Madras High Court
R.Tamilselvi vs A.Sangamuthu : 1St on 1 December, 2016
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.12.2016
Reserved on: 11.11.2016
Delivered on:01.12.2016
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Second Appeal (MD) No.64 of 2016
C.M.P.(MD) No.1526 of 2016
R.Tamilselvi : Appellant/Appellant/1st Defendant
-Vs-.
1.A.Sangamuthu : 1st Respondent/1st Respondent/Plaintiff
2.S.Vellaithayammal
3.T.Parameswari
4.S.Gopinathan
5.S.Renuga : Respondents 2 to 5/ Respondents 2 to 5/
Defendants 2 to 5
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, to set
aside the decree and judgment dated 30.11.2015 rendered in A.S.No.7 of 2014
on the file of the V Additional District Judge, Madurai, confirming the
decree and the judgment dated 20.12.2013 rendered in O.S.No.140 of 2012, on
the file of the II Additional Subordinate Judge, Madurai, by allowing this
Second Appeal.
!For Appellant : Mr.S.Subbiah
^For Respondents : Mr.P.T.S.Narendravasan
:JUDGMENT
This Second Appeal has been filed by the first defendant in the suit in O.S.No.140 of 2012 on the file of the Second Additional Sub Court, Madurai.
2.The first respondent in this appeal, as plaintiff, filed the suit in O.S.No.140 of 2012 for declaration that the suit property belongs to the plaintiff and for recovery of possession of the suit property from the appellant after receiving the amount of Rs.2,10,000/- deposited by the plaintiff in Court. The suit is also to direct the first defendant to pay a sum of Rs.10,000/- per month to the plaintiff towards damages for the use and occupation of the suit property by the first defendant.
3.The case of the first respondent in the plaint are as follows:
3.1.The suit property belong to one Sangaiah Konar and that on the demise of the said Sangaiah Konar, the property devolved on the defendants 2 to 5, being his legal heirs. Since the plaintiff had purchased the suit property from the legal heirs of the deceased Sangaiah Konar i.e., from defendants 2 to 5, he became the absolute owner of the suit property which is a commercial building in a busy locality of Madurai Town.
3.2.The second defendant had borrowed a sum of Rs.1,60,000/- from the first defendant on the foot of a demand promissory note dated 23.01.1998 and in lieu of interest payable by her to the first defendant, the possession of the suit property was given to the first defendant to enjoy the same without any rent for a period of three years in terms of an agreement dated 28.01.1998 between the defendants 1 and 2.
3.3.Once again, the defendants 2 to 5 borrowed a further sum of Rs.50,000/- from the first defendant on 01.03.2001 and executed a fresh promissory note for a sum of Rs.2,10,000/- in favour of the first defendant.
Similar to the earlier agreement, a fresh agreement was also executed between the first defendant and the defendants 2 to 5 on 01.03.2001. The first defendant had agreed to surrender the possession of the suit property on repayment of a sum of Rs.2,10,000/- by the defendants 2 to 5 within a period of three years from 01.03.2001. It was only thereafter the plaintiff purchased the suit property bona fidely, in good faith, under a registered sale deed dated 16.07.2007. The sale deed refers to the amount payable by defendants 2 to 5 and the obligation of the plaintiff to discharge the promissory note amount of Rs.2,10,000/- due to the first defendant and to get delivery of the suit property from him. However, when the plaintiff approached the first defendant during the month of August, 2007, for repaying the promissory note amount of Rs.2,10,000/-, the first defendant refused to receive the amount and deliver the suit property to the plaintiff with ulterior motives.
3.4.Though the amount of Rs.2,10,000/- borrowed by the defendants 2 to 5 is a time barred debt and the first defendant cannot recover the same from the plaintiff, the plaintiff bona fidely offered the first defendant and requested the first defendant to deliver the suit property by receiving the sum of Rs.2,10,000/-. However, the first defendant had turned as a deaf ear. In such circumstances, the first defendant's possession over the suit property is unlawful and illegal and amounts to trespass. Despite the plaintiff tendering the amount on various occasions, the first defendant refused to surrender the possession and to avoid any legal battle, the plaintiff finally tendered the amount on 16.10.2011 by way of a Demand Draft dated 12.10.2011 favouring the first defendant and the first defendant refused to receive the demand draft. Hence, the plaintiff was constrained to issue a legal notice to the first defendant on 17.10.2011. For which, the first defendant sent a reply on 22.10.2011 contending false and baseless allegations. The first defendant is not at all a tenant in respect of the suit property and the alleged tenancy right based on the agreement dated 28.01.1998 and 01.03.2001 do not confer any tenancy right in favour of the first defendant. Since the first defendant's attitude in challenging the sale deed in favour of the plaintiff and denying the plaintiff's title to the suit property, the present suit is filed for the relief of declaration and recovery of possession.
