Thulasimaniammal and 6 others vs Kalyani and 5 others

P. Shanmugam, J.—The defendants 2 and 4 to 9 in O.S. No. 310 of 1988 on the file of the Sub-Court, Poonamallee and the petitioners in

I.A. No. 1048 of 1988 are the petitioners in this revision. The petitioners'' application u/s 9 of the Tamil Nadu City Tenants Protection Act

(hereinafter referred to as the ''Act'') was dismissed by the learned Sub-Judge, Poonamallee and confirmed by the Additional District Judge,

Chengalput in C.M.A. No. 3 of 1988. The revision is against these orders. The suit property in O.S. No. 310 of 1988 originally belonged to one

Mrs. Rajeswari Ammal. One Soundara Pandian was the tenant under the said Rajeswari Ammal. The petitioners and the 6th respondent herein are

the legal heirs of the said Soundara Pandian. One P.L. Shanmugam, whose legal heirs are the respondents 1 to 5 herein, had purchased the said

property from the said Rajeswari Ammal by a sale deed dated 15.9.1974. However, the said Soundarapandian, claiming to have entered into an

agreement of sale with Smt. Rajeswari Ammal, filed the suit in O.S. No. 138 of 1978 on the file of the Additional Sub-Court, Chengalput for

specific performance of the contract of sale. The said suit was dismissed and on appeal, the dismissal was confirmed by the District Court,

Chengalput in A.S. No. 49 of 1981 by Judgment dated 9.12.1981. Soundarapandian filed Second Appeal No. 1847 of 1984 and the same was

dismissed by Srinivasan, J., (as he then was) on 8.12.1987 confirming the decree of the District Court.

His Lordship, while considering the claim of the appellant therein that he is entitled to the benefits of the Act, has refused to allow the said

contention in the Second Appeal for the first time. His Lordship also held that this question did not really arise in the said proceeding; which is a

suit filed by the said Soundarapandian, appellant therein, for specific performance of an agreement of sale and in the alternative for compensation.

His Lordship also held that the appellant therein was in possession of the suit property and the Courts below have found that the appellant had

taken on lease only the vacant site and erected the superstructure and even when the proceedings were taken up by the subsequent owner for

eviction, it will be open for the appellant to contend that he is entitled to the benefits of the Act. His Lordship also held that the Court in which the

suit is filed for ejectment will have to decide the question whether the appellant is entitled to the benefits of the Act and thus the question is left open

to be decided in future proceedings.

Thereafter, the said Shanmugam filed the suit in O.S. No. 310 of 1988 on 8.1.1988 against Soundarapandian and one Santhanam for

declaration that he is the absolute owner of the property and for a direction to the defendants to vacate and hand over vacant possession of the suit

property and for mesne profits. Written statement was filed in the said suit on 23.1.1988. Subsequently, on 21.9.1988, the said Soundarapandian

filed the petition I.A. No. 1048 of 1988 u/s 9 of the Act praying for a direction to the respondent therein viz. Shanmugam to sell the entire 3040

sq.ft. of land for convenient enjoyment of the building and trees constructed and grown by him, at a price to be fixed by the Court according to the

Rules. The respondent therein filed a counter. During pendency of the proceedings, both the petitioner and the respondent therein viz.

Soundarapandian and Shanmugam died and petitioners 1 to 7 and the sixth respondent herein were impleaded as legal representatives of the

deceased petitioner Soundarapandian while respondents 1 to 5 herein were brought on record as legal representatives of the deceased respondent

Shanmugam. In a full fledged enquiry, the learned Subordinate Judge, in his order dated 30.4.1999, found that inasmuch as the petitioners herein

have not established that they are the tenants of the respondents and therefore they are not entitled for the relief. On appeal, the Additional District

Judge, Chengalput confirmed the findings of the Sub-Judge holding that the petitioners have not accepted the respondents as landlords and have

not paid the rent. The revision is against this confirming order.

