T MAYERULAN NADAR Vs. K JAYALAKSHMI AMMAL

JUDGEMENT

(1.) THE plaintiff in O. S. No. 2976 of 1977 on the file of I assistant Judge, City Civil Court , Madras , is the appellant in this second appeal. He filed the said suit against the respondent herein for possession of the suit property and for arrears of rent and damages for use and occupation. Though the trial Court decreed the suit in the first appeal filed by the respondent, viz. , A. S. No. 134 of 19823 on the file of VI Additional Judge, City Civil Court , Madras , the suit has been dismissed. While the first appeal was pending, the respondent also filed C. M. P. No. 5 of 1982 under Sec. 9 of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as'the Act') for purchasing the suit land on the ground that pursuant to "the amending Act" (which was not specified) she became entitled to the protection under the Act. However, since there was delay of 770 days in filing the said CM. P. No. 5 of 1982, she also filed CM. P. No. 550 of 1982 for condoning the said delay. Further, she also filed C. M. P. No. 551 of 1982 for raising additional grounds of appeal on the ground of the amendment of City tenants Protection Act" (here again the alleged amendment was not specified ). In the said additional grounds, it is claimed that by virtue of the amendment'the tenancies of the land in which the tenants have put up the superstructure prior to the publication of Tamil Nadu City Tenants protection Act'have the'benefits thereon'and the suit having been filed without complying with Sec. 11 of the said Act, has no dismissed. All the above C. M. Ps. have been filed on 20. 3. 1982.

(2.) THE first appeal as well as the C. M. Ps. were taken up together by the lower appellate court and by a common judgment, it allowed the above said CM. P. No. 551 of 1982 and sustaining the abovesaid additional ground raised pursuant to Sec. 11 of the Act, held that before filing the suit,notice as per Sec. 11 of the Act, was not given and hence the suit itself was not maintainable. Thus, while dismissing the suit, it allowed the first appeal. However, it dismissed C. M. P. Nos. 5 and 550 of 1982. Aggrieved by the said judgment in so far as it allows CM. P. No. 551 of 1982 and A. S. No. 134 of 1982, the plaintiff has preferred this second appeal.

(3.) BUT, I am unable to accept this contention. In the same written statement, the defendant only pleaded thus: ". . . . the suit property which was leased out to her husband on 30. 1. 1968 under the terms of a registered lease deed by the plaintiff. Subsequently, the defendants husband died and he had put up superstructure on the leased land at his own expense. . . . While so, the defendant in August, 1970 was called upon her to pay the lease rent of Rs. 50 p. m. inn full ignoring the understanding with her deceased husband regarding deduction of rent as stated above. Pending settlement of the understanding in future, the defendant complied with the direction of he plaintiff to pay the lease rent of Rs. 50 fully every month. . . On 5. 2. 1974, a proposal was made by the plaintiff offering the sale of the leased property. . . . . . and gave the option to the defendant to purchase the same. . . taking into consideration her possession as a lessee continuously under the lease agreement. . . . . The sale agreement between the defendant and the plaintiff was accordingly executed on 14. 8. 1974. . . . The defendant is entitled in law under the agreement of sale to have the sale completed by registration of the sale deed by the plaintiff. [italics supplied] If the passage in the written statement relied on by learned counsel for the appellant is read along with the above referred to passages in the same written statement, it cannot be said that the defendant has positively and categorically denied title of the plaintiff. In substance, all that she says in the written statement is that after the death of her husband who was the tenant in the suit land, she became the tenant and while so she entered into a sale agreement with the plaintiff for purchaser of the said land and that she is entitled in-law under the agreement of sale to have the sale completed by registration of the sale deed by the plaintiff. It is obvious that she cannot become owner of the property unless sale deed is executed in her favour pursuant to the alleged sale agreement. It is clear from the written statement itself that she herself was not unaware of this settled law, even though in the written statement she may say that in view of some alleged understanding between her and the plaintiff and the alleged payment of more than 75% of the sale consideration under the sale agreement she had become the "purchaser" of the said property. Even while saying so, she also says that "under the agreement, she would be entitledto get the sale deed registered in due time. Hence, the defendant herein is in possession of the property not as lessee since 1974, but as purchaser". [italics supplied] therefore, taking the written statement as a whole, it cannot be said that she is positively denying the title of the plaintiff. In fact, even as per the said written statement she has only filed the abovesaid C. S. No. 3725 of 1977 for specific performance of thee above referred to sale agreement. That also above shows that she is conscious of the fact that she has not secured title to the property in question pursuant to the sale agreement alleged by her. Therefore, it cannot be said that she is not a tenant under the Act and she cannot claim the rights under the provisions of the Act.