4.The suit was contested by the first defendant by filing a written statement in the following manner:
4.1.The plaintiff has not purchased the suit property after bona fide search for title and hence, the alleged sale deed dated 16.07.2007 is not true, valid and binding on the first defendant. The allegations and averments found in the plaint are denied. The contention of the plaintiff that the first defendant had agreed to surrender the possession of the suit property on repayment of a sum of Rs.2,10,000/- within a period of three years from 01.03.2001 are denied. It was, in fact, after three years, when the first defendant wanted fresh document in 2004, the defendants 2 to 5 represented that they are willing to sell the suit property to the first defendant and that it was for the said reason the agreement was not extended by defendants 2 to 5. In this fashion, the first defendant was actually duped by the defendants 2 to 5 but nevertheless promised to execute the sale deed to the first defendant. The contention that the plaintiff demanded the first defendant to surrender the possession upon receipt of Rs.2,10,000/- etc., are false as no one has ever approached the first defendant. This first defendant was inducted as a tenant as early as in 1990 for monthly rent and later, defendants 2 to 5 wanted to sell the suit property to the first defendant and with a clear intention of agreeing to sell the suit property to the first defendants, the defendants 2 to 5 allowed the first defendant to be in possession of the property. The defendant 2 to 5 also promised to execute the sale deed and assured that first defendant's possession will remain undisturbed. The first defendant believing the words of the the defendants 2 to 5 that they will execute the sale deed in favour of the first defendant, she did not press for early completion of sale.
However, in 2007, the possession of the first defendant was disturbed and hence, she was constrained to file the suit in O.S.No.596 of 2007 and obtained an ex parte decree on 19.12.2007. Even in connection with the previous suit, there was exchange of notices and at that time the plaintiff would describe the agreement as a mortgage and the consideration for the sale as mortgage money. It is to be seen that the stand taken by the first defendant is not specific with regard to his status whether he is a tenant or a person claiming under the agreement to be in possession in lieu of interest for the amount borrowed from the first defendant.
5.The trial Court framed necessary issues and decreed the suit for declaration of title and recovery of possession. The first defendant aggrieved by the judgment and decree of the trial Court, filed an appeal in A.S.No.7 of 2014 on the file of the V Additional District Judge, Madurai. The lower appellate Court also confirmed the judgment and decree of the trial Court and dismissed the suit. The first defendant aggrieved by the judgment and decree of the Courts below has preferred the above Second Appeal.
6.The following questions of law had been raised in the memorandum of grounds:
(a) Whether a suit for declaration of title and possession is maintainable against a tenant, in respect to a property, falling within the protection under the Tamil Nadu Buildings (Lease and Rent) Control Act 18 of 1960, even without approaching the Rent Controller for eviction?
(b) When a suit is filed for declaration of title and for possession, by a landlord against his tenants, even after granting the title to the plaintiff, whether, a Court can pass a decree for possession, against the tenant, without the landlord availing the remedies, under the Rent Control Act?
(c) When the appellant had raised in the grounds in the memorandum of appeal regarding the question of jurisdiction of a Civil Court to grant a decree for possession against the statutory tenant is not the finding of the Appellate Court that the grounds were not taken in the memorandum is vitiated?
(d) If the Appellate Court holds that no issue had been framed by the Trial Court, is it not its duty to frame that issue, in the appeal itself, and decided the same on merits?
(e) When the documents produced by the plaintiff himself established that there was a tenancy agreement in between the defendant and his predecessors in title, is it open to the Appellate Court to ignore the same on the ground that there was no pleading regarding the tenancy by the defendant, in the written statement?
(f) Is it not a fact admitted during the course of evidence relating to the tenancy relationship, and based upon materials, would lead to the Court to take into consideration of the same for the purpose of considering its jurisdiction especially when the powers of eviction or impliedly ousted under the Rent Control Act, thereby barring the Civil Court under Section 9 of the said Code, from trying the suit for eviction?
(g) When an application is filed to receive additional evidence, is not the procedure adopted by the Appellate Court in not considering the same at the time of pronouncing the judgment is in order, in terms of the provisions contained under Order XLI Rules 27 and 28 of the Code of Civil Procedure?
(h) When the jurisdiction of the Civil Court goes to the root of the matter, can such a plea be not raised, at any stage of the proceedings, including in an appeal, against the decree passed by the Trial Court?