I heard Mr. K. Doraiswami, Senior Counsel for the petitioners and Mr. T.R. Rajagopalan, Additional Advocate General on behalf of the

respondents and considered the matter carefully.

According to the learned Additional Advocate General, the question in issue has been concluded by the Judgment of the Supreme Court in

Palani Ammal v. Viswanatha Chettiar (dead) and others, 1998-2-L.W.7, wherein their Lordships held that:

When a tenant denies the title of the land, he incurs the forfeiture of lease and there is no occasion for such person to invoke Section 9. For

operation of Section 9, an admitted relationship of landlord and tenant must exist.

Their Lordships, on facts of the case, while setting out the law, held as follows:

It, therefore, becomes clear that consistently the defendant''s stand was that plaintiff No. 3 is a non-entity and she claimed statutory right of

purchase u/s 9 of the Act only against plaintiff Nos. 1 and 2. Once plaintiff Nos. 1 and 2 are found to have validly sold the suit land to plaintiff No.

3 it must obviously be held that application moved by defendant u/s 9 against total strangers like plaintiff Nos. 1 and 2 was liable to be dismissed

as totally incompetent and uncalled for. Once the defendant refused to admit the ownership of plaintiff No. 3 who might have become the landlord

of the land as per Section 2, sub-section (3) of the Protection Act as a legal transferee of the suit land from plaintiff Nos. 1 and 2 the conclusion

becomes inevitable that the defendant''s application u/s 9 against the strangers like plaintiff Nos. 1 and 2 would be rendered totally incompetent as

the defendant did not want any statutory right of compulsory purchase against the real owner of the suit land, namely, plaintiff No. 3.

Therefore, the only question that arises for consideration is, whether the petitioners have denied the title of the respondents and whether the

petitioners continue as tenants of the suit property.

Before we go into the finding, pleadings as set out by the parties in reference to this question can be looked into. It is not in dispute that

Rajeswari Ammal, the original owner of the property, has sold the same to Shanmugam by a sale deed dated 15.9.1974. Immediately thereafter,

Shanmugam caused the issue of legal notice to Soundarapandian for which a reply was sent by Soundarapandian''s counsel on 20.10.1974. In that

notice, it is stated that Soundarapandian is the agreement holder to purchase the land and that Shanmugam has no right to determine

Soundarapandian''s tenancy as Soundapandian is ''now staying in his own rights"". It is also pleaded that the notice of termination is not valid in law

and on facts. Again, Shanmugam caused the issue of another legal notice dated 9.2.1982 calling upon Soundarapandian to quit and deliver vacant

possession of the property. In that notice, it is claimed that Soundarapandian was the tenant under Rajeswari Ammal in respect of the premises on

a monthly rent of Rs. 50/- and after the purchase of the property on 15.9.1974 by him, Soundarapandian had attorned the tenancy in his favour.

For this, a reply was sent on behalf of Soundarapandian by his counsel on 15.2.1982. In that he has categorically stated that Shanmugam is not the

owner of the land. It is stated in the said reply notice as follows:

Your client is not the owner of the land measuring 80 feet North South and 38'' East to West. Zinc sheet superstructures thereon in S. No. 594/1

with Door No. 17, North Park Street, Ambattur do not belong to your client. My client is the absolute owner of the site as well as superstructure

thereon. My client is having a house thereon and residing there. He is also having other superstructure and he has rented out to V. Santhanam,

Rangaswamy Nadar and Anaikutti. My client is receiving the rents from the said three tenants. My client was originally tenant under your client''s

vendor B. Rajeswari. The sale in favour of your client is void. The sale deed dated 15.9.1974 is not binding upon my client. It is a sham

document.......

