KADIYAM RAYUDU Vs. KAMARSU VEERRAJU

JUDGEMENT

(1.) Some vary interesting and difficult questions have been raised in the course of the discussion of this second appeal. The suit from which the second appeal has arisen was one, as first instituted, for specific performance of contract to sell immoveable property made by defendants Nos. 1 and 2. Defendants Nos. 3 to 6 were impleaded in the suit by the plaintiffs on the ground that they were tenants under defendants Nos. 6. and 2 in occupation of the suit property. The defendant was subsequently made a party to the suit on the ground that he claimed to be the transferee of the property from defendants Nos. 3 to 6. The prayers is the plaint included not merely one for specific performance of the contract by the execution of; a proper deed of conveyance by defendants Nos. 1 and 2, but also a prayer for possession of the property against all the defendants. Mr. Alladi Krishnaswami Aiyar on behalf of the appellants has raised two contentions before us. One argument of his was that the defendants Nos. 3 to 6 being admitted in the plaint even at the time of the suit to be tenants of defendants Nos. 1 and 2, in any case the plaintiffs assuming them to have acquired all the right, title and interest of the vendors in the property, that is, the landlords of the property, could still not maintain a suit for possession against tenants without some allegation showing either that the tenancy has expired or has been duly determined, by notice or forfeiture. It must be admitted that the plaint in this respect is clearly defective. There are no allegations at all in the plaint showing how on the admission that the defendants Nos. 3 to 6 were tenants of defendants Nos. 1 and 2 cultivating the lands they were bound to deliver over possession of the property to, the plaintiffs. Though some kind of objection appears to have been taken to the maintainability of the claim in the same suit against this set of defendants, it is clear that no question with regard to want of notice was taken in the written statements. But Mr. Alladi Krishnaswami Aiyar has drawn our attention to several cases in this Court where it has been held that the question of want of notice may be taken on the part of the tenants for the first time even in second, appeal. No doubt, there are two ways of looking at the matter. If the absence of any allegation with regard to notice to quit should be regarded as going to the cause of action, then, apart altogether from any allegations or defences made by the defendants, it must be stated that it is incumbent on the plaintiff-landlord seeking to eject persons on the ground that they were tenants to allege and prove not merely his title as landlord but also the determination of the tenancy in one or other of the ways known to law. Viewed in that aspect, undoubtedly these decisions are clearly authority for the position contended for by the learned Vakil for the appellants. There is also another way of looking at it. All that is stated in the plaint is that these persona are persons cultivating the laud as ryots. In the written statement the question is not raised whether in the circumstances and on the facts of the case they were at the time of the institution of the suit persons whose tenancy had to be determined by notice before they can be ejected from their holding. However, it seems to me that it is really unnecessary to discuss this question further because on a consideration which will be presently referred to it is clear that the present appellants before the Court are persons as against whom the plaintiffs would be entitled to such a decree for possession as has been prayed for.