(i) When legal arguments were based upon the materials available on record, whether there should be an application to receive the additional grounds of appeal, and when the Appellate Court is at liberty to consider any points, whether raised or permitted to be raised or not raised, at the time of the judgment in the Appeal as contemplated under Order XLI, Rule 2 of Code of Civil Procedure?
7.Even though the learned Counsel for the appellant has advanced his argument on all the legal issues, as seen from the questions of law raised in the memorandum of grounds, he confined his argument finally only with regard to the maintainability of the suit for recovery of possession by stating that the suit property being a building, comes under the purview of the Tamil Nadu Building (Lease and Rent Control) Act, 18 of 1960, only a petition for eviction can be filed under the Rent Control Act.
8.Having regard to the specific pleadings and the evidence available in this case, it is to be seen what exactly the relationship that was existing between the plaintiff's predecessor-in-interest and the first defendant.
9.The plaintiff in this case described the possession of first defendant as one under the agreement dated 28.01.1998 and the subsequent agreement dated 01.03.2001 whereby the first defendant was allowed to continue in possession and without paying any rent in lieu of the interest payable by the defendants 2 to 5 to the first defendant. If the possession of the first defendant is only under the agreement the first defendant cannot claim that she is a tenant. The plaintiff also pleaded that claim of the first defendant that she is as tenant and the alleged tenancy will come to an end by virtue of the agreement for possession dated 28.01.1998 and 01.03.2001. From the contentions of the plaintiff, it can be seen that the first defendant was in enjoyment of the suit property as a tenant even before the agreement dated 28.01.1998. Though the first defendant pleaded that there was an agreement of sale in respect of the suit property between the first defendant on one hand and the defendants 2 to 5 on the other hand, both the Courts below have concurrently found that the first defendant has not proved the oral agreement alleged by the first defendant and that absolutely there is no evidence with regard to the nature of agreement, terms of agreement, place of agreement and the consideration etc. Since there was no written agreement and it is not proved by any evidence that the possession of the first defendant is pursuant to the valid sale agreement, the contention of first defendant relying upon Section 53-A of the Act also was rejected by the Courts below. There is also no plea in the written statement that his possession was in pursuance of an agreement of sale. From the evidence on record, it can be seen that the first defendant was originally inducted as a tenant and the fact that he was in possession of the suit property as a tenant earlier, is not seriously disputed though documents filed in this case are only relating to the period subsequent to the agreement under Ex.A1 dated 28.01.1998. If the position that the first defendant was a tenant originally under defendants 2 to 5 is accepted, it has to be seen whether the first defendant has lost his right as a tenant by forfeiture by his own conduct by denying to the title or by virtue of the agreements dated 28.01.1998 and 01.03.2001. It is relevant to extract the recitals in the agreement dated 28.01.1998 under Ex.A1 in this context:
?vA;fspy; 1tJ egh; 2tJ egUf;F ehsJ Bjjpapy; U.1,60,000/- Ugha; xU yl;rj;jp mWgjhapuk; kl;Lk; xU gpuhkprhp Behl;L vGjpf;fbfhLj;J fldhf buhf;fk; bgw;Wf;bfhz;oUf;fpwhh;. ic bjhifapd; tl;of;fhf ehk; nUtUk; Behpy; Bgrp xg;g[f;bfhz;Ls;s gpufhuk; vA;fspy; 1tJ egUf;Fg; ghj;jpakhd moapy; fz;l filf;fl;olj;jpy; 2tJ egh; bts;isg;g{L filitj;J tpahghuk; bra;Jbfhz;L nd;W Kjy; 3(Kd;W) tUl tha;jhtiu mDgtpj;Jf;bfhz;Ltu Btz;oabjd;Wk;, Bkw;go tha;jhtpy; 2tJ egh; cgBahfpf;Fk; vyf;l;hpf;fuz;l; rhh;$; 2tJ egBu jtwhky; brYj;jptu Btz;oabjd;Wk;, Bkw;go tha;jhtpy; moapy;fz;l brhj;Jf;F Vw;gLk; fhh;g;gBurd; tPl;Lthpia 1tJ egh; brYj;jptu Btz;oabjd;Wk;, Bkw;go tha;jhtpy; 2tJ egh; Bky;fz;l gpufhuk; mDgtpj;Jf;bfhz;LtUtijj;jtpu cs;thliff;F tplBth jd; chpikia kw;wtUf;F khw;wBth mghafukhd bghUl;fis itj;J cgBahfpj;Jf;bfhs;sBth TlhJ vd;Wk;, Bkw;go tha;jh tUlk; Kd;Wk; rhptu brd;wJk; 2tJ egh; moapy; fz;l filf;fl;olj;ij ng;BghJs;s ey;y epiyikg; gpufhuk; fhypbra;J bghrprid rhtpfs; rfpjk; 1tJ eghpd; RthjPdj;jpy; xg;g[tpj;J 2tJ egh; 1tJ eghplk; bfhLj;J nUf;fpw Bkw;fz;l gpuhkprhp Behl;L bjhif U.1,60,000/- Ugha; xU yl;rj;jp mWgjhapuk; kl;Lk; jpUk;g bgw;Wf;bfhz;L bry;Yld; ne;j xg;ge;jg;gj;jpuj;ij 1tJ egh; trk; thg!; bfhLj;JtplBtz;oabjd;Wk;, ne;j xg;ge;jg;gj;jpuj;jpd; Kyk; ic gpuhkprhp Behl;L bjhifapd; tl;of;Fk; 2tJ egh; FoapUg;g[ thlif bjhiff;Fk; mz;lyhfptpLfpwgoahy; 1tJ egh; ic bjhiff;F tl;obfhLf;f Btz;oajpy;iybad;Wk;, nJBghy; 2tJ egh; FoapUg;g[f;F vt;tpj thlifj;bjhifa[k; bjhLf;fBtz;oajpy;iybad;Wk; ehk; nUtUk; rk;kjpj;J vGjpf;bfhz;l FoapUg;g[ xg;ge;jgj;jpuk;.??
