Madras High Court
Peria Karuppan vs Potti Ammal (Deceased) And Velu on 13 September, 2002
Equivalent citations: (2002)3MLJ810, 2003 A I H C 660, (2003) 1 RENCJ 180 (2002) 3 MAD LJ 810, (2002) 3 MAD LJ 810
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. Periya Karuppan, the appellant herein is the defendant in the suit filed by the respondent Potti Ammal. Having lost in both the Courts below, the defendant has filed this second appeal.
2. Potti Ammal, the first respondent/plaintiff filed a suit for declaration that the plaintiff is the tenant of the land alone and owner of the superstructure in the schedule property and entitled to the benefits and rights under the Madras City Tenants Protection Act and for permanent injunction restraining the defendant from interfering with her peaceful possession and enjoyment of the suit property. Ultimately, the suit was decreed. The appellate Court in the appeal filed by the defendant would as well confirm the said decree in favour of the plaintiff. Hence, the second appeal.
3. The case of the plaintiff is as follows:
"The plaintiff is the tenant of the land mentioned in the suit schedule. She constructed a hut therein. She was paying rents for the land to one Ambika, the owner of the land. The plaintiff became the tenant of the land in the year 1943. As the tenant of the land and owner of the superstructure, she is entitled to the rights and benefits of the Madras City Tenants Protection Act. On 28.3.1982, one Premchand sent a notice to the plaintiff intimating that he purchased the suit property, namely the land and called upon the plaintiff to pay the monthly rent to him. Since she did not receive any notice from Ambika, the landlady, she replied suitably to the said Premchand. Thereafter, Premchand sold the suit land to Periya Karuppan, the defendant, by a sale deed. On the strength of the sale deed, the defendant through rowdy elements threatened the plaintiff stating that the plaintiff would be dispossessed from the suit land and the superstructure. Hence, she filed the suit for the above reliefs."
4. The case of the defendant is as follows:
"The defendant purchased the suit land of 390 sq.ft. from one Prem Chand under the sale deed dated 31.12.1982. This suit land originally belonged to one T.S. Bakthavatsalam from whom, the said Premchand purchased the same by the sale deed dated 31.8.1981. The plaintiff is not the tenant under Ambika, since Ambika is not the owner of the land. The plaintiff came into possession only in the year 1971 and constructed a superstructure only in the land to the extent of 10' x 10'. After the purchase, the defendant notified the same to the plaintiff as well as to one Mari, another tenant. The defendant met the plaintiff personally and disclosed her the sale in his favour. The plaintiff entered into an agreement of sale dated 6.6.1983 in respect of the superstructure constructed by her for Rs. 3,000/- and received an advance of Rs. 500/-. The plaintiff is not the tenant. Therefore, she would not be entitled to the relief under the City Tenants Protection Act. Hence, the suit is liable to be dismissed."
5. On the strength of the above pleadings, necessary issues were framed. On the side of the plaintiff, the plaintiff examined herself as P.W.1 and marked Exs.A1 to A19. On the other side, the defendant examined himself as D.W.1 and marked Exs.B1 to B4. Ultimately, the trial Court accepted the case of the plaintiff and decreed the suit. This was confirmed by the appellate Court. Hence, this second appeal.
6. When the second appeal was admitted, the following substantial question of law was formulated:
"Is a tenant of land entitled to a declaration that he is a tenant entitled to purchase the land under Section 9 of the Madras City Tenants Protection Act, even without a suit for ejectment pending by the landlord as contemplated under Section 9 of the said Act?
7. In elaboration of the above substantial question of law, the arguments were advanced by the counsel for the appellant.
8. According to the counsel for the appellant, there is no landlord-tenant relationship between the plaintiff and the defendant. Admittedly, the plaintiff did not pay rent amount either to Premchand or to the defendant and adding to that, the plaintiff herself had entered into a sale agreement on 6.6.1983 agreeing to sell the superstructure and as such, the plaintiff would not be entitled to the relief under Section 9 of the Madras City Tenants Protection Act, that too in the absence of any ejectment suit filed by the defendant.
