadass had contended that the suit schedule premises belongs to the Kathiresan and based on rental agreement, he is in possession 3/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 of the property. He had further contended in the said suit, that the said Kathiresan is attempting to dispossess him through unlawful means. Hence, the tenant (Ramadass) had prayed for a permanent injunction that he should not be evicted unless by due process of law.
4. The petitioner has further contended that while the said suit was pending, the matter was referred to Lok Adalat on 31.03.2010. A settlement memo was filed by both the parties in which the tenant had agreed that he would vacate the premises on 30.06.2010. In case of failure to vacate the premises, the landlord is at liberty to execute the decree. According to the petitioner, such a settlement was arrived at based on misrepresentation, fraud and coercion played by the landlord. The Presiding Officer of the tenth respondent, namely, the Legal Services Authority have not followed the procedure contemplated under the Legal Services Authorities Act, 1987, before recording such a compromise.
5. The petitioner has further contended that based upon the said compromise, the landlord had filed E.P.No.26 of 2010 to execute the decree and get possession of the property. The petitioner had filed O.S.No.142 of 4/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 2010 on the file of the Principal District Munsif Court, Srivilliputhur, challenging the validity of the Lok Adalat award. The petitioner also filed E.A.No.27 of 2011 under Section 47 of the Civil Procedure Code on the ground that the decree is in-executable. E.A.No.27 of 2011 was allowed on 20.10.2011 and the execution petition was dismissed. The landlord had filed C.R.P.No.2275 of 2011 as against the allowing of Section 47 application.
The landlord had filed C.R.P.No.2368 of 2010 to strike of the plaint in O.S.No.142 of 2010. Both the Civil Revision Petitions were heard together and both of them were allowed. The order passed by the Execution Court in Section 47 application was set aside and the execution proceedings were restored. The learned Single Judge of this Court further held that an independent suit, challenging the award of the Lok Adalat is not maintainable and rejected the plaint in O.S.No.142 of 2010. Contentions of the learned Counsel for the petitioner:
6. The petitioner has filed the present writ petition, challenging the award of the Lok Adalat on the following grounds:5/30
https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 6.1. The petitioner being a tenant of a vacant site is entitled to the benefits under City Tenants Protection Act. The said statutory benefits of the tenant have been suppressed and the petitioner was forced to sign the compromise memo on a misrepresentation.
6.2. The said Kathiresan is not the exclusive owner of the property but it is his ancestral property. O.S.No.1 of 2008 has been filed on the file of the Principal District Court, Virudhunagar at Srivilliputhur by two sons of the said Kathiresan, claiming 1/5th share. In the said suit, Ramadass was impleaded as the fifth defendant. The pendency of the partition suit was suppressed and a joint compromise memo was obtained from the writ petitioner on 31.03.2010.
6.3. A preliminary decree was passed in O.S.No.1 of 2008, granting 2/5th share in favour of the two defendants (Sons of Kathiresan). They have executed a registered sale deed with regard to their 2/5th share in favour of the tenant Ramadass on 17.03.2011 and hence, there is a merger of landlord and tenancy. Thereafter, the decree for ejectment cannot be executed.6/30
https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 6.4. The landlord is only a defendant in the suit. He has not raised any counter claim in his written statement. Hence, decree cannot be executed by the defendant.
6.5. The said Ramadass / tenant was not apprised of the full and correct facts and he was forced and constrained to enter into a compromise.
6.6. The Lok Adalat had failed to take note of the statutory right of the tenant, pendency of partition claim and the legal consequences of the compromise between the parties. If these facts had been brought to the notice of the Lok Adalat, the present award would not have been passed.