It is relevant to point out that possession is not handed over under this document. Similar recitals are also found in the agreement under Ex.A3 dated 01.03.2001.
10.The learned counsel for the appellant as well as the first respondent proceeded to argue the case by assuming that the first defendant was originally inducted as a tenant. The respondent vehemently argued that the first defendant by entering into the agreements dated 28.01.1998 and 01.03.2001 which are in the nature of an usufructuary mortgage is not entitled to claim protection under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Since the first defendant also claim right under an oral sale agreement, the learned counsel for the respondent submitted that the first defendant cannot be treated as a tenant by virtue of forfeiture of tenancy.
11.The learned counsel for appellant submitted that the agreement Ex.A1 and A3 will not put an end to the tenancy as there is no implied or express surrender of lease and that even a usufructuary mortgage will not put an end to tenancy. The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Gambangi Appalaswamy Naidu and others v. Behara Venkataramanayya Patro reported in AIR 1984 SC 1728. Paragraphs 4 and 5 of the said judgment are as follows:
?4.Counsel for the appellants urged upon us to accept the view taken by the learned District Judge that the two transactions namely a lease and a usufructuary mortgage could co-exist and there was nothing in the two mortgage deeds to suggest that the appellants' rights as lessee were extinguished either by merger or by implied surrender and in that behalf strong reliance was placed upon the earlier decision of the Andhra Pradesh High Court in Varada Bangar Raju's ease (supra), while counsel for the respondents contended that the High Court, both in second appeal as well as Letters Patent Appeal, was right in restoring the learned District Munsif's decision by relying upon the later decision in P. Satyanarayana's case (supra) and prayed for dismissal of this appeal.
5.In our view there can be no merger of a lease and a mortgage, even where the two transactions are in respect of the same property. It is well-settled that for a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. In the case of a lease, the estate that is outstanding in the lessor is the reversion; in the case of a mortgage, the estate that is outstanding is the equity of redemption of the mortgagor. Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. Even, if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage, would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person. This position in law as explained by the Bombay High Court in Narayana Dogra Shetty v. Ramchandra Shivram Hingne, has been fully approved by this Court in Shah Mathuradas Maganlal & Co. v. Nagappa Shankarappa & Ors.?
12.The learned counsel for the appellant also relied upon a judgment of the Hon'ble Supreme Court in the case of Gopalan Krishnankutty v. Kunjamma Pillai Sarojini Amma and others reported in (1996) 3 SCC 424. The Hon'ble Supreme Court after referring to earlier judgment of the Hon'ble Supreme Court has expressed a view in paragraph 6, which is extracted below:
"6. The High Court, in the present case, proceeded on the erroneous assumption in law that surrender of the lease by the lessee (defendant) must be implied from the fact of execution of the usufructuary mortagage in his favour by the lessor (plaintiff). As indicated, this is an erroneous assumption in law. This question has to be decided on the contents of the deed since there is no other evidence of surrender of the lease by the defendant on execution of the mortgage. We find nothing in the mortgage deed (Annexure A-!) dated 18th July, 1974 read with the release deed of the same date to prove either an express or an implied surrender of the lease by the defendant in favour of the plaintiff on execution of the mortgage deed. Since there is no automatic merger of the interest of a lessee with that of a mortgagee when the same person is the lessee as well as the mortgagee, in absence of proof of surrender of the lease by the defendant, on redemption of the mortgage, the plaintiff is not entitled automatically to recover possession of the leased premises. The defendant's right to continue in possession as a lessee, therefore, continues to subsist."
