Madras High Court
The Pazhaverkadu Venkatasamy vs V.Pushpaleela on 3 June, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.06.2014 Coram THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.R.P.(NPD).Nos.797 and 798 of 2006 The Pazhaverkadu Venkatasamy Gramani Trust represented by its Trustee, S.Venkataraman, office at 128, Kamarajar Salai, R.A.Puram, Chennai-28. ... Petitioner in both CRPs Vs. V.Pushpaleela .. Respondent in both CRPs Prayer in C.R.P.(NPD).No.797 of 2006 :- This Civil Revision Petition is filed under Section 115 of Code of Civil Procedure against the order and decreetal order dated 07.04.2005 passed in M.P.No.81 of 2004 in E.P.No.199 of 2003 in Ejectment Suit No.75 of 1990, on the file of Registrar, Small Causes Court, Chennai. Prayer in C.R.P.(NPD).No.798 of 2006 :- This Civil Revision Petition is filed under Section 115 of Code of Civil Procedure against the order and decreetal order dated 07.04.2005 passed in E.P.No.199 of 2003 in Ejectment Suit No.75 of 1990, on the file of Registrar, Small Causes Court, Chennai. For Petitioner : Mr. T.V.Krishnamachari For Respondent : Mr.M.Devendran C O M M O N O R D E R
Both Civil Revision Petitions are filed by the decree holder against the order made in M.P.No.81 of 2004 and also order passed in main E.P.No.199 of 2003 in Ejectment Suit No.75 of 1990 on the file of Registrar, Small Causes Court, Chennai.
2. For the sake of convenience, the petitioner in E.P.No.75 of 1990 and respondent in M.P.No.81 of 2004 referred as revision petitioner and the respondent in E.P.No.75 of 1990 and petitioner in M.P.No.81 of 2004 referred as respondent hereafter.
3. Heard the learned counsel for both sides and perused the materials available on records.
4. On the side of the revision petitioner filed ejectment suit No.75 of 1990 under Order 7 Rule 1 read with Section 41 of Madras Presidency Small Causes Court Act, for eviction of the respondent from the schedule mentioned property before Court of Small Causes, Chennai. The above said Court decreed the suit on 06.11.1996 and directed the respondent herein to vacate and deliver the possession of the suit property to the revision petitioner and granted two months time to vacate the premises. As per the above said decree and judgment of the Court of Small Causes, Chennai, the revision petitioner filed execution petition in E.P.No.199 of 2003 under Order 21 Rule 2 of Madras Presidency Small Causes Court Act, for delivery of vacant possession. During the pendency of the above said execution proceedings, the respondent herein filed miscellaneous petition M.P.No.81 of 2004 under Section 47 of CPC to dismiss the execution proceedings filed in E.P.No.199 of 2003.
5. The respondent herein stated in the affidavit filed in M.P.No.81 of 2004 that the superstructure bearing Door No.7 was originally owned by Devi and two others. The respondent herein purchased the superstructure put up on the suit property together with the lease hold right over the land in the year 1988. Further, the respondent also atorned the tenancy in favour of the respondent by paying the rent only on the basis of information given by the vendors. In the year 1999, through a letter dated 07.04.1999 received from Tahsildar, the respondent came to know that the suit land belongs to Kolavizhi Amman Temple and does not belong to the revision petitioner. Hence, the respondent herein filed a suit in O.S.No.2769 of 1999 on the file of the II Assistant City Civil Court, Chennai against the revision petitioner herein and Arulmigu Kolavizhi Amman Temple to decide the question of title and the suit is still pending. In the above said suit, one Dakshinamurthy and five others filed an application to implead them as parties in I.A.No.1998 of 2002 claiming ownership over the land covered under present R.S.No.2364/1 and old R.S.No.2364. Further, the above said Temple also filed a suit and the same is pending before High Court. The revision petitioner obtained a decree against this respondent, on the basis of scheme decree passed in C.S.No.221 of 1951. According to the respondent, the scheme decree do not cover the property comprised in S.No.2364, New S.No.2364/1. On the other hand, it refers two properties in Mylapore i.e., i) Old R.S.No.2711/3, New R.S.No.1356 and another ii) Old R.S.No.2711 and New R.S.No.2355. Therefore, as per the documents relied on by the revision petitioner itself shows that the revision petitioner do not have any right or title over the property and the execution petition filed by the revision petitioner has become in executable for want of title over the land. Therefore, prayed for dismissal of the above said execution proceedings.