7. The learned Counsel for the petitioner had contended that as per regulation 17(5(b)), the members of the Lok Adalat have to ensure that the parties affix their signature only after fully understanding the terms of settlement. The members of the Lok Adalat have to get satisfied that the parties have entered into the settlement voluntarily and not on account of any threat, coercion or undue influence. According to the petitioner, the 7/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 Presiding Officers of the Lok Adalat have not satisfied themselves about the absence of threat, coercion or undue influence in entering into the joint memo of compromise by the parties. The learned Counsel appearing for the petitioner further contended that in view of the fact that the award of the Lok Adalat is attacked on the ground of fraud, the entire proceedings get vitiated and the award has to be set aside and the trial Court may be directed to rehear O.S.No.10 of 2007. Hence, he prayed for allowing the writ petition.
Contentions of the learned Counsel for the respondents:
8. Per contra, the learned Counsel appearing for the respondents had contended that the petitioner has specifically contended that there were a lot of disputes between the petitioner and the respondent landlord right from January 2007. Hence, he cannot now contend that he was not aware of the terms of the settlement which he has entered into. He further contended that the writ petitioner was arrayed as the fifth defendant in the partition suit in O.S.No.1 of 2008 and he had filed his written statement on 30.06.2008. Only two years, thereafter, he had entered into a compromise in the Lok 8/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 Adalat on 31.03.2010. Hence, the petitioner cannot contend that the pendency of the partition suit was suppressed and the said suppression would result in invalidating the Lok Adalat award.
9. The learned Counsel for the respondents have further contended that it is an admitted fact that Kathiresan is the Kartha of the joint family and he has let out the premises to the petitioner and hence, he is entitled to proceed with the eviction proceedings.
10. The learned Counsel for the respondents have further contended that when the tenant agrees to vacate the premises within a time frame, there is no necessity to terminate the lease and hence, the contention of the learned Counsel for the petitioner that when the lease is subsisting, a decree for ejectment cannot be put into execution. He further pointed out that the claim of the writ petitioner with regard to City Tenants Protection Act was rejected by this Court by an order, dated 27.02.2020, in a common order in C.R.P(PD)(MD)No.2368 of 2010 and C.R.P(NPD)(MD)No.2275 of 2011. In paragraph No.20 of the said judgment of this Court has held that the said Ramadass / tenant would not be entitled to the benefits of the City Tenants 9/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 Protection Act.
11. The learned Counsel for the respondents further contended that the award of the Lok Adalat is deemed to be a decree under Section 21 of the Legal Services Authorities Act, 1987. Since it is a decree, the respondent landlord is entitled to execute the same.
12. The learned Counsel for the respondents further contended that the suit was referred to Lok Adalat only at the instance of both the parties. Both the parties have mutually agreed relating to the terms of compromise. The petitioner is running a prestigious Engineering College and he is being assisted by able Advocate. Only after a long discussion, this compromise was arrived at and hence, the contention of the petitioner that he was kept in dark, is only an after thought and not legally sustainable. The learned Counsel for the respondents had further contended that the award of the Lok Adalat should only be construed to be a compromise decree. Only when the agreement or compromise is not lawful, the Court is not bound to record the compromise. As per explanation to Order 23, Rule 3, an agreement or compromise which is void or voidable under the Indian Contract Act shall 10/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 not be deemed to be lawful within the meaning of this rule. In such circumstances, unless the petitioner proves that the compromise is vitiated by anyone of the grounds found in Section 19 of the Indian Contract Act, a compromise decree cannot be set aside. In the present case, the petitioner was aware of his legal status and he has voluntarily entered into a compromise to hand over the possession in a period of three months. Incase, if he did not vacate the premises, the landlord was given right to execute the decree. Only after being satisfied with the genuineness and the voluntariness of the compromise memo, the Lok Adalat recorded the said compromise. Hence, he prayed for dismissal of the writ petition.
13. I have carefully considered the submissions made on either side. Discussion:
14. There is no dispute that the petitioners' ancestor in title, namely, Ramadas has entered into a lease agreement with the ancestors of the private respondents with regard to a vacant site of 7 cents. The said Ramadas had initiated O.S.No.10 of 2007 on the file of the District Munsif Court, Sivakasi, for the relief of permanent injunction not to evict him unless by 11/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 due process of law. A perusal of the averments in the plaint indicate that the petitioner (Ramadas) admits the landlord tenant relationship with Mr.Kathiresan.
