N. Ramasamy, R. Shanmugham, V.R. ... vs State Of Tamil Nadu, Represented By Its ... on 9 August, 2002
26. It is the contention of the respondent/plaintiff that the
defendant unlawfully trespassed into the suit property/flat without any
valid right and causing hardship and sufferings to the plaintiff. But it is
the case of the appellant/defendant that he was a tenant under his sister
Sundari Chandran till she executed settlement deed dated 07.12.2011 in
his favour and from the date of settlement deed, he is the owner of the
suit property, hence, the respondent/plaintiff cannot sought for vacant
possession, permanent injunction and damages. If this contention of the
defendant that he is not a trespasser and is a tenant under Sundari
Chandran is true, he ought to have filed a suit for injunction seeking 'not
to evict him without due process of law'. But the defendant did not do
so, till now. Apart from that, even after the sale deed dated 22.07.2010 in
favour of the plaintiff or after filing of this suit in the year 2011, the said
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Sundari Chandran who alleged to have an ostensible owner of the suit
property, has not filed any suit against Mallika-plaintiff/respondent or
against the vendors of the plaintiff for injunction not to disturb/interfere
with her possession. That apart, since the sale deed in favour of Sundari
Chandran and subsequent settlement deed in favour of appellant/
defendant are mainly based on the alleged 'Agreement to Sell' dated
30.05.1979, they cannot be acted upon as the suit filed by Sundari
Chandran for specific performance on the basis of alleged 'Agreement to
Sell' dated 30.05.1979 was dismissed. Even if it is assumed to be an
Agreement to Sell, the same cannot be considered as Sale of Property, as
per the law laid down by this Court in (2005) 2 CTC 81 (K.Rangasamy
and another ..vs.. Tamil Nadu Housing Board), wherein it is held that
“Immovable property can be sold only by a registered sale deed and not
by a mere allotment order; Lease cum Sale Agreement is only a lease
agreement till final instalment is paid and lease cum sale agreement will
not amount to sale of property; Sale takes place only after payment of
final instalment and execution and registration of sale deed.” Hence, the
alleged 'Agreement to Sell' dated 30.05.1979 cannot be considered as a
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A.S.No.268 of 2016
sale and the said Sundari Chandran cannot be considered as a owner.
Therefore, this Court holds that the defendant is not a tenant under the
said Sundari Chandran at the time of filing the suit itself. Even now, the
defendant is not a tenant in the suit property, as the suit filed by his sister
for specific performance was dismissed for default as early as on
18.01.2017 and the restoration petition filed by her was also dismissed
on merit. Further, on 18.11.2019 the Civil Revision Petition filed to set
aside the exparte order was dismissed as withdrawn on 15.02.2021.
Hence, this Court is of the view that the appellant/defendant, who has no
right whatsoever in the suit property, is a trespasser into the suit property.