6. The revision petitioner herein filed a detailed counter in the above said M.P.No.81 of 2004, in which, it is stated that the respondent herein already raised the above said issue in earlier M.P.No.4 of 2004 filed under Section 47 CPC and the above said petition was dismissed and become final. The respondent herein filed this petition M.P.No.81 of 2004 again on the same ground under Section 47 CPC and therefore, it is barred by res-judicata. Further, the executing court cannot go beyond the decree. According to the revision petitioner, the respondent herein entered appearance in the ejectment suit No.75 of 1990 and filed M.P.No.2 of 1991 under Section 9 of the Madras City Tenant Protection Act, to sell the suit property to the respondent. Further, the respondent herein also filed written statement in the above said suit. Subsequently, the respondent herein remained exparte in the main suit and then the respondent filed a petition in M.P.No.744 of 1997 to set aside the exparte decree, with a delay of 187 days, but, the above said miscellaneous petition was dismissed on 23.02.1999 on merits and decreed the ejectment suit filed by the revision petitioner and become final. Subsequently, the respondent herein denied the title of the suit property and filed a suit in O.S.No.2769 of 1999 on 21.04.1999 and sought for the relief of permission to deposit the rent and also seeking injunction against this revision petitioner and also Kolavizhi Amman Temple. But, the alleged owner (i.e.,) the above said Kolavizhi Amman Temple remained exparte and injunction also not granted in the above said suit. Further, the respondent herein cannot invoke the provisions of the amended Tamil Nadu City Tenants Protection Act, 2 of 1996 and claim any right to purchase the property or any compensation for superstructure. Further, the respondent herein is estopped from denying the title of the decree holder. Therefore, the decree obtained by the revision petitioner is executable decree. This M.P.No.81 of 2004 is filed in order to stall the execution proceedings. The respondent herein has no locus standi to question the scheme decree passed in C.S.No.221 of 1951. Further, the objection raised by the respondent herein is highly belated. According to the revision petitioner, the Revision petitioner Trust is the absolute owner of the property and there is no dispute with regard to the title of the decree holder. Further, the respondent herein admitted the tenancy by invoking Section 9 before the trial court cannot take a different stand stating that the above said Kolavizhi Amman Temple is the owner of the property. Therefore, the revision petitioner prayed for to dismiss the above said petition in M.P.No.81 of 2004 filed by the respondent.
7. The executing court allowed the above said M.P.No.81 of 2004 and consequently dismissed the execution petition in E.P.No.199 of 2003 filed by the revision petitioner. Aggrieved over the above said orders of the executing court, these two CRPs have been filed by the revision petitioner/landlord.
8. A perusal of the records revealed that the ejectment suit No.75 of 1990 was filed by the revision petitioner/landlord against the respondent herein/tenant for eviction. In the above said suit, the respondent as a tenant also filed a petition in M.P.No.2 of 1991 under Section 9 of Madras City Tenants Protection Act, directing the revision petitioner to sell the suit property to the respondent for a price to be fixed by the trial court. Subsequently, the respondent remained exparte in the above said both proceedings and therefore, the suit filed by the revision petitioner was decreed and the above said miscellaneous petition filed by the respondent herein was dismissed. On the basis of the above said decree, the revision petitioner filed execution petition in E.P.No.199 of 2003. During the pendency of the execution proceedings, the respondent herein filed another M.P.No.4 of 2004 under Order 21 Rule 2 of the Provisions of Small Causes Court Act, to stay all further proceedings in the above said E.P.No.199 of 2003 in ejectment suit No.75 of 1990 pending disposal of the another suit O.S.No.2769 of 1999. But, the above said petition was dismissed on 27.01.2004. After dismissal of the above said M.P.No.4 of 2004, the respondent herein filed the present petition in M.P.No.81 of 2004 on 24.02.2004.