15. In the light of the above said admitted facts, let us consider the legal issues raised by the writ petitioner.
Legal character of Lok Adalat award:
16. The Hon'ble Supreme Court in a judgment reported in AIR Online 2022 SC 731 (K.Srinivasappa and others Vs.M.Mallamma and others) in paragraph No.28 has held as follows:
"28. Section 21 of the Legal Services Authorities Act, 1987 equates an award of the Lok Adalat, to a decree of a civil Court and imputes an element of finality to an award of compromise passed by the Lok Adalat. When the Lok Adalat disposes cases in terms of a compromise arrived at between the parties to a suit, after following principles of equity and natural justice, every such award of the Lok Adalat shall be deemed to be a decree of a civil Court and such decree shall be final and 12/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 binding upon the parties".
17. The Hon'ble Supreme Court while interpreting Section 21 of the Legal Services Authorities Act has held that the award of the Lok Adalat shall be deemed to be a decree and the said award shall be final and binding on all the parties to the dispute and no appeal shall lie to any Court against the award.
18. A Division Bench of Bombay High Court in a judgment reported in AIR online 2021 Bombay 1660 (Umadevi Rajkumar Jeure and Others Vs. District Collector, Solapur and Another) in paragraph No.14 has held as follows:
"14. All this indicates that determination of a dispute by a Lok Adalat has consequences exclusively for the parties to the dispute. The referring Court or the Court for which such Lok Adalat is organised does not come into the picture so far as such determination is concerned. In fact, in the case of a reference under Clause (ii) of Section 19(5) of the LSA Act, it is the authority or committee organising the Lok Adalat, which itself refers the case or matter to the Lok Adalat. The Court, for which such Lok Adalat is organised, is not concerned even at 13/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 the stage of reference. The award made by the Lok Adalat does not have to go back to that Court to enable it to make it a party of its decree. The award itself is final and binding (and not appealable) as between the parties. It is deemed to be a decree of a civil Court and executable as such. There is nothing in this scheme of things for treating an award passed by a Lok Adalat as a deemed decree of that Court which made the reference to the Lok Adalat or for which the Lok Adalat was organised".
19. A perusal of the Division Bench judgment of Bombay High Court indicates that once an award is passed by the Lok Adalat, there is no necessity for the award to go back to the reference Court to enable it to make it a party of its decree. A Division Bench has further held that award itself is final and binding as between the parties and it is deemed to be a decree of the civil Court and executable as such. Hence, it is clear that there is no necessity for the Lok Adalat to again refer the case back to the Court for passing a decree in consonance with the award. In view of the judgment of the Hon'ble Supreme Court and the Division Bench of the Bombay High Court, this Court feels that the award of the Lok Adalat is deemed to be a civil Court decree and there is no necessity for it being referred back to the 14/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 Court again for passing of a decree by the civil Court. Maintainability of proceedings under Article 226 challenging the Lok Adalat award:
20. The Hon'ble Supreme Court in its judgment reported in 2008 (2) SCC page 660 has held that any challenge to the award can be done only by filing a petition under Article 226 or Article 227 of the Constitution that too on very limited grounds.
21. The Hon'ble Supreme Court in a judgment reported in AIR 2022 SC page 2381(K.Srinivasappa and others Vs.M.Mallamma and others) in paragraph No.29 has held as follows:
"29. While we recognise that a Writ Petition would be maintainable against an award of the Lok Adalat, especially when such writ petition has been filed alleging fraud in the manner of obtaining the award of compromise, a writ Court cannot, in a casual manner, dehors any reasoning, set aside the order of the Lok Adalat. The award of a Lok Adalat cannot be 15/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 reversed or set aside without setting aside the facts recorded in such award as being fraudulent arrived at".