(2.) The next contention that was put forward for the appellants was that these defendants- appellants were really strangers and that the cause of action, if any, against them could not be regarded as a determination of any tenancy and that the suit is therefore, bad both on the ground of misjoinder of parties and misjoinder of causes of action. The learned Vakil for the respondents has drawn our attention in this connection to the provisions of Section 99, Civil Procedure Code. That section is perfectly clear and is to the effect that no Court of Appeal can reverse, vary or remand the case on appeal on account of any misjoinder of parties or causes ?f action or any error, defect or irregularity in any proceedings in the suit net affecting the merits of the case or the jurisdiction of the Court. It has not been shown in this case that the misjoinder of parties or causes of action such as they may be has affected either the merits of the case or could be regarded as having borne in any manner on the jurisdiction of the Court. But the contention of Mr. Alladi Krishnaswami Aiyar was also presented in another form, and that was this: The plaintiffs were really seeking in the case for enforcement specifically of the contract entered into by defendants Nos. 1 and 2. Undoubtedly a plaintiff in such circumstances can make as party to the suit and also to the breach claimed by him not only the persons who have entered into the contract but all personal bound by the contract or who may be regarded as being bound to perform and carry out the contract entered into by defendants Nos. 1 and 2, such as even alienees of the property with notice of the subsisting contract. But when we come to lessees of property their estate as lessees is a subsisting independent estate carved out of the original estate and they can be ejected in at all only by the person who has become the landlord and after determining the tenancy or after showing that the tenancy baa determined otherwise, This case m against defendants Nos. 3 to 7 is not one in which the plaintiffs are really seeking to enforce the rights they had under the contract of defendants Nos. I and 2 but they are virtually seeking to enforce the rights of defendants Nos. 1 and f themselves as landlords even before the plaintiffs as prospective vendees under the contract clothe themselves with the legal right as landlord by obtaining conveyance. In this view undoubtedly the, question will be not really of any misjoinder of causes of action but the absence of a cause of action in the plaintiffs. But to this contention the learned Vakil for the respondents has drawn our attention to the provisions of Section 27 of the Specific Belief Act. In that part of the Act which deal with the persons against whom contracts may be specifically enforced, this section provides in Clause (c) "that specific performance of a contract may be enforced against any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant." In the illustrations to that section are given two cases The first of those case is one of a tenant for life of an estate with a power, to dispose of the property and it is indicated in this illustration that when a person, though a life-tenant having such a power of disposal, enters into a contract with another person to sell the property but, dies before actually executing the conveyance, the person who has obtained the contract might enforce specific performance even as against the person who would have taken the property as a remainderman if there had been no exercise of the power. To state the case in the terms of the section, it is clear indication to the effect that every person can be compelled specifically to perform the contract whose title to the property such as it may be might be defeated by the election or will of the person who has contracted to sell. The other illustration refers to joint tenants of property and it is stated that though on the death of one of the joint tenants the property would have survived to the other still if one of the tenants during his lifetime enters into a valid contract to sell and convey his interest the, prospective purchaser can enforce specific performance of the contract m against the atherjoint tenant who would, have taken the entire property by survivorship otherwise, The question, then is whether, in this case defendants Nos. 3 to 7 can be regarded as persons whose title might have been displaced by defendants Nos. 1 and 2 within the meaning of those words in Section 27 of the (Specific Relief Act. What are then the facts in this case. It has been proved that defendants Nos. 3 to 6 became tenants under Ex. H. This document was no doubt, denied and challenged by these defendants, but the genuineness of that document has been found. If so, it follows that such title as defendants had could only be under Ex. H. Under Ex. H defendants Nos. 3 to 6 had a lease only for one year and that one year had expired with the 30 June previous to the institution of the suit. They were, therefore, merely in the position of persons in possession of property even after the expiry of the term fixed or possibly merely tenants on sufferance. If it was their contention or case that at the time of the institution of the suit they had vested in them any right to immoveable property which could not possibly be displaced by defendants Nos. 1 and 2, it was open to them and it was incumbent on them to have alleged those facts. That has not been done. There is not even in the written statement or anywhere else even an allegation of the tenancy under Ex. H they were continuing to hold on as tenants from year to year or anything of the kind. There is one other aspect to which also reference may be made. It is clear that defendants Mob. 3 to 6 could not have set up any such contentions as above referred to because their real position in the case was that they were themselves entitled to the property. Claiming Such right they had really purported to convey the property to the 7th. defendant and that undoubtedly constituted a renouncement by them of their character as tenants. After this act of repudiation of tenancy a forfeiture would undoubtedly have ensued in law and it would have been open to defendants Nos. 1 and 2 thereon to have elected to eject the tenants and resume possession without any notice or any formal determination of tenancy. If that was really the position, of defendants Nos. 1 and 2 in the case thou it follows that having regard to the train of Section 27, defendants Nos. 1 and 2 were really in the position of persons who could save, if they had chosen, immediately displaced such title as it may have been of defendants Nos. 3 to 6. Therefore, there is mo reason to hold that the prevision of Clause (c) of Section 27 of the Specific Relief Act could not apply to the present case. It follows on my finding that the terms of that clause are applicable to the present case, and it follows that the decree by the lower Appellate Court against these defendants could be regarded not as a decree passed at the instance of a contracting party against tenants of the property even before the contractee obtained a conveyance but really under the provisions of Section 27 of the Specific Relief Act and regarding the defendants as persons whose title might have been displaced by defendants Nos. 1 and 2. In this view, the decree of the lower Appellate Court is unobjectionable.

(3.) The second appeal fails and is dismissed with costs. Ananthakrishna Aiyar, J.