9. The main contention of the respondent herein before the executing court is that the respondent received communication from Tahsildar, Mylapore dated 07.04.1999 and from the said document, the respondent came to know that the suit land does not belongs to the revision petitioner, but, it belongs to Alulmigu Kolavizhi Amman Temple and therefore, the respondent herein filed a suit in O.S.No.2769 of 1999 against the revision petitioner and the above said temple as an interpleader suit to decide the question of title over the suit land and during the pendency of the suit, this miscellaneous petition M.P.No.81 of 2004 was filed to dismiss the execution proceedings. The learned counsel appearing for the respondent further submitted that the revision petitioner has filed the ejectment suit on the basis of scheme decree passed in C.S.No.221 of 1951 but, the present suit property is not included in the scheme decree and the revision petitioner do not have any right, title or interest over the suit property and the decree obtained by the revision petitioner has become nullity and therefore, prayed for to dismiss the execution proceedings on that ground also.
10. The learned counsel appearing for the revision petitioner submitted that the revision petitioner has filed ejectment suit against the respondent herein and in the above said proceedings, the respondent herein appeared and filed written statement and also filed petition in M.P.No.2 of 1991 under Section 9 of Madras City Tenants Protection Act, to sell the suit property to the respondent claimed as tenant, but, subsequently, the respondent herein not appeared before the trial court and hence, the main suit was decreed as prayed for and eviction was ordered and the petition in M.P.No.2 of 1991 filed by the respondent was also dismissed and therefore, the respondent not entitled any relief in the present petition filed by the respondent (i.e.,) M.P.No.81 of 2004.
11. A perusal of the above said facts revealed that the respondent herein clearly admitted the revision petitioner as landlord and the respondent is tenant under the revision petitioner. In the above said circumstances, as rightly pointed out by the learned counsel appearing for the revision petitioner, the respondent is not entitled to question the title of the revision petitioner.
12. Further, the respondent herein filed separate suit in O.S.No.2769 of 1999 impleading the revision petitioner herein and also the alleged owner, namely Arulmigu Kolavizhi Amman Temple as defendants. Now, both parties admitted that the above said suit was dismissed on 10.07.2008. Further, in the above said suit, the alleged land owner of the property namely Arulmigu Kolavizhi Amman Temple was not appeared in the above said suit and remained exparte. The respondent has not filed any documents to prove that the above said temple filed any other suit and obtained decree in respect of the suit property. From the above said facts revealed that the alleged owner namely Arulmigu Kolavizhi Amman Temple has not claimed any right over the suit property, but only the respondent, who is tenant under the revision petitioner alone filed the petition as if the temple is the owner of the property. Therefore, the respondent herein is not entitled to question the title of the revision petitioner, as rightly pointed out by the learned counsel for the revision petitioner.
13. A perusal of the order passed by the executing court in M.P.No.81 of 2004 revealed that the executing court has allowed the claim petition mainly on the ground that some discrepancies in the resurvey number of the suit land. The executing court has held that only by furnishing the correct resurvey number of the suit land, the decree can be executed and hence, it is not possible to execute the decree and therefore, the executing court directed the revision petitioner to take proper action in this regard and on the above said finding, the petition filed by the revision petitioner in M.P.No.81 of 2004 under Section 47 CPC was allowed and the main execution petition in E.P.No.199 of 2003 was dismissed. As rightly pointed out by the learned counsel appearing for the revision petitioner, the executing court has not at all considered the ejectment suit filed by the revision petitioner. In the above said main suit the respondent appeared and also filed written statement, in which, it is not stated any discrepancies in the description of the suit property. Further, the respondent herein has not taking any steps to prove the alleged discrepancies by way of appointment of Commissioner to measure the property on the basis of revenue records etc., The revenue officials also not examined to prove the same. In the above said circumstances, the executing court has wrongly allowed the claim petition, only on the basis of mere averments in the petition, as if some discrepancies in the description of the property.