9. To substantiate his plea, he cited the authorities in BALAKRISHNAMARAJA, P.S. AND OTHERS v. S.K. ALAGAR RAJA AND OTHERS (1994(1) L.W.582), NATESA NAICKER v. VEDAGIRI (1975 I M.L.J.301), KUPPA BAI v. RAJAGOPAL NADAR (1969 II M.L.J.541), T.R.P. RAJA SEKARA BHOOPATHY v. NAVANEETHAMMAL (Vol.92 L.W.259), SUNDARESWARAR DEVASTANAM v. MARIMUTHU and DHARMALINGAM v. S. MAHALINGAM (100 L.W.267).
10. In reply to the said submission, it is contended by the counsel for the respondents that both the Courts would hold that the plaintiff is the tenant in respect of the land and owner of the superstructure and as such, she would be entitled to declaration and for permanent injunction and since the relief does not compel the defendant to sell the land, the suit is maintainable under Section 34 of the Specific Relief Act seeking for the relief of her status and rights. He would also submit that this Court in second appeal cannot interfere with the concurrent findings of fact by invoking Section 100 C.P.C. as laid down in KONDIVA DAGADU KADAM v. SAVITRI BAI SOPEN GUJAR AND OTHERS and SUBBA REDDIAR v. VASANTHA AMMAL .
11. I have carefully considered the rival contentions and gone through the records.
12. According to the plaintiff, she is the tenant in respect of the suit land and owner of the superstructure and as such, she would be entitled to the declaration of her rights in respect of both the land and the superstructure and consequently, she is entitled to get injunction.
13. It is mainly contended by the counsel for the appellant that the suit is not maintainable when the relief is sought for under Section 9 of the Madras City Tenants Protection Act in the absence of ejectment suit filed by the appellant/defendant.
14. On going through Exs.A4 to A16, it is clear that the superstructure was constructed by the plaintiff and in respect of the land in which superstructure was constructed, the plaintiff was paying the rents to one Ambika, who is the wife of T.S. Bakthavatsalam, the owner of the land. It is also mentioned in Ex.A14, the sale deed executed by the said T.S. Bakthavatsalam, the owner of the land in favour of Premchand, that there is a specific reference about the superstructure constructed by Potti Ammal, the plaintiff, the tenant under the owner of the land.
15. As a matter of fact, in Ex.A14, the owner of the land would specifically mention that Potti Ammal, the plaintiff was the owner of the superstructure and the land is under the lease to the said Potti Ammal and as such, only symbolical possession was given to Premchand by the said Bakthavatsalam. Therefore, it cannot be contended that the plaintiff was never the tenant under the owner of the land.
16. It is also an admitted fact that after Premchand purchased the property, he claimed rent from the plaintiff. Though the rent was not paid to him, it is seen from the records that on receipt of notice, Potti Ammal, the plaintiff sent a reply stating that she is the tenant in respect of the land and she did not receive any notice from the original landlord about the sale of the property to the said Premchand.
17. Even according to written statement, the defendant stated that even prior to the purchase of the land from Premchand, he informed the plaintiff that he would propose to purchase the land and even after the purchase, he sent notices both to the plaintiff and another tenant Mari. Under those circumstances, it cannot be contended that the plaintiff is not the tenant under the present landlord.
18. Even though Ex.B4 agreement of sale for superstructure was denied by the plaintiff, the defendant/appellant would state that by Ex.B4, the plaintiff agreed to sell the superstructure and received the advance of Rs. 500/- towards the sale consideration of Rs. 3,000/-. The perusal of Ex.B4 would make it clear that the plaintiff had agreed to vacate the premises and hand over the same to the defendant after registration of the sale deed. This would show that the plaintiff would be continued to be a tenant under the appellant.
