S VENKITACHALAM IYER Vs. S RAMA IYER

JUDGEMENT

(1.) The plaintiff in O. S. No. 99 of 1958, Principal District Munsif's Court, Nagarcoil, which is a Trust, is the petitioner in this civil revision petition. Admittedly, the Trust owned two items of properties in survey No. 382/730 and survey No. 382/731 of an extent of .69 cents and 29 cents respectively in Nagarcoil. A lease of these lands was granted by the Trust to one Padakalingam in 1106 (1930) on payment of a rent of Rupees 36 per month, The interest of the lessee was assigned in 1106 (1930) by Padakalingam to Gabriel, who in turn assigned it in favour of one Ramaswami Mudaliar in 1107 (1931) from whom Swami Mudaliar secured a further assignment in 1109 (1933). Swami Mudaliar put up certain buildings and the respondent herein purchased the buildings from Swami Mudaliar in 1119 (1943) on payment of a consideration of Rs. 4,475. Thereafter, in 1120 (1944), the Trust had leased out the properties in favour of the respondent herein fixing the period of lease as six years on a monthly rent of Rs. 37.50 and also providing that on the expiry of the lease, the respondent should receive 2/3 of the value of, the buildings and improvements and surrender possession to the Trust and this was incorporated in a document styled as 'Tharapattom". The respondent did not pay any rent whatever to the Trust after 31/1/1951, which led to the issue of a notice by the Trust on 12-104953, demanding possession of the property leased out on receipt of the value of compensation. The respondent did not comply with this demand of the Trust and thereupon on 7/12/1953, a suit in ejectment in O. S. 151 of 1953 was filed by the Trust represented by its Managing Trustee and this was later transferred to the District Munsif's court. Nagarcoil and numbered as O. S. 99 of 1958. In that suit, an application in 1. A. 2153 of 1958 was taken out for the appointment of a Commissioner to value the buildings and the superstructures and they were valued by the Commissioner at Rupees 10,009. Objections were filed to the report of the Commissioner and subsequently, the court directed the. filing of calculation memos and ultimately. the court fixed the value of the buildings Put up at Rs. 14,982.60. On this valuation an objection was raised by, the respondent herein that even. on the basis of V3 of Rs. 14,982.60, the District Munsif's court, would have no pecuniary jurisdiction to try the suit. This objection was upheld and the Trust was ordered to pay court-fees on 2/3 of the value ascertained and also to present the plaint to a proper court and against this order, an appeal was filed by the Trust. in C.M.A. 16 of 1960 and that appeal was allowed and the order of the learned District Munsif was set aside. Against that order, the responds fled a civil revision petition in C.R.P. 2390 of 1960 and that was also dismissed on 6-10-1961. In resisting the suit, the respondent questioned the maintainability of the suit on the ground that all the trustees were not impleaded as parties and also the quantum of value of the improvements made by the respondent. On 13-6-1962, the learned District Munsif negatived the objections, raised by the respondent and held that a clear case for evicting the respondent had been made out. Regarding the value of the improvements, the finding arrived at earlier fixing the value of the improvements at Rs. 14,982.60 was affirmed and a decree in ejectment was passed directing the surrender of possession of the property by the respondent with the buildings thereon on payment of 2/3 of Rs. 14,982.60. A separate enquiry into the mesne profits was also directed under O. 20, R. 12, C. P. C, Against this, A. S. 116 of 1962 was filed by the respondent herein and that appeal was allowed by the Sub Court, Nagarcoil, and the suit was remanded to enable the impleading of all the trustees and also to ascertain the value of the improvements by a Commissioner. Against that order of remand, the petitioner filed C.M.A. 272 of 1963 and the remit order was set aside and the appellate court was directed to call for a finding regarding the quantum of improvements which was duly called for and submitted. However, in the course of the appeal, the respondent raised an objection regarding the maintainability of the suit on the ground that the civil court has no jurisdiction as the provisions of the Rent Control Act would apply. This objection was upheld and the suit was dismissed, though the quantum of improvements was refixed at Rs. 15022.60 The petitioner preferred S. A. 1770 of 1967 against this judgment and decree and on 27/4/1911, the decree of the learned Subordinate judge was set aside and that of the trial court was restored, subject to the modification that the petitioner will be entitled to recover possession of the suit properties on payment of 2/3 of Rs. 15,922.60. During the pendency of the second appeal, an application in C.M.P. 2533 of 1968 was filed by the respondent under S. 9 of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as the Act) on the ground that on 13-12-1967, the provisions of the Act had been extended to Nagarcoil town with the result that the respondent was entitled to claim the benefits of that Act and call upon the petitioner to sell the site to him. That, application was also taken up along with S. A. 1770 of 1967 and C. M. P. No. 2533 of 1968 filed by the respondent herein was dismissed on the ground that the notification extending the provisions of the Act to Nagarcoil municipal town would not cover non-residential buildings and, therefore, the respondent will not be entitled to file such an application. Subsequently, on 29-11-1972, the petitioner filed an E. P. and deposited 2/3 of Rs. 15022.60 as directed by the decree in S. A. 177 of 1967 and when matters stood thus, on 31-5-1975, G.O.Ms. No. 1285 was passed by the Government of Tamil Nadu extending the provisions of the Act to Nagarcoil municipal town area in respect of nonresidential buildings and this was published in the Gazette on 25-6-1975. On 25-7-1975, the respondent filed E. A. 298 of 1975 purporting to be under S. 9 of the Act and claiming that the petitioner should be directed to sell the properties to him for a price to be fixed by court on such terms and conditions as the court may deem fit. That application was resisted by the Petitioner herein on the ground that the respondent had delayed execution proceedings at every stage and that the application claiming the benefits of S. 9 of the Act was a frivolous and vexatious one when an earlier similar application had been disposed of finally. The petitioner also contended that having deposited the value of the improvements as per the decree in S. A. 1770 of 1967 in time, the petitioner had become the owner of the building and that would preclude the respondent from claiming any rights under the Act. Another objection was also raised that the respondent being only an assignee of the original lease cannot claim the sale of the Property to him.

