IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/11/2002
CORAM
THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN
S.A.No.1842 of 2002
and
C.M.P.No.15577 of 2002
1. Thulasiammal
2.Dr.S.Vijayakumar
3.S.Vijayalakshmi
4.S.Mohanakumar
5.S.Udyakumar
6.S.Sundaramoorthy
7.S.Saraswathi
8.S.Paranthaman ..... Appellants.
-Vs-
1. Kalyani
2. P.L.S.Ramalakshmi
3. Sakthivasan
4. S.Shanmugahvadivu
5. S.Venkatesan
6. Santhanom
..... Respondents.
Second Appeal filed against the judgment and decree dated
27.3.2002 in A.S.No.81 of 2001 ont he file of Prl.District Court,
Chengalpattu, filed against the judgment and decree dated 30.4.2001 in
O.S.No.31 0 of 1988 on the file of Sub Court, Poonamallee.
!For appellants :: Mr.M.Venkateswaran
^For Respondents :: ----
:JUDGMENT
The defendants 3 to 10, who lost in the trial Court as well as
the first appellate Court are the appellants herein. The respondents are the
plaintiffs who are the legal representatives of P.L.Shanmugam who originally
filed the suit, O.S.No.310 of 1988. The suit was filed by P.L.Shanmugam who
died during the pendency of the suit against one Soundarapandian who also died
during the pendency of the suit and his legal representatives were impleaded
as defendants 3 to 10, who are the appellants herein. The suit in O.S.No.310
of 1988 was filed for declaration and for delivery of vacant possession of the
suit property and for mesne profits, both past and future.
2. Another suit in O.S.No.291 of 1989 was filed for permanent
injunction by Soundarapandian who died during the pendency of the suit. It is
necessary to notice the facts of the suit in O.S.No.310 of 1988 for the
disposal of the appeal, as the appeal is filed only against the judgment and
decree rendered in the appeal in A.S.No.81 of 2001 filed against the judgment
and decree rendered in O.S.No.310 of 1988.
3. According to the plaint, the first plaintiff,
P.L.Shanmugam was the absolute owner of the suit property and he purchased the
property by a registered sale deed dated 15.9.1974 from one Rajeswari ammal.
It is stated that the first plaintiff was declared as a bona fide purchaser of
the suit property in A.S.No.40 of 1981 and A.S.No.82 of 1 981, by common
judgment dated 9.12.1981. It is stated that the first defendant was in
possession of the land as tenant under the previous landlord, Rajeswari ammal
and did not attorn the tenancy in favour of the first plaintiff. The first
defendant Soundarapandian filed the suit in O.S.No.138 of 1978 on the file of
the Additional Subordinate Judge, Chengalpattu for specific performance. The
trial Court dismissed the suit for specific performance, but granted a decree
for compensation for the value of the superstructure put up by the first
plaintiff. The first defendant herein preferred an appeal as against the
decree for rejection of the relief of specific performance by the trial court
and the said appeal was dismissed on 9.12.1981. Thereafter the first
defendant preferred a second appeal in S.A.No.1847 of 19 84 before this Court
and this Court also dismissed the second appeal, by judgment dated 8.12.1987,
wherein Mr.M.Srinivasan,J. (as His Lordship then was) held that the first
defendant herein has not established the oral agreement. As regards
compensation, the learned Judge held that the question whether the first
defendant would be entitled to compensation for the value of the
superstructure under the provisions of the Tamil Nadu City Tenant’s Protection
Act has not been gone into in the said proceedings and that is a matter to be
decided in a proceeding which may be initiated by the first plaintiff herein.
It was also held that the only remedy that is available to the first defendant
is to remove the superstructure put up by him and he is not entitled to claim
title as a tenant in respect of the superstructure.
4. A notice dated 9.2.1982(Ex.A-2) was issued by the first
plaintiff through his counsel stating that the first defendant did not attorn
tenancy in favour of the first plaintiff from the date of his purchase and the
first defendant also failed to pay the rent in spite of several demands made.