(emphasis added)

In the plaint in O.S No. 310 of 1988, Shanmugam had specifically made a plea that Soundarapandian was in occupation of the land as a tenant

under the previous owner Rajeswari Ammal, but never attorned the tenancy in his favour and was never regular in payment of rent to Rajeswari

Ammal. In para 4 of the plaint, Shanmugam has stated that by denial of his title by the defendant, automatically disentitled himself from claiming any

right as a tenant under the Act. According to the plaintiff therein, the defendant (Soundarapandian) did not attorney his tenancy in favour of the

plaintiff from the date of his purchase and in fact, he set up a hostile claim of title to the owner of the property as would be evidenced from the

notice issued by the defendant through his counsel on 15.2.1982. It is also pleaded that the defendant did not pay any rent to the plaintiff to the

schedule mentioned property.

A written statement was filed to this plaint, wherein Soundarapandian has denied that he never attorned the tenancy. But, he has not specifically

pleaded contra. With these pleadings in the suit, the application u/s 9 of the Act was filed in I.A. No. 1048 of 1988. It is further contended by

Soundarapandian in the said petition that the property originally belonged to one Rajeswari Ammal and he was paying rent regularly to Rajeswari

Ammal. It is further stated that Rajeswari Ammal agreed to sell the suit land to him, but contrary to the agreement, she executed a sale deed in

favour of Shanmugam and on the strength of the said sale deed, the said Shanmugam was attempting to take forcible possession of the petition

mentioned property which is the subject matter of the suit. It is further stated that he has let out a portion of the building to one Anaikutty and

another portion thereof to one Santhanam and on the dismissal of A.S. No. 40 of 1981, Shanmugam wanted to evict him from the building and so

he filed R.C.O.P. No. 26 of 1983 and the same was dismissed. It is further stated that the suit is not maintainable for want of notice u/s 11 of the

Act. In the said petition, Soundarapandian has claimed that he is the tenant under Rajeswari Ammal, the former owner of the suit property and that

he constructed the building before 1974 when he was a tenant of the land and he continues in actual physical possession of the land and building till

date and claiming the benefits of Section 9 of the Act, he has prayed for the relief.

A counter affidavit was filed by Shanmugam contending that Soundarapandian is a trespasser squatting on the suit property without any claim

or title to the suit property and there is no basis for claiming protection under the Act. He has specifically pleaded in Para No. 6 as follows:

I submit that at no time, has the petitioner recognized me as his landlord nor he has paid one pie towards rent till this date......

The parties went into this question in a full fledged trial wherein on the side of the petitioners, P.W.1 was examined and Exs. A-1 to A-23

were marked and on behalf of the respondents, R.W.1 was examined and Exs. B-1 to B-37 were marked. A Commissioner was appointed and

his plan and report were marked as Exs. C-1 and C-2.

In the evidence, the first respondent herein viz. Kalyani, wife of Shanmugam as R.W.1 has stated that in reply to Ex. B-36 notice dated

9.2.1982 seeking to vacate and deliver vacant possession of the property to the respondents, S. Soundarapandian sent Ex. B-37, dated

15.2.1982 claiming that he is the absolute owner of the suit property and that he is exercising his ownership by letting out to tenants. In the said

reply, Soundarapandian also refused the title of the Shanmugam saying that the sale deed dated 15.10.1974 is void, sham and not binding.

The first petitioner herein viz. Thulasimaniammal as P.W.1 has deposed that they stopped collecting rent from the year 1974 and that they got

rent receipts upto that period. Her further case is that they were depositing the rent in the Court.

The learned Subordinate Judge, after a detailed consideration, has found that the petitioners have not only denied the ownership of Rajeswari

Ammal but also the respondents and they have made a false evidence to the effect that they have remitted the rental arrears. He has given a finding

that at no point of time, the petitioners have claimed tenancy under the respondents and therefore they are not entitled to the benefits of Section 9

of the Act. It is also found that the petitioners are squatting on the property for years together without paying any rent and the petitioners have not

questioned Ex. B-37 or its contents wherein they have denied the title of the respondents, in their appeal before the District Court.