13.The learned counsel relied upon a judgment of the Hon'ble Supreme Court in the case of Nirmal Chandra v. Vimal Chand reported in (2001) 5 SCC 51 wherein it has been held as follows:
?7.Before considering the terms and conditions of the mortgage deed, it may be better to first consider the legal position on the point. In a case reported in AIR 1984 SC 1728, Gambangi Appalaswamy Naidu and others versus Behara Venkataramanayya Patro ,this Court held that there can be no merger of lease and a mortgage, even where the two transactions are in respect of the same property as for a merger it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and no interest in the property should remain outstanding. Neither of the two rights are higher or lesser estate than the other. It is further observed that a tenant mortgagee could be directed to deliver the possession of the property at the time of redemption only if at the time of the mortgage there was surrender of lease rights in favour of the lessor. It all depends on the intention of the parties at the time of execution of the mortgage and its terms and conditions as well as the surrounding circumstances. On facts it was found that rent was payable by the lessee in the shape of share in the crop and there was an adjustment of rent and interest that is to say liability to pay rent during mortgage was kept alive which runs counter to implied surrender of lease rights. It was further held that the mere fact that owner creates a mortgage in favour of a lessee is not by itself decisive to hold that the prior lease was surrendered and the possession on the earlier lease was only that of a mortgagee. The nature of possession would however be a question of fact in each case. In Gopalan KRISHNANKUTTY VERSUS Kunjamma Pillai Sarojini Amma and others AIR 1996 S.C.. 1659, a Bench of Three Judges of this Court, held that unless there was a surrender of the lessees rights, at the time of execution of mortgage deed, mortgagor would not be entitled to obtain delivery of physical possession on redemption of mortgage. The question of actual surrender of rights depends upon the intention of the parties at the time of execution of the mortgage. It would be a question of fact depending upon evidence. It is further observed that in absence of proof of surrender of lease by the defendant, there is no automatic merger of an interest as lessee with that of the mortgagee when the same person is lessee as well as mortgagee. On redemption of the mortgage, the mortgagee is not entitled automatically to recover possession of the lease. In Narayan Vishnu Hendre and others versus Baburao Savalaram Kothawale (1995) 6 S.C.C. 608 this Court held that doctrine of merger does not apply where tenanted premises are mortgaged in favour of the lessee and such an inference cannot readily be inferred in the absence of any clear statement or indication in the deed or conduct of the parties. It has also been observed that lease of a property is a very valuable right and its implied surrender on execution of a mortgage would not be inferred unless there was a clear statement or indication to that effect in the document itself. Redemption of mortgage would revive the tenancy of the mortgagee, the only effect of mortgage was that the lessees rights were kept in abeyance and they stood revived by the redemption of the mortgage. In Nemi Chand versus Onkar Lal AIR 1991 S.C. 2046 in similar situation it was held that where it was stipulated that neither interest nor rent was payable as both amounts were equal, it clearly shows that rent was kept alive and there was no merger of lease. Lessee was held entitled to be in possession of the property as lessee despite the redemption of mortgage. In Nand Lal and others versus Sukh Dev and another 1987 (Supp) S.C.C. 87 also the same view was taken that tenancy rights would get revived on redemption of the mortgage and the lessee mortgagee would not be liable to be evicted.
8.From a perusal of the decisions of this Court as indicated above, it clearly emerges that there is no automatic merger of two rights where mortgage is executed in favour of a tenant and on redemption of mortgage, the tenancy rights kept in abeyance would revive and entitle the tenant to continue in possession even after the redemption of the mortgage. On execution of mortgage, tenancy rights would terminate only if it is clear expressly or impliedly by conduct or other related circumstances that the parties had intended so which would be a question of fact. Thus as a normal rule except in intention being to the contrary, mortgage and lease operate independent of each other and on mortgage coming to an end by redemption, tenancy would revive.
9.In the light of the law on the point indicated above we may now advert to the terms and conditions of the mortgage deed in hand. The Condition No.1 of the mortgage deed lays down that the interest of the mortgage money and the rent of the shop would be equal. The Condition No.4 which is also relevant and as quoted, on being translated into English, in the order of the High Court, is as follows:
After the expiry of the period of ten years when I get the shop redeemed, I would use it for my own purpose for at least three years. After getting it redeemed, I would neither give it on rent nor keep any partner with me. In case it is given to someone on rent, the mortgagee shall have right to take back possession of the shop in his capacity as a tenant.