19. As pointed out by the counsel for the respondent, the tenancy rights of the plaintiff are transferred automatically under the sale effected by Bakthavatsalam in favour of Premchand and by Premchand in favour of Periya Karuppan, the appellant herein.
20. Even though in the written statement, the appellant had stated that the hut belonged to one Mari, he stated in the evidence that the appellant only put up a hut and let out the same for a monthly rent of Rs. 40/-. If it is so, there is no necessity for the appellant to obtain an agreement of sale from the plaintiff. It is the specific case of the plaintiff that she only constructed the hut and one portion of the hut was let out to the said Mari.
21. The main point urged by the counsel for the appellant that the plaintiff would not be entitled to the rights under Section 9 of the Madras City Tenants Protection Act, as it can be invoked only when ejectment suit was filed by the landlord against the tenant.
22. It is true that in the decision cited by the counsel for the appellant, it is held that tenant cannot claim right under Section either 3 or 9 of the Tamil Nadu City Tenants Protection Act, when there is no suit in ejectment filed by the landlord and a proceeding for ejectment is a sine qua non before a claim under Section 9 can be made.
23. But, it is to be pointed out that it is observed by this Court in NAGARATHNAMMAL v. R. MUNUSWAMI (82 L.W.14 S.N.) as follows:
"It is open to a court to grant a bare declaration on the facts of a case, in a suit by a large number of plaintiffs that they are entitled to the benefits of the Madras City Tenants Protection Act, 1955. Whether the plaintiffs would be entitled to the benefits of a particular section, like S. 9 of the Act, which involves its own conditions or terms, for its applicability, is obviously a matter that has to be left open."
24. In view of the above settled position of law, in the present suit, the Court cannot give declaration in respect of the rights under Section 9 of the Act. But however, the Court has got jurisdiction in the light of the facts of the case to declare the right and status of the plaintiff as a tenant in respect of the land and owner of the superstructure.
25. With regard to the relief under the benefits and rights under Sections 3 and 9 of the Act, as rightly pointed out by the counsel for the appellant, the claim can be made by the tenant only when the suit for ejectment is filed by the landlord.
26. In the plaint filed by the plaintiff, the following prayer is made:
"The plaintiff therefore prays for a judgment and decree against the defendant for (a) Declaration that the plaintiff is a tenant of the land alone and owner of superstructure situate at No.42, Varasidhi Vinayagar Koil Street, Vellala Teynampet, Madras-600 086 and described morefully in the schedule given hereunder and entitled to the benefits and rights under the Madras City Tenants Protection Act No. III of 1921 and as subsequently amended including the right to purchase the suit land described in the schedule given hereunder.
(b) A permanent injunction restraining the defendant, his men, servants, agents or others acting on his behalf from interfering with the peaceful possession and enjoyment of the suit property described morefully in the schedule given hereunder."
27. As both the Courts below would hold, there is no difficulty in confirming the finding that the plaintiff is a tenant of the land alone and owner of the superstructure of the suit property and is entitled for permanent injunction. However, the claim with reference to the benefits and rights under the Madras City Tenants Protection Act including the right to purchase the suit land cannot be granted as the same could be considered in a separate proceeding, as pointed out by various decisions referred to above.
28. Furthermore, the suit schedule property would refer to the area of 450 sq.ft. But, the property in question as per Exs.A14 and A17, is only 390 sq.ft.
29. Under those circumstances, the plaintiff would be entitled to declaration that she is a tenant under the defendant in respect of the land alone and owner of the superstructure and she is entitled to protection as a tenant under the Act in respect of the area of 390 sq.ft. alone and also for permanent injunction for peaceful possession and enjoyment in respect of the same. The relief in regard to the benefits and rights under Sections 3 and 9 of the Act and consequent rights to purchase the suit land could be considered only in a separate proceeding. The decree is modified to the above effect. Thus, the second appeal is partly allowed. No costs.