It is also stated that the first defendant had gone to the extent of denying
the title of the first plaintiff in the suit property. It is stated that the
first defendant is liable to pay the entire arrears of rent and he has
committed wilful default in payment of rent. It is also stated that the
property is required for the personal use of the first plaintiff to carry on
business. The notice was therefore issued calling upon the first defendant to
quit and deliver vacant possession of the property and also to pay the entire
arrears of rent.
5. The first defendant, in his reply dated 15.2.1982
(Ex.A-3), has denied the title of the first plaintiff. It is stated that the
property does not belong to the first plaintiff and the first defendant is the
absolute owner of the site as well as the superstructure. It is also stated
that the sale by Rajeswari ammal in favour of the first plaintiff is void and
not binding on the first defendant. It is also stated that the deed was a
sham document and the first plaintiff has no means to purchase the property.
In that reply notice, the first defendant has referred to the earlier
proceedings in O.S.No.138 of 1 978 initiated by him for specific performance
and stated that as against the judgment of the first appellate Court, he has
taken steps to prefer second appeal before this Court. It is relevant to
notice that the first defendant filed a second appeal in S.A.No.1847 of 1984
which came to be decided on 8.12.1987.
6. It is also relevant to mention here that in spite of
directions of this Court, learned counsel for the appellants has not produced
the entire document in Ex.A-3, but he has only produced pages 1 and 2 of the
said document, Ex.A-3. The first plaintiff therefore came forward with the
suit that there is no tenancy agreement either express or implied between the
first plaintiff and the first defendant and the first defendant is not the
tenant and he has to deliver possession of the property and he has not paid
the rent also and there is no legal relationship of landlord and tenant
between the first plaintiff and the first defendant which was admitted by the
first defendant in his reply notice dated 28.4.1982 (probably the correct date
of the reply notice is 15.2.1982) and also in the notice dated 27.4.1987
wherein the first defendant has stated that there is no privity of contract
between the first plaintiff and the first defendant and there is no question
to be decided.
7. The first defendant died during the pendency of the suit
and his legal heirs were added and the first plaintiff also died during the
pendency of the suit and his legal heirs were added.
8. The first defendant filed a written statement. The first
defendant referred to the rent control proceedings in R.C.O.P.No.26 of 1983
wherein it was found that there was no tenancy of the building which was
constructed. It is stated that the rent control petition was dismissed on
12.11.1984, and the first defendant as lessee of the vacant site has put up
superstructure and therefore, he is entitled to the benefit of the Tamil Nadu
City Tenants Protection Act. It is also stated that the suit is not
maintainable. It is stated that the first plaintiff is not the owner of the
house and the house belongs to the first defendant. It is stated that the
first defendant is in lawful possession and he is not a trespasser. It is
also stated that the suit is barred by limitation and the suit is not
maintainable for want of notice under section 11 of the Tamil Nadu City
Tenants Protection Act.
9. The second defendant also filed a written statement.
Other defendants filed a written statement stating that they are adopting the
written statement filed by the first defendant. Necessary issues were framed.
The suit was decreed which was confirmed by the first appellate Court.
10. Learned counsel for the appellants raised two points.
The first point is that the first defendant, who was a tenant, was holding the
suit land and on his death, the appellants herein are entitled to the benefits
of the Tamil Nadu City Tenants Protection Act. His second point is that the
suit is barred by limitation.
11. As far as the first point is concerned, the submission of
the learned counsel is that the first defendant Soundarapandian was admittedly
a tenant of the site in question and in the absence of notice under section 11
of the Tamil Nadu City Tenants Protection Act, the suit is not maintainable.