22. In view of the above said judgment of the Hon'ble Supreme Court, it is clear that a writ petition under Article 226 of the Constitution of India is maintainable, challenging an award passed by the Lok Adalat on the limited ground where fraud is alleged in the manner of obtaining the award or compromise. However, the award of the Lok Adalat cannot be reversed or set aside without setting aside the facts in such award as being fraudulent. Status of consent decree:
23. The award passed by the Lok Adalat is based upon a consensus / compromise reached between the parties. It is clearly an agreement between the parties over which a stamp of approval is being given by the civil Court or the Lok Adalat. A consent decree is not a result of an adjudicatory process but it is a result of a consensus arrived at between the parties. Though a compromise decree will not strictly attract the bar under Section 11 of the Civil Procedure Code, certainly it will attract the principle of 16/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 estoppel between the parties to the compromise decree. The Lok Adalat award being a result of consensus / compromise between the parties, certainly it will operate as an estoppel between the parties unless vitiating factors are proved to be present at the time of entering into or recording of said compromise.
Grounds of challenge to a consent decree:
24. The Hon'ble Supreme Court in its judgment reported in 1992 (1) SCC page 31 (Byram Pestonji Gariwala Vs. Union Bank of India and Others) in paragraph No.41 has held as follows:
41. In the present case, the notice issued under Order XXI, Rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed. The notice was accordingly made absolute by order, dated January 23, 1990 and leave was granted to the plaintiff to execute the decree. The decree passed by the High Court on June 18, 1984 in terms of the compromise was a valid decree and it constituted res judicata. As sated by this Court in Shankar Sitaram Sontakke Vs. Balkrishna Sitaram Sontakke.
(AIR p.355) 17/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 "...... It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata'."
25. A careful perusal of the judgment of the Hon'ble Supreme Court will reveal that a compromise would always be binding upon the parties unless it is found to be vitiated by fraud, misrepresentation, mis- understanding or mistake. The explanation to Order 23, Rule 3 also clarifies that an agreement shall not be deemed to be lawful when it is void or voidable under the Indian Contract Act, 1872. All the factors that would vitiate a contract, would also vitiate a consent / compromise decree. If anyone of the vitiating factors are proved to be present, a compromise memo and the consequential Lok Adalat award or a compromise decree are liable to be set aside.
Burden of proof:
26. The Hon'ble Supreme Court in its judgment reported in 2010 (5) SCC page 104 (Shanti Budhiya Vesta Patel and others Vs. Nirmala 18/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 Jayprakash Tiwari and others) in paragraph No.31 has held as follows:
"31. It is a settled position of law that the burden to prove that a compromise arrived at under Order 23, Rule 3 of the Code of Civil Procedure was tainted by coercion or fraud lies upon the party who alleges the same.............."
27. A careful perusal of the above said judgment would clearly indicate that the burden of proof that a compromise was tainted by vitiating factors lies upon the party who alleges the same. Hence, in the present case, the entire burden is upon the writ petitioner to plead and prove that any one of the vitiating factors are available in order to set aside the compromise memo and the consequential Lok Adalat award.
Allegations of fraud and suppression:
28. The main ground of attack of the compromise memo is that the availability of the benefits under the City Tenants Protection Act was not brought to the notice of the tenant. This Court in its judgment in C.R.P.Nos. 2275 of 2011 and 2368 of 2010 in paragraph No.20 has held that the tenant 19/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 is not entitled to the benefits of the City Tenant Protection Act on the ground that the tenancy has been created only on 01.01.2006. The Tamil Nadu City Tenants Protection Act would apply only to those tenancies that were created on or before 03.03.1980. Hence, the Lok Adalat award cannot be said to be vitiated on the alleged suppression of a right, which was not available to the tenant.
