{"id":124877,"date":"2002-11-08T00:00:00","date_gmt":"2002-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thulasiammal-vs-kalyani-on-8-november-2002"},"modified":"2015-11-27T11:12:54","modified_gmt":"2015-11-27T05:42:54","slug":"thulasiammal-vs-kalyani-on-8-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thulasiammal-vs-kalyani-on-8-november-2002","title":{"rendered":"Thulasiammal vs Kalyani on 8 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Thulasiammal vs Kalyani on 8 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 08\/11\/2002\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN\n\nS.A.No.1842 of 2002\nand\nC.M.P.No.15577 of 2002\n\n1. Thulasiammal\n2.Dr.S.Vijayakumar\n3.S.Vijayalakshmi\n4.S.Mohanakumar\n5.S.Udyakumar\n6.S.Sundaramoorthy\n7.S.Saraswathi\n8.S.Paranthaman                 .....     Appellants.\n\n-Vs-\n\n1. Kalyani\n2. P.L.S.Ramalakshmi\n3. Sakthivasan\n4. S.Shanmugahvadivu\n5. S.Venkatesan\n6. Santhanom\n                                .....     Respondents.\n\n                Second Appeal filed against  the  judgment  and  decree  dated\n27.3.2002   in   A.S.No.81   of  2001  ont  he  file  of  Prl.District  Court,\nChengalpattu, filed  against  the  judgment  and  decree  dated  30.4.2001  in\nO.S.No.31 0 of 1988 on the file of Sub Court, Poonamallee.\n\n!For appellants ::  Mr.M.Venkateswaran\n\n^For Respondents ::   ----\n\n:JUDGMENT\n<\/pre>\n
                The defendants 3 to 10, who lost in the trial Court as well as
\nthe first  appellate Court are the appellants herein.  The respondents are the
\nplaintiffs who are the legal representatives of P.L.Shanmugam  who  originally
\nfiled the  suit,  O.S.No.310 of 1988.  The suit was filed by P.L.Shanmugam who
\ndied during the pendency of the suit against one Soundarapandian who also died
\nduring the pendency of the suit and his legal representatives  were  impleaded
\nas defendants  3 to 10, who are the appellants herein.  The suit in O.S.No.310
\nof 1988 was filed for declaration and for delivery of vacant possession of the
\nsuit property and for mesne profits, both past and future.\n<\/p>\n
                2.  Another suit in O.S.No.291 of 1989 was filed for permanent
\ninjunction by Soundarapandian who died during the pendency of the suit.  It is
\nnecessary to notice the facts of the  suit  in  O.S.No.310  of  1988  for  the
\ndisposal  of  the appeal, as the appeal is filed only against the judgment and
\ndecree rendered in the appeal in A.S.No.81 of 2001 filed against the  judgment
\nand decree rendered in O.S.No.310 of 1988.\n<\/p>\n
                3.    According   to   the   plaint,   the   first  plaintiff,
\nP.L.Shanmugam was the absolute owner of the suit property and he purchased the
\nproperty by a registered sale deed dated 15.9.1974 from one  Rajeswari  ammal.
\nIt is stated that the first plaintiff was declared as a bona fide purchaser of
\nthe  suit  property  in  A.S.No.40  of  1981 and A.S.No.82 of 1 981, by common
\njudgment dated 9.12.1981.  It is  stated  that  the  first  defendant  was  in
\npossession  of the land as tenant under the previous landlord, Rajeswari ammal
\nand did not attorn the tenancy in favour of the first plaintiff.    The  first
\ndefendant  Soundarapandian filed the suit in O.S.No.138 of 1978 on the file of
\nthe Additional Subordinate Judge, Chengalpattu for specific performance.   The
\ntrial  Court dismissed the suit for specific performance, but granted a decree
\nfor compensation for the value of the  superstructure  put  up  by  the  first
\nplaintiff.   The  first  defendant  herein  preferred an appeal as against the
\ndecree for rejection of the relief of specific performance by the trial  court
\nand the  said  appeal  was  dismissed  on  9.12.1981.    Thereafter  the first
\ndefendant preferred a second appeal in S.A.No.1847 of 19 84 before this  Court
\nand  this Court also dismissed the second appeal, by judgment dated 8.12.1987,
\nwherein Mr.M.Srinivasan,J.  (as His Lordship then was)  held  that  the  first
\ndefendant herein   has  not  established  the  oral  agreement.    As  regards
\ncompensation, the learned Judge held  that  the  question  whether  the  first
\ndefendant   would   be   entitled   to  compensation  for  the  value  of  the
\nsuperstructure under the provisions of the Tamil Nadu City Tenant’s Protection
\nAct has not been gone into in the said proceedings and that is a matter to  be
\ndecided  in a proceeding which may be initiated by the first plaintiff herein.
