Madras High Court
Govindaswami Pillai vs Manoranjitham Ammal And Another on 13 March, 1998
Equivalent citations: 1998(3)CTC200
ORDER
1. The defendant is the appellant. The respondents 1 and 2 instituted the suit O.S.No.32 of 1981 on the file of the Sub-Court, Chidambaram against the appellant herein for recovery of possession of four items of suit properties, for recovery of Rs.9,000 towards past mesne profits and for future mesne profits.
2. The trial court dismissed the suit in respect of the suit item 1 and 2 and decreed the suit in respect of the suit items 3 and 4, besides relegated the parties for ascertainment of mesne profits under Order 20, Rule 1, CPC. The respondents preferred A.S.No.167 of 1983 on the file of the District Court, South Arcot at Cuddalore. The appellant herein preferred cross Objections. The first appellate Court allowed the appeal and granted a decree as prayed for possession in respect of the four items and relegated the claim of mesne profits by proceedings under Order 20, Rule 12, CPC.
3. Being aggrieved, the defendant has preferred this second appeal. For convenience, the parties will be referred to as arrayed in the trial court.
4. Before setting out the pleadings, it is essential to record that the title of the plaintiffs for all the four items is not disputed. The learned counsel for the appellant/defendant confined the claim in this appeal in respect of the items 1 and 2 and fairly admitted that the appellant is giving up claim in respect of the suit items 3 and 4 and as such the decree of the courts below in respect of the items 3 and 4 may be confirmed. In this Second Appeal, we are concerned with suit item 1 and 2 alone.
5. The plaintiffs claim that they are the owners of suit item 1 and 2. The plaintiffs and the defendant entered into an agreement, agreeing to sell and purchase the suit properties and the agreement was entered between them on 4.8.1975, whereby the plaintiffs agreed to sell the suit properties to the defendant for a total consideration of Rs.24,000 while acknowledging the payment of Rs.4,000 towards advance. The parties have agreed to complete the sale before 30.12.1975. The plaintiff claim that under the agreement the possession of the properties have been handed over to the defendant and the defendant had failed to perform his part of the contract. As the defendant had committed breach of the agreement to purchase, the defendant had forfeited his rights of tenancy in respect of the suit properties. Hence, the suit for a recovery of possession of all the four items and for recovery of mesne profits.
6. To the notice issued by the plaintiffs, the defendant had sent, a reply claiming that he is a tenant in respect of the suit properties 1 and 2, that the plaintiffs are not entitled for recovery of possession and that the suit for mesne profits also is not maintainable before the Civil Court. Per contra, the defendant pleaded that he is in possession of the suit properties 1 and 2 as a cultivating tenant, that his name has been entered in the record of Tenancy relating to the suit properties, that the plaintiff's are not entitled for recovery of possession, that it is the plaintiff, who had committed breach as they have gone back on their promise, that the defendant has paid Rs.5,000 during August, 1975; Rs.2,000 as well that the defendant called upon the plaintiffs to execute the deed of sale and that the plaintiffs have failed to comply. The defendant also pleaded that the defendant had sent a reply.
7. On the pleadings, the trial court framed as many as 9 issues. The second plaintiff examined himself as PW1, besides two others as PWs 2 and 3, while the defendant examined himself as DW1. The plaintiffs marked Exs.A1 to A8, while the defendant had marked Ex.B1 a lease deed.
8. The trial Court by judgment dated 26th April 1983 dismissed the suit in respect of the suit items 1 and 2 and decreed the suit in respect of items 3 and 4 and relegated the parties for ascertainment of mesne profits by proceedings under Order 20, Rule 12, CPC. In respect of the suit items 1 and 2, the trial court rendered a definite finding that the defendant is a cultivating tenant, that the defendant continued to be a cultivating tenant in respect of the suit items 1 and 2, that the plaintiffs cannot recover possession from the defendant in respect of the suit items 1 and 2 before the Civil Court and that the Civil Court has no jurisdiction in respect of the suit items 1 and 2. In respect of the items 3 and 4, the trial court found that the defendant is not a cultivating tenant in possession and that he cannot resist the suit for. recovery of possession in respect of the items 3 and 4 of the suit properties.