14. The learned counsel appearing for the revision petitioner submitted that the respondent herein admitted the landlord and tenant relationship, in such circumstances, the respondent is not entitled to deny the title of the revision petitioner. To substantiate the above said contention, the learned counsel appearing for the revision petitioner relied on several decisions. The first decision of the Hon'ble Supreme Court reported in (1987) 4 SCC 424 (D.Satyanarayana v. P.Jagadish), in which, para 6 reads as under:-
''6. The High Court failed to appreciate that there could be no order of termination in terms of Section 10(2)(i)[sic(vi)] unless it could be said that in the facts and circumstances of the case the dispute as to title was not bona fide. It cannot be said having regard to the facts that the appellant was under threat of eviction by the title paramount, that the rule of estoppel under Section 116 of the Evidence Act applied and therefore he was not entitled to dispute the title of the respondent.''
ii) 1998 (3) SCC 137 ( Tej Bhan Madan v. II Additional District Judge and others), in which, para 9 as follows:-
''9. The law as to the estoppel of a tenant under Section 116 of the Eviction Act is a recognition, and statutory assimilation of the equitable principles underlying estoppel in relation to tenants. The section is not exhaustive of the law of estoppel. The section, inter-alia, predicates that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property.''
iii) 2004 (3) CTC 489 (A.Koman v. T.S.Balasubramaniyan), in which, para 17 reads as under:-
''17. Needless to say that the rule of estoppel enshrined under Section 116 of the Evidence Act is that a tenant, who has been put in possession, cannot deny the landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to the landlord.
iv) 2012 (11) SCC 405 (Payal Vision Limited v. Radhika Choudhary), in which para 17 of the decision reads as under:-
''17. ......... The legal position in this regard is settled by several decisions of this Court and the Privy Council. Reference may in this regard be made to Mangat Ram v. Sardar Mehartan Singh (1987) 4 SCC 319 and Anar Devi (Smt.) v. Nathu Ram (1994) 4 SSC 251. In the later case this Court observed:
''13. This Court in Sri Ram Pasricha v. Jagannath, has also ruled that in a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd.,when had occasion to examine the contention based on the words at the beginning of the tenancy in Section 116 of the Evidence Act, pronounced that they do not give a ground for a person already in possession of land becoming tenant of another, to contend that there is no estoppel against his denying his subsequent lessor's title. Ever since, the accepted position is that Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground.''
15. The learned counsel appearing for the revision petitioner further submitted that the revision petitioner has filed eviction suit as against the respondent and the respondent appeared through counsel in the above said suit and also filed petition in M.P.No.2 of 1991 under Section 9 of Madras City Tenants Protection Act, to sell the suit property to the respondent. Subsequently, the respondent herein not appeared and therefore, decreed the suit and ordered to evict the respondent as prayed for and dismissed the petition filed by the respondent. Further, the respondent has filed another M.P.No.4 of 2004 under Section 47 to stay the execution proceedings, since the other suit was pending. The above said petition was dismissed. Further, the other suit was also disposed of, but, not preferred any revision or appeal. The learned counsel further pointed out that in the above said circumstances, the claim of the respondent is barred by res-judicata. To substantiate the above said contention, the learned counsel appearing for the revision petitioner relied on a decision of Hon'ble Supreme Court reported in (2010) 9 SCC 560 (Mohd. Nooman and others v. Mohd. Jabed Alam and others), in which, para 25 reads as under:-
''25. We have carefully examined the pleadings of the parties in the two suits and the evidence led by them in support of their respective claims regarding title in the two suits. And, we are satisfied that the issue of title was expressly raised by the parties in the earlier eviction suit and it was expressly decided by the eviction court. The question of title was directly and substantially in issue between the parties in the earlier suit for eviction. Hence, the High Court was right in holding that the finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties.'' The learned counsel appearing for the revision petitioner relied on another decision of this Court reported in 2010 (5) MLJ 382 (Ramachandran v. Sankaraiah Naidu) and submitted that the executing court cannot go beyond the tenor of the decree. In the above said decision in para 13 reads as under:-
''13. It is to be borne in mind that the Executing Court has duly bound to give effect to the decree in its substance and ought not to pass any order rendering the judgment as a futile one. In contruing the Decree, a Court of Law should lean towards construction rendering the Decree executable. As a matter of fact, an Executing Court cannot go beyond the tenor of the Decree. Normally, an Executing Court must not interfere with the Decree and executed the Decree as it stands, in the considered opinion of this Court.''