\nIt was also held that the only remedy that is available to the first defendant
\nis to remove the superstructure put up by him and he is not entitled to  claim
\ntitle as a tenant in respect of the superstructure.\n<\/p>\n
                4.   A  notice  dated 9.2.1982(Ex.A-2) was issued by the first
\nplaintiff through his counsel stating that the first defendant did not  attorn
\ntenancy in favour of the first plaintiff from the date of his purchase and the
\nfirst  defendant also failed to pay the rent in spite of several demands made.
\nIt is also stated that the first defendant had gone to the extent  of  denying
\nthe title  of the first plaintiff in the suit property.  It is stated that the
\nfirst defendant is liable to pay  the  entire  arrears  of  rent  and  he  has
\ncommitted wilful  default  in  payment  of  rent.   It is also stated that the
\nproperty is required for the personal use of the first plaintiff to  carry  on
\nbusiness.  The notice was therefore issued calling upon the first defendant to
\nquit  and deliver vacant possession of the property and also to pay the entire
\narrears of rent.\n<\/p>\n
                5.   The  first  defendant,  in  his  reply  dated   15.2.1982
\n(Ex.A-3), has  denied the title of the first plaintiff.  It is stated that the
\nproperty does not belong to the first plaintiff and the first defendant is the
\nabsolute owner of the site as well as the superstructure.  It is  also  stated
\nthat  the sale by Rajeswari ammal in favour of the first plaintiff is void and
\nnot binding on the first defendant.  It is also stated that  the  deed  was  a
\nsham  document  and the first plaintiff has no means to purchase the property.