On appeal, in C.M.A. No. 3 of 1999, the learned Additional District Judge, Chengalput also found that there is no acceptable evidence, either

documentary or oral, to establish that the petitioners are paying rent to the respondents and though the petitioners have admitted that the suit

properties were purchased by Shanmugam, the petitioners have not taken steps to attorney the tenancy of the respondents and pay the rent to him.

It was also found that in Ex.B-22, the petitioners have claimed that there is no agreement between the petitioners and the respondents and there is

no question of terminating the tenancy. It was also found that taking advantage of the Act coming into force from 3.3.1980, the petitioners have

changed their stand and trying to make inconsistent pleas that they are the tenants. It was further found that the petitioners were not in exclusive

possession of the property since the properties were sublet by the petitioners and the fact that the respondents are the true owners of the property

and that they have paid the rent have not been established.

To make a claim u/s 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 the 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 u/s 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.

In V. Raju v. Angammal, (1994) 2 L.W. 100, Srinivasan, J., as he then was, held that once it is found that the petitioner is not a person who

can claim benefit under the City Tenants Protection Act, as a ''tenant'' defined by the Act, on the ground that he has denied the title of the landlord,

the relationship of the landlord and the tenant having been severed by the conduct of the petitioner, even prior to the filing of the suit, the contention

that a notice should have been issued u/s 11 of the Act is wholly unsustainable.

A tenant denying the title of the landlord is not entitled to claim the benefits of the Act. This has been held so by a series of decisions of this

Court vide 1) Bhargavakula Nainargal Sangam, Thiruvannamalai rep. by its present Bhargavakula Nainargal Sangam and Others Vs. Arunachala

Udayar, (2) Bhargavakula Nainargal Sangam Vs. Chakravarthi, (3) Boologanathan Vs. P. Govindarajan and Others, (4) Chinnakannu Pandithar

Vs. Kasturi, and (5) Veeraswamy Naicker and another v. Alamedlu Ammal and others, 78 L.W. 281.

With reference to various decisions of Supreme Court, their Lordships, in Palani Ammal Vs. Viswanatha Chettiar (dead) and others, have held

as follows:

On the scheme of the Protection Act, it must be held that Section 11 can be pressed in service only when the tenant accepts the plaintiff as his

landlord and against whom he claims protection and benefit both u/s 9 as well as u/s 3 of the Protection Act. Once the tenant refuses to admit the

ownership, then the tenant rendered himself totally incompetent to claim the statutory right of compulsory purchase against the real owner. Section

9 pre-supposes that the tenant must accept the owner of the land as landlord and against whom he can claim appropriate relief by offering to

purchase the land over which his structure stands on payment of price fixed by the Court to such landlord who then has to convey his right, title

and interest in the land in favour of such tenant owning the structure. Consequently it must be held that for operation of Section 9 and admitted

relationship of landlord and tenant must exist. If the tenant alleges that landlord is not the real owner of the property, but somebody else is the

owner or he himself is the owner, there would remain no occasion for him to offer any price of such land to such landlord whom he treats as a

stranger to that land.

Their Lordships further held that:

.... Section 9 can apply only when there is admitted relationship of landlord and tenant, contractual or statutory, between the parties, once such

relationship is contraindicated by denial of title of landlord by the tenant and consequently, mode of determination of tenancy u/s 111 (g) (of the

Transfer of Property Act) is attracted, its applicability by itself will nullify and make Section 9 inoperative in such a case. In that eventuality, as per

Section 13 of the Protection Act, such a provision of Section 111(g) of the T.P. Act, has to be treated as repealed.

In my view, the judgment of their Lordships in Palani Ammal''s case squarely applies to the facts of the case and the dismissal of the application u/s

9 of the Act by the Sub-Court as confirmed by the Additional District Court is to be confirmed. I do not find any error of jurisdiction or illegality in

the orders of the Courts below. Hence, C.R.P. fails and the same is dismissed. No costs. Consequently, C.M.P. No. 9862 of 2000 is also

dismissed.