FATHIMA AUTOMOBILES Vs. P K P NAIR

JUDGEMENT

(1.) THE obstructor whose resistance to delivery of possession was ordered to be removed in M.P.No.943 of 1980 in E.P.No.762 of 1980 on the file of the IX Judge, Court of Small Causes, Madras, is the petitioner.

(2.) IN the course of my order the petitioner in H.R.C.O.P. will be referred to as the respondent, the respondents 1 and 2 therein as joint tenants or tenants, the 3rd respondent as the sub-tenant, Dhana-bagiammal as owner and the obstructor as the petitioner. The relevant facts to be noticed are as follows: H.R.C.No.986 of 1977 was instituted by the respondent for eviction of his joint tenants and has sub-tenant. The eviction was sought for on three grounds, particulars of which are not necessary. The application itself was presented on 14.3.1977. The Joint tenants made an endorsement on 21,12.1977 to the effect that they vacated the petition premises on 30.9.1976. Learned Counsel for the respondent made an endorsement to the effect that the tenants had not delivered vacant possession to the respondent and that he does not admit the above allegation, as there is wrongful sub-letting. Learned Counsel for the sub-tenant made an endorsement on 14.3.1979 to the effect that he had vacated and under instructions from his landlords, the tenants, the key had been handed over to the landlady Dhanabagiammal and that there is no need for any evidence to be adduced by the sub-tenant either oral or documentary. After these two endorsements referred to above, the tenants did not participate in defending the said proceeding. Though the sub-tenant participated in the inquiry, he did not adduce any evidence while the respondent as P.W.1 tendered evidence on his side. After hearing arguments, the learned Rent Controller passed an order of eviction. He found that though the tenants have made endorsement to the effect that they had vacated the premises, it is the unchallenged evidence of P.W.1 that the sub-tenant is still occupying the demised premises. It is this order of eviction that was put in execution in E.P.No.762 of 1980. Pursuant to the order for delivery made by the Court below, when the bailiff was taken there was resistance at the instance of "the petitioner herein and also of one V.P.Muraiidharar The respondent therefore came forward with M.P.No.943 of 1980 for removal of obstruction caused by the present petitioner and the said Muralidharan. The Court below directed the removal of obstruction. Hence, this revision by the petitioner alone, but not by the other obstructor.

(3.) MR.Ramanathan, learned Counsel for the petitioner relied very much upon section 52 of Transfer of Property Act. According to the learned Counsel, as per the endorsement made by the tenants dated 21.12.1977, they vacated the premises on 30.9.1976 i.e. long before the petition for eviction came to be presented. Therefore, the right acquired by the petitioner from Dhanabagiammal will not be affected by the eviction order. He further submitted that the petitioner does not claim from the judgment-debtors on the other hand, he claims, his right to be in possession under Dhanabagiammal the owner. Consequently, the respondent's remedy is not under Order 21, rule 97, Code of Civil Procedure, but only lay in a separate suit. He further contended that the petitioner had no knowledge of these proceedings, that the order of eviction is a collusive transaction and that at any rate, there is no finding when dispossession took place. A reference is also made to the fact that the present petitioner is not a party to the rent control proceeding.