9. On appeal by the plaintiffs, the first appellate Court allowed the appeal preferred by plaintiffs dismissed the cross objections and decreed the suit in its entirety, while holding that the defendant had forfeited his tenancy in respect of the suit items 1 and 2 as his possession is that of a purchaser and that the defendant cannot claim tenancy nor he could claim the benefits of Tamil Nadu Cultivating Tenants Protection Act. Being aggrieved, the defendant has preferred the present second appeal At the time of admission, the following substantial questions of law were framed:-
"1. Whether the Court below, having found that the defendant is not a cultivating tenant in respect of items 1 and 2 of the suit lands from 1960 onwards, is legally correct in arriving at his conclusion?
2. Whether even under the sale agreement the defendant is continued as a cultivating tenant as there is a recital regarding the character of posses-sion?
3. Whether the suit for possession is maintainable in a Civil Court?
4. In any event whether the court below should have held that the defendant is entitled to protection against dispossession in view of Section 53-A of the Transfer of Property Act in respect of all the suit items".
10. Mr. R.G. Rajan, learned counsel appeared for the defendant/appellant while Mr. P. Sukumar appeared for the respondent and sought to support the judgment of the trial court. Mr. P. Sukumar vehemently contended that no interference is called for with respect to the judgment and decree of the first appellate court in respect of items 1 and 2 as according to the learned counsel, the character of possession of the defendants in respect of the suit items 1 and 2, on and after Ex.A1 sale Agreement dated 4.8.1975 is not that of tenant and the defendant is in possession of the suit items in terms of the sale agreement and part performance of the sale agreement, besides pointing out that the defendant cannot still contend that he is a tenant of the suit property after the sale agreement Ex.A1.
11. As already pointed out Mr. R.G. Rajan, learned counsel for the appellant contended that he is not challenging the decree of the trial court as confirmed by the first appellate court in respect of the suit items 3 and 4 as admittedly, the defendant was never a tenant in respect of the said two items.
Hence the judgment and decree of the trial court as confirmed by the first appellate court in respect of the two items 3 and 4 have to be confirmed.
12. The legal contention raised by Mr. R.G. Rajan, learned counsel for the appellant is well supported by catena of decisions of this court as well as Supreme Court namely:-
1. Annamalai Goundan v. Venkatasami Naidu and others, 1959 (1) MLJ 301. 2. Sardar Govindrao Mahadik and another v. Devi Sabai and others, . 3. R. Ranganayaki Ammal v. Namagiri Venkataraman, 1994 (II) L.W. 148. 4. R. Kanthimathi and another v. Beatrie Xavier, 1996 (1) MLJ 666. 5. Vellaiyan v. Mookammal, 1997 TLNJ 289.
13. It is well Settled that even after the owner agreeing to sell, the ownership continues to be with the owner and the agreement will not create any interest in the property in favour of the purchaser, who had agreed to purchase and as such there is no scope for merger.
14. In the present case, admittedly the defendant is a tenant in respect of the suit items 1 and 2, even prior to this agreement to purchase the land under Ex.A1 dated 4.8.1975. In fact the defendant, admittedly in respect of the suit items 1 and 2 had been registered as a cultivating tenant and his name finds place in the approved tenancy register. There is no controversy that the defendant is in possession of the, suit items 1 and 2 even prior to sale agreement and he continued as such even after Ex.A1 sale agreement dated 4.8.1975. It is not the case of the plaintiff that the defendant has been inducted into possession of the suit items 1 and 2 under the Ex.A1 sale agreement as part performance of the Agreement to sell. Further it is not the case of the plaintiffs under Ex.A1 sale agreement, the defendant was inducted into possession of the suit items 1 and 2 for the first time or the defendant is in possession of the suit items 1 and 2 in part performance of the agreement of sale under Ex.A1 dated 4.8.1975.
15. It has not been pleaded nor it has been established that the character of the possession of the defendant in respect of the suit items 1 and 2 changed on and after 4.8.1975. It has been rightly pointed out by Mr. R.G. Rajan, learned counsel for the defendant that the defendant continued to be a tenant and there has been no merger and it is not the intention of the parties to give up tenancy at any point of time, much less on 4.8.1975 when the sale agreement was entered into.