29. The next ground of attack is that regulation 17 of National Legal Services Authorities (Lok Adalats Regulation), 2019 was not followed in recording the compromise. As per regulation 17 (5), the members shall ensure that the parties affix their signature only after fully understanding the terms of the settlement. In the present case, the members of the Lok Adalat have specifically recorded that there was no coercion or force in arriving at a settlement and the settlement was arrived at on 31.03.2010. The petitioner and his learned Counsel have signed the settlement memo. The petitioner has not raised any objection with regard to the settlement till he received notice in E.P.No.26 of 2010. Thereafter, the petitioner has chosen to file O.S.No.142 of 2010, challenging the award. In paragraph No.7 of the said plaint, it is admitted that the petitioner has signed the compromise memo. 20/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 However, the only objection raised in the plaint was that he was not appraised about the legal rights of a tenant under the City Tenants Protection Act. Other than the said attack, no other allegation has been made by the writ petitioner relating to the compromise memo or the procedure adopted by the members of the Lok Adalat while recording the compromise memo. Only in the present writ petition, filed twelve years after the Lok Adalat award, the petitioner has chosen to make allegations of vitiating factors relating to the filing of the compromise memo. Hence, this Court finds that it is only an after thought by the tenant to prolong his possession in the disputed property.
30. The learned Counsel for the petitioner had further contended that the landlord had suppressed the pendency of a partition suit in O.S.No.1 of 2008. Had it been brought to his notice he would not have entered into such a compromise. As rightly contended by the learned Counsel for the respondents, the petitioner was one of the defendants in the said partition suit and he had filed his written statement on 30.06.2008 itself. Two years thereafter, the petitioner has entered into a compromise on 31.03.2010 before the Lok Adalat. Hence, the contention of the petitioner that he was 21/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 not aware of the pendency of the partition suit between his landlord and his sons seems to be factually incorrect and invented for the purpose of filing this writ petition.
Whether the defendant can execute a compromise decree?
31. The learned Counsel for the petitioner has further contended that the landlord being a defendant in the suit, a decree cannot be passed in his favour. Even if a decree is passed, the same cannot be executed without there being a counter claim on the side of the defendant. Though it may not be a relevant factor for deciding the writ petition, this Court is constrained to consider the same in view of the submissions.
32. Section 2(3) of the Civil Procedure Code defines decree holder as follows:
"Section 2(3): Decree Holder: “Decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made."22/30
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33. Section 2(10) of the Civil Procedure Code defines judgment debtor as follows:
"Section 2(10): Judgment-debtor: “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;"
34. A combined reading of the above said definitions will clearly indicate that any person in whose favour a decree has been passed or an order capable of execution has been made can be considered to be a "decree holder". Similarly, any person against whom a decree has been passed or an order capable of execution has been made can be considered to be a "judgment debtor". The expression used is “any person” and not “any party”. Hence, it is clear that even a non party to a suit or an application can be considered to be a decree holder or a judgment debtor as the case may be. In view of Section 50 of the Civil Procedure Code, a decree can be enforced as against the legal representatives of a judgment debtor. In view of Section 49 a transferee / assignee of a decree is entitled to execute a decree as contemplated under Order 21, Rule 16 of the Civil Procedure Code. Similarly, legal heirs of the decree holder will also be entitled to execute a 23/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 decree. Hence, it is clear that even a non party to the suit can execute the decree or may be subjected to the decree. It is significant to note that the word 'plaintiff' is absent in the definition of "decree holder" and the word 'defendant' is absent in the definition of "judgment debtor". Hence, it is not legally correct to contend that the plaintiff alone could be a decree holder. The definition of decree holder includes an order that is capable of execution. If any interim order is passed in favour of a defendant, the same is also executable and the defendant can also be considered to be a decree holder.
35. In the present case, the parties have consented for referring the matter to Lok Adalat. In the Lok Adalat, the parties have filed a joint memo of compromise. As per the said compromise memo, the tenant has agreed to vacate the premises on or before 30.06.2010. Incase of his failure, the landlord will have a right to execute the decree. Hence, the tenant cannot now turn around and contend that the defendant is not entitled to file an execution petition without a counter claim. He cannot also contend that the defendant cannot execute the decree without payment of Court fee. In fact, as per Section 21 of the Legal Services Authorities Act, 1987, where a 24/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 compromise or settlement has been arrived at by a Lok Adalat, the Court fee paid in such case shall be refunded. Hence, it is immaterial whether any Court fee has been paid by the defendant or not, for the execution of the Lok Adalat award.