(2.) The Principal District Munsif, Nagarcoil, on a consideration of the rival contentions of both parties found that even as an assignee, the respondent can maintain an application under S. 9 of the Act, but that the dismissal of the earlier application filed by the respondent in C.M.P. 2533 of 1968 and the attainment of the finality of the rights of parties as decided in S. A. No. 1770 of 1967 would preclude the respondent from putting forth a claim to rights under S. 9 of the Act, even though the respondent had not delivered possession of the property pursuant to the decree in favour of the petitioner. The extension of the provisions of the Act to the area in question on 31-5-1975 long after the decree finally adjudicating the rights of parties on 27-4-1971 was held to be of no avail, as new rights created owing to the delaying tactics of the respondent could not, according to the learned District Munsif, be permitted to defeat the terms of the decree. In this view, the application under S. 9 filed by the respondent herein was dismissed. Aggrieved by this, the respondent herein preferred an appeal in C.M.A. 6 of 1976 Sub Court, Nagarcoil. The learned Subordinate Judge took the view that as the decree in O. S. 99 of 1958 Principal District Munsif's court, Nagarcoil, has not been fully satisfied and since the respondent continued to remain in possession of the land as well as the buildings and since the respondent has also established that he is entitled to receive compensation, the application filed by the respondent, would be in order and the extension of the provisions of the Act only on 31-5-1975 would not in any manner preclude the respondent from claiming the benefits of statutory rights. In that view, the dismissal of the application in E. A. 298 of 1975 was set aside and the matter was remitted to the learned District Munsif to ascertain the area of the land which should be sold to the respondent as well as the Price Payable in respect thereof by the respondent with a further direction that other steps should also betaken by the court below in order to dispose of the, matter in accordance with law. it is the correctness of this order that is challenged in this civil revision. petition.

(3.) The learned counsel for the petitioner contended that at the time when the provisions of the Act were extended to the area in question, the rights of parties had already crystallised under the judgment and decree in S. A. 1775 of 1967 so that such rights had remained unaffected by the extension of the provisions of the Act and have to be recognised and given effect to. In addition, it was also pointed out that by virtue of the provisions of the lease deed as well as by the application of the law relating to fixtures, and under the decree in S. A. 1770 of 1977, the petitioner had become virtually the owner of the superstructure, so that on that date, when the provisions of the Act were extended, there was no dual ownership in the land and the building in order to attract the applicability of S. 9 of the Act. It was the further submission of the learned counsel for the petitioner that such rights in the petitioner, which had been recognised and upheld by a judgment and decree of court, cannot be interfered with or annulled or modified by the exercise of legislative power to disobey or disregard the decisions of court and that the respondent, after the passing of the decree against him, would only be in the position of a trespasser and, therefore, his position cannot be put on a par with that of a tenant so as to enable him to claim the benefits of S. 9 of the Act. It was also contended that the Legislature has no power to widen the amplitude of a legislative entry and, therefore, the treatment of a tenant whose tenancy had expired and who would be only in the position of a trespasser, as a tenant for the purposes of the Act was irregular and not in order. An objection that the decree in this case was only one viz., that passed by this court and that the application, if at all, under S. 9 of the Act, could be filed only before this court and not before the executing Court. which was concerned only with the execution of the decree and not varying it was raised. On the other hand. the learned counsel for the respondent submitted that though the decree in S. A. 1770 of 1967 had granted the relief of possession to the petitioner, there was no declaration therein of the right of the petitioner to the superstructure and therefore, the petitioner cannot claim on the strength of the decree that. the superstructure had become his on the passing of the decree or even on the date, when the provisions of the Act were extended. Reference was made to Ss. 12 and 13 of the Act to contend that the respondent will be entitled to rights under the Act, notwithstanding any contract or any provision of law include in a the law of fixtures as laid down in S. 108 of the T. P. Act. The wider definition of the expression 'tenant' occurring in the Act was relied upon to enable the availing of the benefits of the Act by a person like the respondent who had continued in possession the property despite the passing of a decree against him, which however, had remained unexecuted. In other words, the learned counsel for the respondent contended that until such time as possession of the property is parted with by the tenant, the provisions of S. 9 of the Act would continue to apply. It was further submitted that having regard to S. 10 of the Act read with S. 9, the application was properly laid before the executing court. According to the learned counsel for the respondent, the expression 'tenant' would also include an (ex-tenant) for the purposes of enacting the legislation and no objection, therefore, can be taken to the conferment of the status of tenants, even on persons, who had continued to remain in, possession of the property despite the determination of the lease or the passing of a decree in ejectment against them. Attention was also drawn to the circumstance that no objection in this form was raised earlier and that the petitioner ought not therefore be permitted to put forth such a contention in the course of a revision arising under the provisions of the Act.