16. It has been rightly pointed out that the status of the defendant in respect of the suit items 1 and 2 is wholly as a tenant and the defendant remains so always, much less after Ex.A1 sale agreement dated 4.8.1975. It has not been recited in Ex.A1 sale agreement that the possession of the defendant on and after 4.8.1975 is in terms of the sale agreement and that he is in possession of the suit items 1 and 2 as and by way of part performance of the agreement to sell. It is also to be pointed out that there is no recital in Ex.A1 neither there is any evidence to show that the defendant had given up the tenancy and accepted possession as a purchaser under Ex.A1 and in part performance of the said agreement.
17. Further under Ex.A1 sale agreement, it has been stipulated that even for the period subsequent to 4.8.1975 the defendant has to measure the lease paddy. The recital in Ex.A1, which is heavily relied upon the Mr. R.G. Rajan, learned counsel for the appellant reads thus:-
18. Thus it is evident that the plaintiffs themselves had accepted the tenancy of the defendant and having recognised him only as a tenant in possession of the suit property and (he defendant had agreed to pay the rent even for the period subsequent to the sale agreement Ex.A1 dated 4.8.1975. Thus, the obvious intention of either parties on the date of the sale agreement being that the defendant, who is the tenant in respect of the suit items 1 and 2 is continuing as a tenant and it is not as if the defendant has either been put in possession in part performance of the agreement to sell or the defendant had given up his tenancy rights in respect of the suit items 1 and 2. There is no further oral or documentary evidence to indicate that the defendant is in possession of the property from the date of sale agreement as a person inducted into possession by way of part performance and on the other hand the parties have consciously agreed that the status of the defendant would continue to be that of a tenant in respect of the suit items 1 and 2.
19. As such there has been ho merger of the tenancy rights which the defendant was holding as in respect of the suit items 1 and 2 nor such a right could be deemed to have been enlarged. The defendant's right of tenancy continues and it is not as, if the term of tenancy has expired. It is not the case of the plaintiff that the defendant was allowed to continue in possession of the property in part performance of the contract of sale. There is neither pleading nor there is evidence to show that there has been a part performance of the agreement to sell. In fact under the very agreement to sell the defendant's status and his tenancy had been well accepted and recognised by the plaintiffs. Such a status of the defendant continued to remain the same, otherwise there may not be any necessity or warrant for the parties agreeing to measure the paddy for the period subsequent to Ex.A1 sale agreement. No question of, merger arises on the facts of this case.
20. In Sardar Govindrao Mahadik and another v. Devi Sabai and others, , the Apex Court hold thus:-
" To some extent, therefore, the statement of law, in Maddison's case (1882-83) 8 AC 467 that it may be taken as well settled that the payment of part of purchase money or even the whole of the consideration is not sufficient act of part performance can be taken to have been shaken considerably from its foundation.
While text book writers and English decisions may shed some light to illuminate the blurred areas as to whether part payment of purchase money or even the whole of the consideration would not be sufficient act of part performance, it is necessary that this aspect may be examined in the background of statutory requirement as enacted in Section 53-A. To qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. When series of acts are done in part performance, one such may be payment of consideration. Any one act by itself may or may not be of such conclusive nature as to conclude the point one way or the other but when taken with many others payment of part of the consideration or the whole of the consideration may as well be shown to be in furtherance of the contract. The correct approach would be what Lord Reid said in Steadman's case, 1974 (2) All. E.R 977 that one must not first look at the oral contract and then see whether the alleged acts of part performance are consistent with it. One must first look at the alleged acts of part performance and see whether they prove that there must have been a contract and it is only if they do so prove that one can bring in the oral contract. This view may not be wholly applicable to the situation in India because an oral contract is not envisaged by Section 53-A. Even for invoking the equitable doctrine of part performance there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Therefore, the correct view in India would be, look at that writing that is offered as a contract for transfer for consideration of any immovable property and then examine the acts said to have been done in furtherance of the contract and find out whether there is a real nexus between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who after having taken advantage or benefit of the contract backs out and pleads non-registration as defence, a defence analogous to S. 4 of the statute of frauds".