36. As contemplated under the amended Order 23, Rule 3 of the Civil Procedure Code, the parties are entitled to enter into a compromise, even if the same is not the subject matter of the said suit. Hence, the contention of the learned Counsel for the petitioner that without a counter claim on the side of the defendant, such an award could not have been passed by the Lok Adalat is not legally sustainable.
Effect of merger:
37. The petitioner has further contended that he has purchased 2/5 th share from the two sons of Kathiresan, by way of a registered sale deed, dated 17.03.2011. Hence, he contended that there is a merger of landlord tenant relationship and hence, the decree could not be executed. The learned Counsel for the petitioner had relied upon Section 111(d) of the Transfer of 25/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 Property Act to contend that the interest of the lessor and lessee have become vested at the same time in one person and hence, the decree is not executable.
38. The Hon'ble Supreme Court in its judgment reported in 2003 (5) SCC page 150 (T.Lakshmipathi and others Vs. P.Nithyananda Reddy and others) in paragraph No.18 has held as follows:
18. In the case at hand, it cannot be denied, nor has it been denied, that the appellants herein are not purchasers of the entire ownership interest in the property. What they have purchased is interest of some out of all the co-owners of the property. The interest of Respondent 1, whatever be its extent, has not come to vest in the appellants. The appellants have also acquired the tenancy rights in the property. Thus, they have acquired partial ownership and full tenancy rights. It cannot be said that the interests of the lessee and the lessor in the whole of the property have become vested in the appellants at the same time and in the same right. The lease cannot be said to have been determined by merger. So long as the interests of the lessee, the lesser estate and of the owner, the larger estate do not come to coalesce in full, either the water of larger estate is not deep enough to enable annihilation or the body of lesser 26/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 interest does not sink or drown fully".
39. A careful perusal of the judgment of the Hon'ble Supreme Court clearly reveals that acquisition of partial ownership will not be suffice to terminate the tenancy. Unless the whole of the property becomes vested in the tenant, the lease cannot be said to have been determined by merger. Hence, in the present case, the petitioner is said to have purchased only 2/5 th share from some of the co-owners and not the whole of the interest in the property. Therefore, the invocation of Section 111(d) of the Transfer of Property Act will not arise but the landlord and Tenant relationship will continue. That apart, the writ petitioner has entered into the tenancy only with Kathiresan and now he cannot turn around and contend that he is not the absolute owner of the property and some other persons are also having share in the said premises.
40. It is clear that the parties have voluntarily entered into a memo of compromise and it has been recorded by the Lok Adalat and it is a deemed decree of a civil Court. Hence, the landlord is always entitled to execute the said decree to get back his possession. The pleadings in the writ petition 27/30 https://www.mhc.tn.gov.in/judis W.P(MD)No.14899 of 2022 relating to issue of fraud is as vague as it could be. The burden being entirely upon the writ petitioner has neither specifically pleaded nor proved the allegation of fraud, misrepresentation or coercion in arriving at a settlement.
Conclusion:
41. In view of the above said discussion, the writ petitioner has not established any vitiating factor much less fraud, misrepresentation or coercion to vitiate the compromise memo entered into between the parties on 31.03.2001, which was approved by the Lok Adalat by their award on the said date. The other grounds of attack raised by the writ petitioner though have been dealt with above will not come to the rescue of the writ petitioner for challenging the award. In view of the above said discussion, the writ petition stands dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petitions stand closed.
13.09.2022
Index : Yes / No
Internet : Yes / No
btr
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W.P(MD)No.14899 of 2022
To
The Legal Services Authority,
(District Munsif Court),
Sivakasi.
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W.P(MD)No.14899 of 2022
R.VIJAYAKUMAR, J.
btr
Order made in
W.P(MD)No.14899 of 2022
13.09.2022
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