\nIn that reply  notice,  the  first  defendant  has  referred  to  the  earlier
\nproceedings  in  O.S.No.138 of 1 978 initiated by him for specific performance
\nand stated that as against the judgment of the first appellate Court,  he  has
\ntaken steps  to  prefer  second  appeal  before this Court.  It is relevant to
\nnotice that the first defendant filed a second appeal in S.A.No.1847  of  1984
\nwhich came to be decided on 8.12.1987.\n<\/p>\n
                6.   It  is  also  relevant  to  mention here that in spite of
\ndirections of this Court, learned counsel for the appellants has not  produced
\nthe  entire  document in Ex.A-3, but he has only produced pages 1 and 2 of the
\nsaid document, Ex.A-3.  The first plaintiff therefore came  forward  with  the
\nsuit  that there is no tenancy agreement either express or implied between the
\nfirst plaintiff and the first defendant and the first  defendant  is  not  the
\ntenant  and  he  has to deliver possession of the property and he has not paid
\nthe rent also and there is  no  legal  relationship  of  landlord  and  tenant
\nbetween  the first plaintiff and the first defendant which was admitted by the
\nfirst defendant in his reply notice dated 28.4.1982 (probably the correct date
\nof the reply notice is 15.2.1982) and  also  in  the  notice  dated  27.4.1987
\nwherein  the  first  defendant has stated that there is no privity of contract
\nbetween the first plaintiff and the first defendant and there is  no  question
\nto be decided.\n<\/p>\n
                7.   The  first defendant died during the pendency of the suit
\nand his legal heirs were added and the first plaintiff also  died  during  the
\npendency of the suit and his legal heirs were added.\n<\/p>\n
                8.  The  first defendant filed a written statement.  The first
\ndefendant referred to the rent control proceedings in  R.C.O.P.No.26  of  1983
\nwherein  it  was  found  that  there  was no tenancy of the building which was
\nconstructed.  It is stated that the rent control  petition  was  dismissed  on
\n12.11.1984,  and  the  first defendant as lessee of the vacant site has put up
\nsuperstructure and therefore, he is entitled to the benefit of the Tamil  Nadu
\nCity Tenants  Protection  Act.    It  is  also  stated  that  the  suit is not
\nmaintainable.  It is stated that the first plaintiff is not the owner  of  the
\nhouse and  the  house  belongs  to the first defendant.  It is stated that the
\nfirst defendant is in lawful possession and he is not a  trespasser.    It  is
\nalso  stated  that  the  suit  is  barred  by  limitation  and the suit is not
\nmaintainable for want of notice under  section  11  of  the  Tamil  Nadu  City
\nTenants Protection Act.\n<\/p>\n
                9.   The  second  defendant  also  filed  a written statement.
\nOther defendants filed a written statement stating that they are adopting  the
\nwritten statement filed by the first defendant. Necessary  issues were framed.
\nThe suit was decreed which was confirmed by the first appellate Court.\n<\/p>\n
                10.  Learned counsel for the  appellants  raised  two  points.
\nThe first point is that the first defendant, who was a tenant, was holding the
\nsuit land and on his death, the appellants herein are entitled to the benefits
\nof the  Tamil  Nadu City Tenants Protection Act.  His second point is that the
\nsuit is barred by limitation.\n<\/p>\n
                11.  As far as the first point is concerned, the submission of
\nthe learned counsel is that the first defendant Soundarapandian was admittedly
\na tenant of the site in question and in the absence of notice under section 11
\nof the Tamil Nadu City Tenants Protection Act, the suit is  not  maintainable.
\nLearned  counsel  also  submitted  that  prior notice under section 106 of the
\nTransfer of Property Act was also not given and  therefore  the  suit  is  not
\nmaintainable.  As far as the question regarding notice under section 11 of the
\nTamil  Nadu  Cultivating  Tenants  Protection Act is concerned, the appellants
\nduring the pendency of the suit filed a petition under section 9 of the  Tamil
\nNadu  City  Tenants  Protection  Act  claiming  that  they are entitled to the
\nbenefit of the Tamil Nadu City Tenants Protection Act and  the  said  petition
\nwas dismissed and an appeal in C.M.A.No.3 of 1999 was preferred and the appeal
\nwas  also dismissed and against the judgment and decree in C.M.A.No.3 of 1999,
\nthe appellants preferred a revision before this Court.  This Court  considered
\nthe  matter  and  found  that  the  appellants have set up their own title and
\ndenied the title of the landlord and also denied that they are tenants at all.
\nIt was also found that there is  absolutely  no  evidence  to  show  that  the
\nappellants have accepted the tenancy.  This Court held as under:-\n<\/p>\n
                ”  To make a claim under section 9 of the Act, the person must
\nbe a tenant within the meaning of section 2(4)  of  the  Act.    A  tenant  in
\nrelation  to  any  land  means  a person liable to pay rent in respect of such
\nland, under a tenancy agreement, express or implied.  This  will  include  any
\nsuch  person,  referred  to  earlier,  who continues in possession of the land
\nafter the determination of the tenancy agreement.  But, the point  is  whether
\nthere   is  any  tenancy  agreement,  express  or  implied,  and  whether  the
\npetitioners are liable to pay rent in respect of such land to the respondents?