Learned counsel also submitted that prior notice under section 106 of the
Transfer of Property Act was also not given and therefore the suit is not
maintainable. As far as the question regarding notice under section 11 of the
Tamil Nadu Cultivating Tenants Protection Act is concerned, the appellants
during the pendency of the suit filed a petition under section 9 of the Tamil
Nadu City Tenants Protection Act claiming that they are entitled to the
benefit of the Tamil Nadu City Tenants Protection Act and the said petition
was dismissed and an appeal in C.M.A.No.3 of 1999 was preferred and the appeal
was also dismissed and against the judgment and decree in C.M.A.No.3 of 1999,
the appellants preferred a revision before this Court. This Court considered
the matter and found that the appellants have set up their own title and
denied the title of the landlord and also denied that they are tenants at all.
It was also found that there is absolutely no evidence to show that the
appellants have accepted the tenancy. This Court held as under:-
” To make a claim under section 9 of the Act, the person must
be a tenant within the meaning of section 2(4) of the Act. A tenant in
relation to any land means a person liable to pay rent in respect of such
land, under a tenancy agreement, express or implied. This will include any
such person, referred to earlier, who continues in possession of the land
after the determination of the tenancy agreement. But, the point is whether
there is any tenancy agreement, express or implied, and whether the
petitioners are liable to pay rent in respect of such land to the respondents?
In this case, neither Soundarapandian, nor his legal representatives, the
petitioners herein, at any point of time conceded that there is tenancy
agreement between the petitioners and the respondents, either express or
implied. On the contrary, from the pleadings it could be seen that the
petitioners have put up a specific stand of title of their own and denied the
title of the respondents in categorical terms. Therefore there is absolutely
no evidence to show that the petitioners have accepted the tenancy, either
express or implied, with the respondents. The exchange of notices, pleadings
and the findings, all consistently and clearly establish that the petitioners
have set up their own title on the basis of an oral agreement of sale from
Rajeswari ammal and have denied the title of the respondents on that basis and
let out the property to third parties. It is in evidence and not in dispute
that they have not paid any rent to the respondents. The non-issue of notice
under section 11 of the Act does not arise in this case and the petitioners
are not entitled to claim benefit under the Act and from the eviction.”
The above decision rendered in the appellants’ own case and reported in
2001-3-L.W.693 (Thulasimaniammal & Others v. Kalyani & others) has become
final.
12. The Supreme Court in the case of PALANI AMMAL v.
VISWANATHA CHETTIAR DEAD) AND OTHRS (1998) 2 L.W.7) and this Court in ESTATE
OF M. VENKATESA SARMA, ETC. v. A.N.RAJALAKSHMI AND 9 OTHERS (1998-3-
L.W.369 ) have held that the notice under section 11 of the Tamil Nadu City
Tenants Protection Act is mandatory only if the existence of landlord-tenancy
relationship is established and a person not a tenant on his own showing,
cannot claim rights under sections 106, 111 and 116 of the Transfer of
Property Act.
13. This Court in appellants’ own case in 2001-3-L.W.693 (
Thulasimaniammal and others v. Kalyani & others) held that the tenant denying
title of the landlord is not entitled to the benefit of the Tamil Nadu City
Tenants Protection Act and the question of issue of notice under section 11 of
the said Act does not arise. I hold that in the light of the decision of this
Court rendered in the appellants’ own case, reported in 2001-3-L.W.693, the
appellants are not entitled to claim that prior notice under section 11 of the
City Tenants Protection Act is mandatory and once this Court has held that
there is no landlord-tenant relationship between the respondents and the
appellants, notice under section 106 of the Transfer of Property Act is also
not necessary. The appellants by their own conduct, have forfeited the rights
conferred on them as tenants under the Tamil Nadu City Tenants Protection Act
as well as under the Transfer of Property Act.
14. Further, learned counsel for the appellants submitted
that the decision rendered in the appellants’ own case, reported in 2001-3-L.
W.693 would not operate as res judicata as it was rendered at interlocutory
stage. I am unable to accept the said submission. In ARJUN SINGH v.