It is to be noticed that under Condition No.1 the payment of rent is kept alive. It is sought to be adjusted by the amount of interest payable by the mortgagor-lessor to the lessee. Thus it is quite clear that element of tenancy and payment of rent operated throughout the period of mortgage. It is not denied before us that during all this period, the tenant remained in actual possession. His status as a tenant never ceased as amount of interest to which he was entitled to on Rs.10,000/- advanced to mortgagor was adjusted towards rent payable by him as a tenant of the accommodation to the landlord. In similar circumstances we have already seen that in the cases of Gambangi Appalaswamy Naidu as well as Nemi Cchand (Supra) this Court held that where rent is kept alive, it runs contrary to the intention or conduct of the parties leading to any inference of surrender of lease. In our view this fact alone is enough to hold that there was no merger of two rights nor surrender of tenancy could be inferred on the facts and circumstances or on the basis of the terms and conditions of the mortgage. As a matter of fact, Condition No.4 on which much reliance has been placed by the learned counsel for the appellant does not help him very much. It is no doubt initially indicated on expiry of ten years on redemption of mortgage the lessor would use the shop for his own purpose for at least three years. It would neither be given on rent nor he shall have any partner with him. It is further provided that in case it is given to some one on rent, the mortgagee shall have the right to take back possession in his capacity as tenant (emphasis supplied by us). This condition no where speaks of surrender of tenancy by the lessee. It only provides that for at least three years shop will be in personal use of the landlord failing which there would be revival of the mortgagees capacity as tenant. Such a condition cannot be said to be a clear intention of surrendering the lease rights in the property. Whatever little effect Condition No.4 if at all may have, is negated by Condition No.1 which kept the rent alive and the element of tenancy pervading throughout the period of mortgage.?
14.The learned counsel further relied upon the judgment of the Hon'ble Supreme Court in the case of East India Corporation Ltd., v. Shree Meenakshi Mills Ltd., reported in (1991) 3 SCC 230 wherein the Hon'ble Supreme Court has held that the jurisdiction of a Civil Court cannot be invoked by the landlord, unless the Rent Controller, who is the competent authority to order eviction on the ground of denial of title, find that the denial of the landlord's title is bona fide. Even if there is denial of title, the Civil Court has no jurisdiction to entertain the suit for eviction. The learned counsel for the appellant strenuously argued that the status of the first defendant as a tenant will continue even assuming that the money that was paid by first defendant and received by the defendants 2 to 5 is repaid, as there was no surrender of tenancy or merger of the tenancy right when the agreement was executed in 1998 or in 2001. Since the possession of the first defendant as tenant will be revived on the same terms upon repayment of the amount borrowed by the defendants 2 to 5 from the first defendant. The learned counsel for the appellant submitted that there is no forfeiture. The learned counsel for the appellant further submitted that the sale agreement which was referred to by the plaintiff and first defendant is not a transaction which can be accepted as one by which the tenancy was put to an end to. He further submitted that the Courts below have not accepted the plea of oral sale agreement and that therefore there is no forfeiture.
15.As against the submission of the learned counsel for the appellant, the learned counsel for the respondents relied upon the following judgment of the Hon'ble Supreme Court in the case of R.Kanthimathi and others v. Mrs.Beatrice Xavier reported in AIR 2003 SC 4149 wherein it has been held that the relationship of landlord and tenant ceases to exist once the sale agreement is entered into and portion of sale consideration is accepted by seller, land lord. But a close scrutiny of the facts it can be seen that for the purpose of drawing an inference that there will be termination of tenancy it should be proved that there was surrender of lease and that the tenant was put in possession for the purpose of denoting the possession as given in pursuance of the agreement of sale. Paragraphs 5, 6 and 7 of the judgment are relevant and hence, they are extracted as below:
?5. Submission for the tenant is after entering into the agreement, the landlady accepted Rs. 20,000/-confirming delivery of possession in this context which clearly constitute clear intend of the landlady of entering into new relationship with the ten ant under it. On the other hand, learned Counsel for the respondent submits that the words "already been surrendered"
therein, only refer to the existing possession of the tenant and nothing more. So far this sub mission for the respondent we have no hesitation to reject the same. The reference of the words "already been surrendered" has been incorporated with consciousness. This is to be construed in the background of landlady having received major amount of sale consideration and as normally, if substantial sum is received by the seller, the purchaser is put in possession of the property hence to fall in the same lines the said words were used to confirm of this possession in this context. There could be no other reason to record therein as such. Even if it be said to refer to the possession's as a tenant the reassertion in the agreement of sale is only for the purpose of denoting possession given in pursuance to this agreement of sale.