21. In Ranganayaki Ammal v. Namagiri Venkataraman, 1994 (2) LW 148, Ratnam, J. as he then was held thus:-
" In the absence of production of the agreements, it cannot be assumed that the obligation of the petitioner to pay the rents came to an end either on 28.8.1969 or on 5.11.1969 and there of, the petitioner should be regarded as having continued to remain in possession free from the obligation to pay the rent to the landlord. It is in this connection, a reference to the decision in Duraiswami Nadar v. Nagammal 1981 (l) MLJ 35 becomes necessary. It was pointed out in that decision that unless the agreement of sale itself, in specific terms, refers to the fact that the liability to pay rent had Ceased, it cannot be concluded that the relationship of landlord and tenant had also come to an end. Indeed, in Govind Rao Mahadik v. Devi Sabai, the Supreme Court pointed out at page 1001 and 1002 as follows:-
" Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior of the contract and continues to retain possession.
If a person claiming benefit of a part performance is inducted into possession for the first time pursuant to the contract, it would be strong evidence of the contract and possession changing hands pursuant to the contract.
"Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the Court would expect something independent of the mere retention of possession to evidence part performance. Therefore, mere retention of possession is quite legal and valid if mortgage with possession is not discharged, could hardly be said to be an act in part performance unequivocally referable to the contract of sale."
From the aforesaid observations 6f the Supreme Court it is clear that the mere retention of earlier possession as tenant would not be sufficient, but that there must be some independent material or evidence to establish that the retention of possession was as a result a part performance of the agreement to sell. In this case, there is absolutely no material whatever to show that the nature of the possession changed its character after 28.8.1969 or even after 5.11.1969. Though learned counsel relied strongly on John John V. Goolamally Estates, etc., 1969 T.L.N.J. 311 (supra), it is seen that that decision had not taken note of the decision of the Supreme Court referred to earlier and reported in Govindrao Mahadik V. Devi Sabai, . The observation therein that the old theory that the contracting party must be inducted into possession pursuant to the agreement is no longer valid, appears to be too widely stated and also against the dictum of me Supreme Court, referred to earlier and cannot, therefore, be pressed into service by learned counsel for the petitioner to contend, that there is no relationship of land lord and tenant between the respondent and the petitioner after 28.8.1969 or 5.11.1969. In the absence, therefore, of independent material to show that possession of the permises by the petitioner after 28.8.1969 or even 5.11.1969, was in part-performance of the agreements of sale, it would follow that her possession continued as before without any change, that is to say, she continued to be a tenant of the respondent with the obligation to pay the rents in respect of her occupation of the premises.
22. S.S. Subramani, J. has also taken an identical view in Vellaiyan v. Mookammal, 1997 TLNJ 282 and the learned judge while following Govindrao v. Devi Sabai, and R. Ranganayaki Ammal v. Namagiri Venkataraman, 1994 (2) L.W. 148 reiterated the principles that an agreement for sale does not create any interest in land and while considering the question as to when a merger takes place, the learned Judge held thus:-
" In this case, there is only an agreement for sale, and the ownership continued to be with the owner and the Transfer of Property Act says that the agreement will not create any interest in the property. There is no scope for any merger and there cannot be a larger or user estate coming to the same person.
The contention, is therefore, rejected."
23. The learned counsel for the plaintiff accepted the finding that the defendant is a tenant in respect of the suit items 1 and 2 and only on that basis submitted his arguments. The contention raised by the learned counsel for the plaintiffs cannot be sustained in the light of the law laid down by the Apex Court as well by this court.
24. The view taken by the first appellate court runs counter to the law laid down by the Apex Court as well this court. The first appellate court mis-directed itself in proceeding as if the defendant had given up the tenancy and he is in possession of the land only under the sale agreement and by way of part performance, which view of the first appellate Court cannot be sustained.
25. For the foregoing reasons, while confirming the judgment and decree of the trial court in respect of the suit items 3 and 4, this Court answers the substantial question of law in favour of the defendant/appellant and set aside the judgment of the first appellate court with respect to suit items 1 and 2. The suit shall stand dismissed with respect to suit items 1 and 2 and the decree of the trial court as confirmed by the first appellate court will stand confirmed in respect of the items 3 and 4 alone. It is made clear that it is open to the respondents in this Second Appeal to take appropriate action as may be open to them before the competent Forum with respect to suit items 1 and 2 for such reliefs as they deem fit. No Costs.