MOHINDRA KUMAR (A.I.R. 1964 S.C.993), the Supreme Court has laid down the law
as under:-
” If the court which rendered the first decision was competent
to entertain the suit or other proceeding, and had therefore competency to
decide the issue or matter, the circumstance that it is a tribunal of
exclusive jurisdiction or one from whose decision no appeal lay would not by
themselves negative the finding on the issue by it being res judicata in later
proceedings Where the principle of res judicata is invoked in the case of the
different stages of proceedings in the same suit, the nature of the
proceedings, the scope of the enquiry which the adjectival law provides for
the decision being reached, as well as the specific provisions made on matters
touching such decision are some of the material and relevant factors to be
considered before the principle is held applicable.”
Applying the principles laid down by the Supreme Court, the decision rendered
by this Court in 2001-3-L.W.693 cannot be regarded as an interlocutory order
as the merits of the controversy have been decided and the rights of the
parties have been decided in the earlier proceedings in the same suit.
Further, the decision was arrived at by the Court which is competent to
entertain and decide the issue. Hence, I reject the submission of the learned
counsel for the appellants that the earlier judgment would not operate as res
judicata. I am of the view that even if it does not operate as res judicata,
the earlier decision of this Court in the appellants’ own case, reported in
2001-3 -L.W. 693 is binding on the appellants and following the said
decision, I hold that the appellants are not entitled to the benefit under the
Tamil Nadu City Tenants Protection Act as well as the Transfer of Property
Act.
15. The next point that arises is whether the suit is barred
by limitation. The suit was filed on 2.9.1988. According to the learned
counsel for the appellants, the first plaintiff has purchased the property on
15.9.1974. He referred to Ex.A-2 and a reading of Ex.A-2 clearly shows that
the first defendant refused to attorn tenancy in favour of the first
plaintiff. In Ex.A-2 it is also stated that the first defendant had gone to
the extent of denying the title of the landlord. It is therefore submitted by
the learned counsel for the appellants that the time limit to determine the
period of limitation has to be considered from the date of purchase of the
property and since the suit was filed after a period of 13 years, 11 months
and 17 days from the date of purchase, the suit is barred by limitation.
16. I am unable to accept the submission of the learned
counsel for the appellants. In Ex.A-3 which was sent as a reply to the notice
Ex.A-2, the first defendant denied the title of the landlord. Ex.A-3 is dated
15.2.1982 and the suit was filed on 2.9.1988. As far as notice (Ex.A-2) is
concerned, the notice merely called upon the first defendant to pay the entire
arrears of rent and also to deliver vacant possession of the property. Even
before the issue of Ex.A-2 notice, the suit for specific performance filed by
the first defendant was dismissed. In the notice issued to the first
defendant in Ex.A-2 it is not stated anywhere that the first defendant was
denying the title of landlord even from the date of purchase by the first
plaintiff, but it is stated that the tenant had gone to the extent of denying
the title of the landlord. In that notice, it is not stated that from which
date, the first defendant has denied title of the first plaintiff. There is
no evidence from the side of the appellants that the first defendant had
denied the title of the landlord even from the date of purchase. In the
absence of any such evidence, both the Courts relied upon Ex.A-3 as the
starting point for the computation of limitation period, and found that the
suit filed by the first plaintiff is within the time. Learned counsel for the
appellants referred to Article 67 of the Limitation Act and submitted that
Article 67 would only apply and not Article 65. However, since it is a suit
for declaration and delivery of possession and since the possession of the
first defendant has become adverse to the first plaintiff, I am of the view
that Article 65 of the Limitation Act would apply and therefore the 12 year
period has to be computed from the date of Ex.A-3 notice issued by the first
defendant. I therefore hold that both the Courts are correct in holding that
the suit filed is within the time.
17. I do not find any question of law, much less a
substantial question of law that arises out of the judgment and decree of the
first appellate Court. Consequently, the second appeal fails and the same is
dismissed, in limine, at the admission stage itself. Consequently,
C.M.P.No.15577 of 2002 is closed.
Index: Yes
Website: Yes
na.
8.11.2002
To
1. The Principal District Judge, Chelgalpattu.
2. The Subordinate Judge, Poonamallee.