6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when appellants were inducted into tenancy it only means both agreed that their relations is to be that of a landlord and tenant. Later when landlord decides to sell this property to the tenant and tenant agreed by entering into agreement they by their positive act changed their relationship as purchaser and seller. When seller-landlord accepts sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change then their relationship of landlord tenant ceases.
7. This Court in Arjunlal Bhatt Mall Gothani v. Girish Chandra Dutta held as under:
The appellants were tenants in the premises of the respondent-landlord and three suits, including an eviction suit, were pending against them. By an agreement between the appellants and the respondent, the respondent agreed to sell the whole property to the appellants for a certain sum to be paid to him by equal instalments. Clause 5 of the agreement provided that in case of default of any instalment, the agreement for sale would stand cancelled and if the purchasers failed to pay the defaulted instalments within one month's notice the payments made would stand forfeited and purchasers would make over possession of the property to the vendor.
xxx xxx Under Clause (5) of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement, D/ June 7, 1959 was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement.?
This decision clearly spells out that once there is agreement of sale between a land lord and a tenant, the old relationship as such comes to an end. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller.?
16.The learned counsel for the respondents relied upon a judgment of the Hon'ble Supreme Court in the case of Raja Mohammad Amir Ahmad Khan v.
Municipal Board of Sitapur and another reported in 1966 (1) SCJ 484 wherein the Hon'ble Supreme Court has dealt with the scope of Section 111 (g) of Transfer of Property Act. The reading of the whole judgment would indicate that it has no application to the facts of this case and that the ultimate conclusion reached by the Hon'ble Supreme Court in the said judgment would only warrant this Court to come to the conclusion that there was no forfeiture of the lease in the present case by virtue of the agreement dated 28.01.1998 and the subsequent agreement dated 01.03.2001 or the oral agreement of sale. Factually, in the case before the Hon'ble Supreme Court, referred to above, the stand of the tenant in parallel proceedings are extracted as follows:
"The land acquired is part of Jali Kothi or Bungalow Marett Saheb, belonging to me, in the Civil Lines, Sitapur."
"That I and my ancestors have been owners of the land and have been exercising permanent heritable' and transferable rights in this land, openly and to the knowledge and consent of the Government."
"Under a misconception of my rights some wrong entries have been made perhaps by the Patwari without any official order. (The reference here is to his being recorded as a non-occupancy tenant of the land). On the same basis the Municipal Board, Sitapur, disputed my rights of transfer or lease in September, 1947, requested the Government to hand over possession of the plot to the Municipal Board and ultimately persuaded the Government to acquire the land for rehabilitation of refugees, though other vacant lands were available for the said purposes."
"That on account or the conduct of the Municipal Board, Sitapur I have been forced to file a suit in the civil court for declaration of my title in respect of this land."
17.Despite the categorical plea of the tenant in setting up a right in derogation of the right of tenancy, the Hon'ble Supreme Court in the above case has held that there is no forfeiture of lease in that case as the tenant is entitled to set up terms more favourable to himself.
18.The learned counsel for the respondents relied upon the judgment of this Court in the case of Boologanathan v. P.Govindarajan and others reported in 1979 (2) MLJ 47 wherein this Court has held as follows:
?Once it is established that the tenant and in this case the petitioner or the quondam tenant did take up the stand that the respondents are not the real owners of the property, then there is a denial of title. Once there is such a denial of title, any relationship of landlord and tenant automatically gets severed. This severance is caused because of the presumption which arises under Section 111(g) of the Transfer of Property Act, which forfeits the lease by reason of such denial of title. Forfeiture of lease, therefore (sic) does not buttress any such relationship of landlord and tenant even if it existed. Whilst not agreeing with the learned Counsel for the petitioner that there is implied tenancy in the instant case, I hold that even if such an implied tenancy were there, he cannot take advantage of the statutory benefits under the Act, since he or the quondam tenant persisted in denying the title of the landlord and thereby caused the attraction of the principle contained in Section 111(g) of the Transfer of Property Act.?
19.The learned counsel for the respondents further relied upon a judgment of the learned Single Judge of this Court in Meenakshi Amma v. Kizhakke Valath Narayani and others reported in 1956 (2) MLJ 235 wherein it has been held that the acceptance by a lessee who takes a possessory mortgage of his leasehold from the lessor with an obligation to surrender possession of the property on redemption by payment of the mortgage money, implies the non-existence of his right to continue in possession of the property as lessee. It is specifically held in this case that there is no question of leasehold right being in abeyance and getting revived on the redemption of the mortgage.
