ORDER
Abdul Hadi, J.
1. The defendant is the petitioner in this civil revision petition against the reversing judgment dated 4.9.1992 in C.M.A. No. 29 of 1992 on the file of the 2nd Additional City Civil Court, Madras, by the respondent/plaintiff, whereby the lower appellate court has dismissed I.A. No. 12454 of 1981 filed by the petitioner herein in the. trial court in O.S. No. 4059 of 1979 for purchase Of the suit land under Section 9 of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as ‘the Act’).
2. The said suit O.S. No. 4059 of 1979 is by the respondent for ejectment of the petitioner from the suit land of an extent of 3,086 sq.ft., claiming that one 50′ x 141/2′ land is in the abovesaid 3,086 sq.ft., land was leased out to the petitioner under Ex. A-1 agreement dated 13.6.1975, but the petitioner had trespassed into the other remaining portion of the said suit property. In the said suit, the petitioner filed written statement, inter alia, claiming that the entire 3,086 sq.ft., was leased out along with the shed thereon and that the signature of the petitioner was obtained in Ex. A-1 only on misrepresentation or without letting her know about the contents of the said agreement.
3. Even though the abovesaid application has been disposed of, it is admitted by both the parties that the abovesaid suit is still pending. In fact, it is said that there was also another suit O.S. No. 1246 of 1979 in the same trial court, filed by the same plaintiff, for a mandatory injunction relating to the same suit property and that the said suit also is still pending. No doubt, it appears that initially both the said suits and the abovesaid application were tried together and common evidence was let in, but as found from the order of the trial court in the abovesaid I.A. No. 12454 of 1981, pursuant to the petition filed by the respondent/plaintiff herself, ultimately only the application was taken up for enquiry and not the other two suits and the evidence recorded was treated only as evidence in respect of the said application only.
4. Now, even though in the written statement, filed by the petitioner in the abovesaid O.S. No. 4059 of 1979, which was originally filed in 1979, the petitioner pleaded that the lease was land and shed thereon, in the affidavit in support of I.A No. 12454 of 1981, which was filed in 1981, the petitioner took a different stand pleading that the lease was only of the abovesaid suit land and that pursuant to the permission given by the landlord the super structure was put up by her. (No doubt, it appears that an amended written statement was filed, that too in 1979 itself, but that there too, in the amended portion though it is stated that the tenant was entitled to purchase the land, the original plea that the lease is of land and superstructure thereon, has not been in any way changed). Likewise, in the counter to the said application also, the respondent/plaintiff took a stand different from what was taken in the plaint, contending that the lease was for land and superstructure thereon. It must also be noted that prior to the filing of the suit, the plaintiff, in his suit notice Ex. B-2, dated 30.1.1979 and subsequent rejoinder Ex. B-4 dated, 12.2.1979 also maintained the plea that the lease was only of land. Likewise, prior to the suit, in Ex. B-3, dated 5.2.1979, the reply to the suit notice and the reply to the rejoinder Ex. A-137, dated 15.2.1979, both by the tenant, the plea was that the lease was of land and shed thereon.
5. However, the landlord claims that there was a lease agreement which came into being under Ex. A-1 dated 13.6.1975. The said Ex. A-1 has been signed only by the petitioner/tenant. According to the said Ex. A-1, the petitioner has taken the lease of land only, but not the entire suit land, but only 50′ x 14 1/2′. But the case of the petitioner with reference to Ex. A-1 is that though she signed Ex. A-1, she signed it without knowing the contents and the landlord, by misrepresentation, obtained Ex. A-1 from her stating that the lease mentioned in Ex. A-1 was for entire suit land of 3,086 sq.ft.,
6. At any rate, it appears that in view of the Amending Act 2 of 1980 to the Act, which came into force on 3.3.1980, providing for the application of the parent Act to tenancies which commenced prior to the said date, the abovesaid shiftingstands were adopted by either of the parties, as stated above.
7. In the above context, though the application was allowed by the trial court on the footing that the lease was for the land only, the lower appellate court reversed the said decision and held that the lease was really of land and shed thereon even as per the original written statement of the petitioner and that hence it held that the said application itself was not maintainable.