\nIn this case, neither Soundarapandian,  nor  his  legal  representatives,  the
\npetitioners  herein,  at  any  point  of  time  conceded that there is tenancy
\nagreement between the petitioners  and  the  respondents,  either  express  or
\nimplied.   On  the  contrary,  from  the  pleadings  it could be seen that the
\npetitioners have put up a specific stand of title of their own and denied  the
\ntitle of  the respondents in categorical terms.  Therefore there is absolutely
\nno evidence to show that the petitioners have  accepted  the  tenancy,  either
\nexpress or  implied, with the respondents.  The exchange of notices, pleadings
\nand the findings, all consistently and clearly establish that the  petitioners
\nhave  set  up  their  own title on the basis of an oral agreement of sale from
\nRajeswari ammal and have denied the title of the respondents on that basis and
\nlet out the property to third parties.  It is in evidence and not  in  dispute
\nthat they  have not paid any rent to the respondents.  The non-issue of notice
\nunder section 11 of the Act does not arise in this case  and  the  petitioners
\nare not entitled to claim benefit under the Act and from the eviction.”\n<\/p>\n
The  above  decision  rendered  in  the  appellants’  own case and reported in
\n2001-3-L.W.693 (Thulasimaniammal & Others v.  Kalyani  &  others)  has  become
\nfinal.\n<\/p>\n
                12.   The  Supreme  Court  in  the  case  of  PALANI  AMMAL v.\n<\/p>\n
VISWANATHA CHETTIAR DEAD) AND OTHRS (1998) 2 L.W.7) and this Court  in  ESTATE
\nOF M.  VENKATESA  SARMA,  ETC.    v.    A.N.RAJALAKSHMI  AND 9 OTHERS (1998-3-
\nL.W.369 ) have held that the notice under section 11 of the  Tamil  Nadu  City
\nTenants  Protection Act is mandatory only if the existence of landlord-tenancy
\nrelationship is established and a person not a  tenant  on  his  own  showing,
\ncannot  claim  rights  under  sections  106,  111  and  116 of the Transfer of
\nProperty Act.\n<\/p>\n
                13.  This Court in appellants’ own case  in  2001-3-L.W.693  (
\nThulasimaniammal and others v.  Kalyani & others) held that the tenant denying
\ntitle  of  the  landlord is not entitled to the benefit of the Tamil Nadu City
\nTenants Protection Act and the question of issue of notice under section 11 of
\nthe said Act does not arise.  I hold that in the light of the decision of this
\nCourt rendered in the appellants’ own case, reported  in  2001-3-L.W.693,  the
\nappellants are not entitled to claim that prior notice under section 11 of the
\nCity  Tenants  Protection  Act  is mandatory and once this Court has held that
\nthere is no landlord-tenant  relationship  between  the  respondents  and  the
\nappellants,  notice  under section 106 of the Transfer of Property Act is also
\nnot necessary.  The appellants by their own conduct, have forfeited the rights
\nconferred on them as tenants under the Tamil Nadu City Tenants Protection  Act
\nas well as under the Transfer of Property Act.\n<\/p>\n
                14.   Further,  learned  counsel  for the appellants submitted
\nthat the decision rendered in the appellants’ own case, reported in  2001-3-L.
\nW.693  would  not  operate as res judicata as it was rendered at interlocutory
\nstage.  I am unable to  accept  the  said  submission.    In  ARJUN  SINGH  v.
\nMOHINDRA KUMAR (A.I.R.<\/a>  1964 S.C.993), the Supreme Court has laid down the law
\nas under:-\n<\/p>\n
                ” If the court which rendered the first decision was competent
\nto  entertain  the  suit  or other proceeding, and had therefore competency to
\ndecide the issue or  matter,  the  circumstance  that  it  is  a  tribunal  of
\nexclusive  jurisdiction  or one from whose decision no appeal lay would not by
\nthemselves negative the finding on the issue by it being res judicata in later
\nproceedings Where the principle of res judicata is invoked in the case of  the
\ndifferent  stages  of  proceedings  in  the  same  suit,  the  nature  of  the
\nproceedings, the scope of the enquiry which the adjectival  law  provides  for
\nthe decision being reached, as well as the specific provisions made on matters
\ntouching  such  decision  are  some of the material and relevant factors to be
\nconsidered before the principle is held applicable.”\n<\/p>\n
Applying the principles laid down by the Supreme Court, the decision  rendered
\nby  this  Court in 2001-3-L.W.693 cannot be regarded as an interlocutory order
\nas the merits of the controversy have been  decided  and  the  rights  of  the
\nparties  have  been  decided  in  the  earlier  proceedings  in the same suit.
