M.N.K.R Nagappa And 4 Others Petitioners v. L. Nagappan

1. The petitioners/the decree holders in O.S No. 93 of 1977 on the file of the District Munsif, Devakottai. The petitioners filed the said suit seeking for eviction of the respondent and the said suit was decreed ex parte on 10.4.80 The respondent filed an application for setting aside the ex parte decree which was dismissed on 16.2.87 As against this, the respondent preferred an appeal in C.M.A No. 1 1 of 1987 on the file of Sub-Court, Devakkottai and the same ended in dismissal by judgment and decree dated 21.3.90 Thereafter the petitioners filed E.P No. 104 of 1990 seeking for recovery of possession. That was dismissed on 24.10.90 Thereafter the present execution petition has been filed.

2. The respondent herein contested the E.P on the ground that since the earlier E.P was dismissed on the ground that the petitioners did not deposit the value of the superstructure, which the respondent is entitled to by way of compensation, within the stipulated period of three months, the second execution petition is barred. Further the respondent had stated that the petitioners ought to have deposited the compensation amount within three months from the date of decree of the trial court as per Section 4(1) of the City Tenants Protection Act and since the same has not been complied with, the execution petition is liable to be dismissed. The court has no power to extend the time prescribed under the statute. No evidence has been let in by both the parties. The executing court had dismissed the execution petition on the ground that the petitioners failed to comply with the statutory requirement of Section 4(1) of the City Tenants Protection Act and as such the result would follow as per Section 4(4) of the said Act. As against this, the present revision has been filed. But, however, the executing court has held that the present execution petition is maintainable.

3. The learned counsel for the petitioners contended that the decree does not specify any time limit for the deposit of the compensation amount and in the absence of any stipulation in the decree, the petitioners waited to deposit the amount in view of the pendency of the proceedings initiated by the respondent for setting aside the exparte decree. When the appeal preferred by the respondent was dismissed on 21.3.90 subsequently the decree was corrected on 1.4.91 The amount had been deposited after the decree was corrected. The amount had been deposited on 17.6.91 within three months from the date of the amendment of the decree and as such the petitioners had deposited the amount in strict compliance of the statutory provisions. Hence the order of the lower court is not correct.

4. On the contrary, the counsel for the respondent contended that the ex parte decree was passed as early as 10.4.80 The petitioners ought to have deposited the amount within three months from the date of the decree, which is the statutory requirement and since the petitioners did not comply with the same the execution petition was rightly dismissed.

5. I carefully considered the order of the executing court. The printed copy of the judgment was produced. I find from the printed copy of the judgment of the trial court that O.S Nos. 89 to 94 of 1977 and O.P Nos. 4 and 5 of 1977 had been disposed of by the common judgment dated 18.4.78 From the judgment, I find that the respondent had not claimed any benefit under Section 9 of the City Tenants Protection Act. Only two persons, who are the defendants in O.S No. 89 of 1977 and O.S No. 94 of 1977 had claimed such benefit. But, however, in the concluding portion of the judgment, so far as this respondent is concerned, who is the defendant in O.S No. 93 of 1977, the court below had given the finding as follows:

“In the result, the plaintiffs are given a decree ordering the defendant to deliver possession of the suit property to the 2nd plaintiff on payment of value of the superstructure put up by the defendant and the plaintiffs are entitled to a sum of Rs. 100 being the arrears of rent and damages for use and occupation from 1.2.1975 to 28.2.1977 with subsequent interest. The future damages for use and occupation will be decided separately. The value of the superstructure is to be decided in the execution proceedings.”

When the respondent did not claim any benefit under the City Tenants Protection Act, the compensation awarded for the superstructure cannot be considered to be one under the City Tenants Protection Act. The provision of the said Act can be made applicable only if the parties to the proceedings had invoked the same. The respondent did not claim any benefit.

6. Even apart from that from the pleadings in the written statement, as extracted in paragraph 28 of the trial court judgment dated 18.4.78, the respondent had virtually denied the title of the petitioners and also denied the relationship of landlord and tenant. But, however, he has stated that in case if it is found that the plaintiffs are entitled to the property, the defendant is willing to purchase the property for the market value. Once the tenant denies the title of the landlord, automatically their relationship of landlord and tenant comes to an end by virtue of Section 1 1(g) of the Transfer of Property Act.

