PUSHPARAJ Vs. A S DEVAN

JUDGEMENT

(1.) The judgment of the learned Additional District Judge, Cuddalore, made in A.S.No.139/91 affirming the judgment of the trial Court in a suit for recovery of possession, is under challenge in this second appeal.

(2.) The respondents/plaintiffs filed the suit for recovery of vacant possession in respect of the property mentioned in the plaint Schedule, stating that they were the owners of the landed property, measuring 2107 square feet by way of a purchase; that the defendant was a tenant under the plaintiffs' vendors and continued to be a tenant under the plaintiffs; that a petition in R.C.O.P.No.53/79 was filed for eviction; that on the dismissal of the same, an appeal in R.C.A.No.78/80 was filed, and that was also dismissed; that both the lower Courts found therein that the original tenancy was only in respect of the vacant site, and the defendant offered to purchase the site at the market value, as per the provisions of the Tamil Nadu City Tenants Protection Act; that following the same, the parties entered into an agreement for sale on 30.7.1984, wherein the consideration of the vacant site was fixed at Rs.17,000/-; that an advance of Rs.5,000/- was paid; that the balance was to be paid on or before 30.7.1985; that if the defendant did not perform his part of the contract, the advance should be forfeited, and the plaintiffs should take possession; that the defendant was never ready and willing to perform his part of the contract; that the defendant issued a notice through Counsel on 24.4.1985, alleging that the said agreement was obtained by fraud and undue influence; that the same was replied denying the allegations, and then, there was exchange of notices; that the plaintiffs also issued a notice on 3.8.1985 demanding the specific performance, which remained unheeded, and under such circumstances, the plaintiffs were entitled to vacant possession of the property, since the lease has already come to an end; that there was no landlord and tenant relationship continued, and hence, there arose a necessity for filing the suit.

(3.) The suit was resisted by the defendant stating that it is true that there were further proceedings under the Tamilnadu Buildings (Lease and Rent Control) Act; but in those proceedings, the contention of the defendant was upheld that what was originally leased out was only a vacant site, and thus, he was entitled to the benefits of Tamil Nadu City Tenants Protection Act; that it is true that there was an agreement entered into between the parties, and Rs.5,000/- was paid as advance; that even then, the defendant never agreed to give up his status as tenant, nor had he given up the same at any point of time; that the defendant neither surrendered the possession as tenant nor relinquished his right as tenant; that the agreement did not read so also; that the tenancy continued to subsist despite the agreement; that he was also entitled to all the benefits under the provisions of the Tamil Nadu City Tenants Protection Act; that the rights available under the Act were of statutory; that the tenancy in favour of the defendant was never terminated; that while so, such a suit itself was not maintainable; that the defendant was entitled to the the benefits and protection given under the Tamil Nadu City Tenants Protection Act; that without a valid notice as contemplated in the said enactment, the suit for possession was not maintainable, and hence, the suit was to be dismissed.