L. SUNDARESA NAICKER Vs. BABY AMMAL

JUDGEMENT

(1.) The petitioner has filed a petition under Sec. 47 of the Code of Civil Procedure stating that the order of eviction obtained by the respondent in R.C.O.P. No. 968 of 1985 cannot be given effect to in view of the subsequent civil litigations with regard to the title to the property. In the civil proceedings, it is admitted that the respondent herein was found that she is not the owner of the property. As the respondent is not the owner of the property it is the contention of the petitioner that the ex parte order of eviction in R.C.O.P. No. 968 of 1985 cannot be executed. Both the courts below have dismissed the said petition on the ground that the civil proceeding with regard to the title of the property was pending and, hence, at this stage, it cannot be said that the respondent is not the owner of the property. However, subsequently on 22.1.1993, in O.S. No. 4869 of 1982 on the file of the City Civil Court, Madras, the respondent was found to have no title in the subject matter of the petition. The suit filed by her for declaration of title had been dismissed. As against this, the respondent filed an appeal in A.S. No. 259 of 1993 and the same was dismissed on 23.12.1994. In the civil proceedings, the respondent's claim for title has been negatived, she is not the owner of the property and, as such, she cannot pursue the order of eviction.

(2.) The learned Counsel for the respondent contended that under the Rent Control Act, the concept of relationship of landlord and tenant is entirely different and it is not necessary that the landlord should have a title over the property or he should be the owner of the property. Under the Rent Control Act, the person, who files the eviction petition is entitled to have the right to collect the rent, can maintain the eviction proceedings. The petitioner having remained ex parte in the rent control proceedings, it is not open to him to file the petition under Sec. 47 of the Code of Civil Procedure at the executing stage, in order to defeat the order of eviction and as such, the order of the courts below are to be confirmed.

(3.) From the above stated contentions of both the learned Counsel, the only question involved in the civil revision petition is whether the respondent is entitled to enforce the order of eviction in R.C.O.P. No. 968 of 1985 and evict the petitioner herein. There is no dispute with regard to the fact that in O.S. No. 4869 of 1982 on the file of the XIII Assistant Judge, City Civil Court, Madras, the claim of the respondent with regard to the title over the property has been negatived and the suit was dismissed. The respondent filed an appeal in A.S. No. 259 of 1993, which was also dismissed. The learned Counsel for the respondent is not in a position to inform the court as to whether his client has preferred any second appeal against the judgment and decree dated 23.12.1994 in A.O. No. 259 of 1993. As the matter stands, the respondent is not the owner of the property and her claim of title over the suit property and her claim of title over the suit property has been negatived. But, however, she filed R.C.O.P. No. 968 of 1985, claiming to be the owner of the property setting up title in her. Now that, it has been found against her she cannot be allowed to execute the order of eviction for the simple reasons that even if she is permitted to enforce the order of eviction, she cannot recover possession, as she is not entitled for the same. If she is permitted to recover vacant possession, then it may lead to another round of litigation, wherein the real owner has to file the suit for recovery of possession.