7. In the judgment reported in Boologanathan v. P. Govindarajan, 1979 (II) MLJ 47 it has been held as follows:

“If once a tenant openly denies the title of lessor or pleads jus tertii, then it automatically follows that he would not be considered as a tenant for any purpose whatsoever, as under Section 111 (g) of the Transfer of Property Act, by such open denial of title or by pleading jus tertii there is a forfeiture of the tenancy and the relationship of landlord and tenant is snapped thereby. The fact that he remains in possession of the premises and pays, what according to him, is rent or is prepared or willing to pay such rent, could only, in the circumstances, be understood as money paid towards damages for use and occupation Judicial possession, therefore, is the essence for the creation of the relationship of landlord and tenant. Once there is a snapping of the relationship by a voluntary Act of omission or commission on the part of the person in occupation as tenant then, he cannot inconsistently claim such a legal status under any provision of law. A Division Bench of this Court in Veerasami Naicker v. Alamelu Ammal, 1965 (2) MLJ 188 held that where a person, who continues to be in possession after the termination of the tenancy, claims that he does so, as he is entitled to the property as his own it is obvious that there is hardly any room for such an owner to seek protection of his possession under the provisions of the Act. Clearly the Act is not intended to protect such owners, for, there is no need for it. The argument of the learned counsel for the petitioner, however, is that he satisfied the definition of ‘tenant’ within the meaning of section 2(4)(i) of the Act. The sub-clause reads as under-

“Tenant in relation to any land means a person liable to pay rent in respect of such land under a tenancy agreement, express or implied.”

Admittedly, there is no express agreement in this case; nor it set up by the petitioner who is only a legatee of the quondam tenant. But, what is urged is that there is an implied tenancy because he is ready and willing to pay the rent to the respondents. It is said that such a gesture on his part would create the legal relationship of landlord and tenant as between the respondents and himself. This would be begging the question for the simple reason that a person cannot approbate. Once the quondam tenant took up the position that the respondents are not the true owners of the property and this necessitated the respondents to file an independent suit as has been the position in this case and during the course of the proceedings the petitioner substitutes himself in the place of the quondam tenant as the legatee of him under the Will Exhibit A-2, he cannot be heard to say that there is an implied tenancy created by his having acquired the status of a legatee. Only if there is such a status it would be an indicia to decide as to his statutory entitlement under the Act. It is in this respect, I characterised the contention as begging the question. Once it is established that the tenant and in this case the petitioner or the quondam tenant did take up the stand that the respondents are not the real owners of the property, then there is a denial of title. Once there is such a denial of title, any relationship of landlord and tenant automatically gets severed. This severance is caused because of the presumption which arises under Section 111(g) of the Transfer of Property Act, which forfeits the lease by reason of such denial of title. Forfeiture of lease, therefore (sic) does not buttress any such relationship of landlord and tenant even if it existed. Whilst not agreeing with the learned counsel for the petitioner that there is implied tenancy in the instant case, I hold that even if such an implied tenancy were there, he cannot take advantage of the statutory benefits under the Act, since he or the quondam tenant persisted in denying the title of the landlord and thereby caused the attraction of the principle contained in section 111 (g) of the Transfer of Property Act. The lower court was, therefore, right in having denied the statutory entitlement to the petitioner on the ground that he denied the landlord's title and that Division Bench judgment compelled it to dismiss his application under section 9, I agree with the conclusion as I am obliged to follow the decision of the Division Bench also.”

8. In a recent judgment reported in Ramalinga Chettiar v. Srinivasa Chettiar, 1996 (2) L.W 612 it has been held as follows:

“In para 4 of the Memorandum of grounds the appellant/defendant stated that “whether the possession of the additional documents filed in the above second appeal by way of additional evidence, the plaintiff has a right to institute the suit in his name.” When the defendant/appellant has not filed a petition under Section 9 of the Tamil Nadu City Tenants Protection Act within 30 days from the date of receipt of summons in the suit, the tenant/defendant is not entitled to claim the benefit under the said Act under Sec. 9. Therefore, the claim of the benefit under Sec. 9 of the Tamil Nadu City Tenants Protection Act cannot be taken into consideration in this second appeal.”

9. On the above said principles, it is clear that the respondent had forfeited his right of any claim of compensation for the superstructure, as provided under the City Tenants Protection Act. When the respondent did not claim any compensation by invoking Section 9 of the City Tenants Protection Act and also having forfeited such right by virtue of the denial of the landlord and tenant relationship, the compensation granted under the judgment of the lower court cannot be said to be one under the provisions of the City Tenants Protection Act. Perhaps that may be the reason why the decree does not stipulated the three months period as prescribed under Section 4(1) of the City Tenants Protection Act, The compensation awarded under the judgment has to be construed as one outside the purview of the Act. When once the compensation decreed by the lower court is outside the purview of the Act, then it is open to the petitioner to deposit the amount as long as the period of limitation is in force to execute the decree; especially when the decree do not provide any period to deposit the amount. In such circumstances, the respondent is not entitled to take any objection by invoking the provisions of either Section 4(1) or 4(4) of the City Tenants Protection Act and the lower court also is not correct in entertaining such objection and deprived the right of the decree holder by upholding the objection raised by the respondent.

10. In view of the reasoning given by me above, the order of the lower court cannot be sustained and the civil revision petition is allowed. Four weeks time is granted to the respondent to deliver vacant possession to the petitioners in accordance with the decree of the trial court which is under execution.

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