8. Now, in the light of the arguments of both the learned Counsel, the only question before me is whether the abovesaid lease is of land only or of land and superstructure thereon. While the main argument of the learned Counsel for the petitioner/defendant is that consistently upto the filing of the plaint, the plaintiffs case was only that the lease was only of land and that hence there can be no objection for the maintainability of the abovesaid application. Further he also points out that the plaintiff-landlady, as P.W. 1, also admitted in the witness box that the lease was only that of land.
9. On the other hand, the learned Counsel for the respondent-plaintiff submits that the plea of the defendant in the written statement and earlier was only that the lease was that of land and shed thereon and that she cannot go back from the said plea and seek to get a relief, not based on the original plea set up by her. In this connection, the learned Counsel relies on decision like Govindaraj v. Kandaswami Gounder , Subramania Mudaliar v. Ammapet Co-operative Society, , P. Saraswathi v. Lakshmi and Madhavan v. Kannammal (1990) 2 L.W. 274 to contend that a party cannot abandon his own case and claim relief on the basis of the other party’s case.
10. I have considered the rival submissions. It is no doubt true that the above referred to decisions cited by the learned Counsel for the respondent reiterate the principle that a party cannot abandon his own case and Claim relief only on the basis of the other party’s case. But, it must be noted that even in the last of the abovesaid decisions, viz., Madhavanv. Kannammal (1990) 2 L.W. 274, it is pointed out that the principle that one party can-, not abandon his own case and claim relief on the basis of the other party’s plea, is not applicable where one party does not seek relief on the basis of the plea of the other party, but only on the facts established on record, though they arc at variance with his own pleading. In the present case also, as I have already pointed out, despite (he above referred to shifting stand by either of the parties, the plaintiff landlady herself has deposed in her chief-examination as follows:
In view of this admission in evidence by the plaintiff-landlady herself, even as per the abovesaid ruling in Madhavan v. Kannammal (1990) 2 L.W. 274, there is no bar for granting relief based on the said evidence (and not the pleading) of the other party, viz., the plaintiff, even though the said evidence is at variance with the defendant’s original plea in the written statement. Further since the abovesaid evidence given by the landlady is actually an admission by her regarding the nature of the lease, there can be no bar for entertaining the abovesaid application by the defendant for purchasing the demised property pursuant to Section 9of the Act. So, the lower appellate court has erred in having held that the abovesaid application itself is not maintainable, without taking note of the legal position enunciated in the abovesaid Madhavan v. Kannammal (1990) 2 L.W. 274 and also the law that a party could be given relief based on the categorical admission of the other party in the witness box. vide : also Narayan v. Gopal . Since the lower appellate court has thus exercised its jurisdiction illegally or with material irregularity, the impugned order is liable to be set aside and C.M.A. No. 29 of 1992 has to be remanded back to the lower appellate court for fresh disposal. In the light of the aforesaid admission by the respondent-plaintiff there is no necessity to deal with the various tax receipts, exhibited by the petitioner/defendant. They have also come into being only after the suit.
11. The lower appellate court shall decide the abovesaid C.M.A. No. 29 of 1992 afresh on the footing that the abovesaid I.A. No. 12454 of 1981 is maintainable. It is for the lower appellate court now to see whether the relief could be granted in the said application under Section 9 of the Act on its merits, and if so, to what extent. In other words, as already indicated, according to the defendant, the lease was with reference to the entire suit land of 3,086 sq.ft., and not simply 50′ x 14 1/2′ therein as contended by the plaintiff and also as mentioned in Ex. A-1. In view of the rival pleadings of either parties regarding Ex. A-1 the lower appellate court will consider the abovesaid application on merits and decide whether the lease is for the entire suit land of 3,086 sq.ft., or only for 50′ x 141/2′ therein. After the lower appellate court comes to a decision as to the extent of the lease, no doubt it should decide whether the petitioner is entitled to the rights under Section 9 of the Act, taking into consideration the abovesaid amending Act 2 of 1980. Then, if it comes to the decision that the petitioner is entitled to the benefits under Section 9 of the Act then as per Section 9 itself, it should also decide the minimum extent required for the petitioner’s convenient enjoyment and proceed to deal with the said application further pursuant to the said section.
12. In the result, the civil revision petition is allowed, the judgment and decree of the lower appellate court are set aside and C.M.A. No. 29 of 1992 is remanded back to the lower appellate court for fresh disposal according to law in the light of the observations in paragraph 11 supra. No costs.