20.Having regard to the judgments of the Hon'ble Supreme Court which was cited by the learned counsel for the appellant, which are referred to in this judgment earlier, the judgment of this Court above referred to is not a good law and it can be treated as impliedly overruled by the Hon'ble Supreme Court though the judgment of this Court was not referred to by the Hon'ble Supreme Court. The learned counsel for the respondents then relied upon a judgment in the case of Dhulilal v. Pannalal reported in AIR 1963 Rajasthan 110 wherein at paragraph 8 it has been held as follows:
?In other words, the right of redemption properly connotes getting back possession of the property where it was in the possession of the mortgagee. It seems to me therefore that this condition was and is also inconsistent with the right of the defendant to remain in possession of the mortgaged property even after it had been redeemed by the plaintiff.?
21.The view expressed by the Rajasthan High Court in the above judgment is also contrary to the law laid down by the Hon'ble Supreme Court. Hence, this judgment cannot be relied upon. Then, the learned counsel for the respondents, relied upon another judgment of the Karnataka High Court in the case of Smt.Rachavva and another v. Kariyappa Siddappa Itagi and another reported in AIR 1981 Karnataka 76 for the proposition that a tenant disputing a title of landlord by setting up a plea of adverse possession, cannot fall back upon the tenancy in view of Section 111 of the Transfer of Property Act. In the present case, the first defendant does not deny or dispute the title of the defendants 2 to 5 or the plaintiff. Hence, this has no application to the facts of this case. For the same proposition, the learned counsel for the respondent also relied upon a judgment of the Orissa High Court in the case of Batakala Budhia Patro v. Durgasi Dandasi Patro and others reported in AIR 1978 Orissa 103 and another judgment of the Himachal Pradesh High Court in the case of Shiv Prashad v. Smt. Shila Rani reported in AIR 1974 Himachal Pradesh 22, dealing with Section 111 of the Transfer of Property Act. Having regard to the facts of this case, the above judgments are not applicable to the present case.
22.The learned counsel for the respondents also relied upon the judgment of the Hon'ble Supreme Court in the case of Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (Dead) Through LRS reported in (2012) 5 SCC 370 wherein the Hon'ble Supreme Court has held as follows:
?66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.?
23.From the judgments cited by the learned counsels on either side, it can be safely concluded that the agreements dated 28.01.1998 and 01.03.2001 will not put to an end to the tenancy that was subsisting between the first defendant and the plaintiff's predecessor-in-interest. After the repayment of money which was advanced to the plaintiff's predecessor-in- interest earlier, the original tenancy would revive. Hence, for the purpose of present suit, it cannot be said that there is no tenancy because of the successive agreement under Ex.A1, dated 23.01.1998 and Ex.A2 dated 01.03.2001.
24.The next issue is with regard to the oral agreement of sale. Nowhere, in the written statement of the first defendant, it is stated that the continuation of possession by the first defendant is pursuant to the sale agreement. It was never the case of the first defendant that the nature and character of possession was changed after the alleged sale agreement. The case of the plaintiff also is very clear that there was no such sale agreement and that possession of first defendant was not in pursuance of any sale agreement. Though it was alleged by the first defendant that the entire sale consideration was paid, the written statement only reveals that the first defendant wants to project his case under the agreement of sale, as a right to enforce the agreement of sale. If the plea of the first defendant regarding the oral sale agreement does not put to an end to the tenancy agreement, the appellant's plea in this appeal that she continues to be a tenant and that the tenancy is subsisting has to be accepted. Once the case of the appellant is admitted that she is a tenant, the suit for eviction or recovery of possession is not maintainable in view of the fact that the Rent Controller has exclusive jurisdiction to deal with this matter. The Civil Court's jurisdiction is impliedly ousted. The judgment of the Hon'ble Supreme Court reported in 1991 3 SCC 230 also lend support to the argument of the learned counsel for the appellant.
25.In the above circumstances, the questions of law 1 and 2 raised are answered in favour of the appellant and the appeal is allowed. The judgment and decree of the appellate Court in A.S.No.7 of 2014, dated 30.11.2015 confirming the judgment and decree of the trial Court in O.S.No.140 of 2012, dated 20.12.2013 is set aside. However, it is open to the plaintiff / first respondent to approach the Rent Controller for eviction in accordance with law. There is no order as to costs. Consequently, the connected miscellaneous petition is closed.