16. Further, the learned counsel appearing for the revision petitioner submitted that all the contentions of the respondent raised in the present petition filed under Section 47, were already raised before the trial court in M.P.No.4 of 2004 and therefore, the respondent is not entitled to raise the same question again under Section 47 before the Executing Court. In this regard, the learned counsel relied on two decisions. The first decision reported in 2011(2) LW 113(Rajamanickam v. Balasubramanian, 2.Selvamani), in which, para 14 reads as under:-
''14. As noticed in the earlier part of this order, the questions raised under Section 47 application were raised by the first respondent in the earlier proceedings and the orders passed thereon having become final, the first respondent cannot permit to raise the same once over again.'' The second decision reported in 2011 (2) LW 97(Mrs.K.Lakshmi v.1S.K.Sridhar & Others), in which para 23 reads as under:-
''23. Further, in the judgment reported in B.N.Kawale v. D.B.Patil (AIR 1997 SC 122) (referred in the decision reported in 1998-1-LW-498 at page 504 cited supra) the Honourable Supreme Court has held that when the civil court decreed the suit for eviction holding that the person was not a tenant and that order has become final, it is not open to the person in possession to contend that he is still a tenant under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and therefore, the decree is a nullity. In the same decision, the judgment reported in AIR 1992 Madras 111, the scope of section 47 of the Code of Civil Procedure was discussed and it has been laid down that where a section refers to all questions, it means only all questions which were not raised in the suit and decided by the Trial Court. If a question was raised before Trial Court at the stage of trial and decided by the Trial court, it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the Trial Court at the stage of trial and if he omits to raise it, even then he cannot raise it under section 47 before the Executing Court.''
17. In the instant case as already discussed, the revision petitioner filed eviction suit against the respondent and in the above said suit, the respondent admitted the relationship of landlord and tenant and also filed petition under Section 9 of Madras City Tenants Protection Act, to sell the land to the respondent. But, subsequently, the respondent not contested the suit, therefore, the suit filed by the revision petitioner for eviction was decreed and the petition filed under Section 9 by the respondent was dismissed. Further, the respondent has filed another suit impleading the revision petitioner and another alleged owner of the property namely the above said Temple. The above said suit was also dismissed. The respondent has filed M.P.No.4 of 2004 to stay the proceedings under Section 47 CPC on the same grounds as alleged in this petition till the disposal of the separate suit O.S.No.2769 of 1999. The above said petition was also dismissed. Therefore, as rightly pointed out by the learned counsel appearing for the revision petitioner, the executing court has wrongly allowed the petition filed by the respondent, mainly on the ground that as if there is a discrepancy in the resurvey number of the suit land and therefore, directed the revision petitioner to take proper action in this regard and also on the ground that the suit filed by the respondent herein was pending. Now, as already stated, the above said suit filed by the respondent was disposed of. Further, the respondent has not proved the above said alleged discrepancies in the properties by reliable evidence except, the averments made in the petition. As rightly pointed out by the learned counsel appearing for the revision petitioner, the respondent is not entitled any compensation for superstructure also. Therefore, the order passed by the executing court allowing the M.P.No.81 of 2004 is to be set aside and it is to be dismissed and the relief is to be granted as prayed for in the E.P.No.199 of 2003 filed by the revision petitioner.
18. In the result, both revision petitions are allowed and the order passed by the Executing Court in M.P.No.81 of 2004 is set aside and the above said miscellaneous petition is dismissed and in the E.P.No.199 of 2003, the respondent herein is directed to deliver the possession after removing the super structure within three months to the revision petitioner as prayed for. No order as to costs.
03.06.2014 Index:Yes/No Internet:Yes / No ssn To The Registrar, Small Causes Court, Chennai.
R.KARUPPIAH, J., ssn Common order in C.R.P.(NPD).Nos.797 and 798 of 2006 03.06.2014