\nFurther, the decision was arrived at  by  the  Court  which  is  competent  to
\nentertain and decide the issue.  Hence, I reject the submission of the learned
\ncounsel  for the appellants that the earlier judgment would not operate as res
\njudicata.  I am of the view that even if it does not operate as res  judicata,
\nthe  earlier  decision  of this Court in the appellants’ own case, reported in
\n2001-3 -L.W.  693  is  binding  on  the  appellants  and  following  the  said
\ndecision, I hold that the appellants are not entitled to the benefit under the
\nTamil  Nadu  City  Tenants  Protection Act as well as the Transfer of Property
\nAct.\n<\/p>\n
                15.  The next point that arises is whether the suit is  barred
\nby limitation.   The  suit  was  filed  on 2.9.1988.  According to the learned
\ncounsel for the appellants, the first plaintiff has purchased the property  on
\n15.9.1974.   He  referred to Ex.A-2 and a reading of Ex.A-2 clearly shows that
\nthe first  defendant  refused  to  attorn  tenancy  in  favour  of  the  first
\nplaintiff.   In  Ex.A-2 it is also stated that the first defendant had gone to
\nthe extent of denying the title of the landlord.  It is therefore submitted by
\nthe learned counsel for the appellants that the time limit  to  determine  the
\nperiod  of  limitation  has  to be considered from the date of purchase of the
\nproperty and since the suit was filed after a period of 13  years,  11  months
\nand 17 days from the date of purchase, the suit is barred by limitation.\n<\/p>\n
                16.   I  am  unable  to  accept  the submission of the learned
\ncounsel for the appellants.  In Ex.A-3 which was sent as a reply to the notice
\nEx.A-2, the first defendant denied the title of the landlord.  Ex.A-3 is dated
\n15.2.1982 and the suit was filed on 2.9.1988.  As far as  notice  (Ex.A-2)  is
\nconcerned, the notice merely called upon the first defendant to pay the entire
\narrears of  rent  and also to deliver vacant possession of the property.  Even
\nbefore the issue of Ex.A-2 notice, the suit for specific performance filed  by
\nthe first  defendant  was  dismissed.    In  the  notice  issued  to the first
\ndefendant in Ex.A-2 it is not stated anywhere that  the  first  defendant  was
\ndenying  the  title  of  landlord  even from the date of purchase by the first
\nplaintiff, but it is stated that the tenant had gone to the extent of  denying
\nthe title  of  the landlord.  In that notice, it is not stated that from which
\ndate, the first defendant has denied title of the first plaintiff.   There  is
\nno  evidence  from  the  side  of  the appellants that the first defendant had
\ndenied the title of the landlord even from the  date  of  purchase.    In  the
\nabsence  of  any  such  evidence,  both  the  Courts relied upon Ex.A-3 as the
\nstarting point for the computation of limitation period, and  found  that  the
\nsuit filed by the first plaintiff is within the time.  Learned counsel for the
\nappellants  referred  to  Article  67 of the Limitation Act and submitted that
\nArticle 67 would only apply and not Article 65.  However, since it is  a  suit
\nfor  declaration  and  delivery  of possession and since the possession of the
\nfirst defendant has become adverse to the first plaintiff, I am  of  the  view
\nthat  Article  65  of the Limitation Act would apply and therefore the 12 year
\nperiod has to be computed from the date of Ex.A-3 notice issued by  the  first
\ndefendant.   I therefore hold that both the Courts are correct in holding that
\nthe suit filed is within the time.\n<\/p>\n
                17.   I  do  not  find  any  question  of  law,  much  less  a
\nsubstantial  question of law that arises out of the judgment and decree of the
\nfirst appellate Court.  Consequently, the second appeal fails and the same  is
\ndismissed, in   limine,   at   the  admission  stage  itself.    Consequently,
\nC.M.P.No.15577 of 2002 is closed.\n<\/p>\n
Index:  Yes
\nWebsite:  Yes
\nna.\n<\/p>\n
8.11.2002<\/p>\n
To<\/p>\n
1.  The Principal District Judge, Chelgalpattu.\n<\/p>\n
2.  The Subordinate Judge, Poonamallee.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Thulasiammal vs Kalyani on 8 November, 2002 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-124877","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThulasiammal vs Kalyani on 8 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thulasiammal-vs-kalyani-on-8-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thulasiammal vs Kalyani on 8 November, 2002 - 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