Kassiammal v. Mr Sulthan Mohideen — 1996 DIGILAW 1082 (MAD)

Judgment : .1. The defendant in O.S.No.390 of 1991 on the file of the I Additional District Munsif, Pondicherry is the appellant herein. The Plaintiff, the respondent herein filed the suit for ejectment on the ground that the lease period had expired and the defendant failed to pay the rent from October 1989. The defendant filed R.C.O.P.No.41 of 1990 before the Rent Controller, Pondicherry seeking permission to deposit the rent before the Court. The petition was dismissed. Inspite of the dismissal, the defendant did not pay the rent to the plaintiff and hence she is liable to be evicted. The plaintiff claimed title to the property through his father. 2. The defendant filed written Statement contesting the claim of the plaintiff on the ground that the defendant had been paying the rent to the plaintiff’s father and recently she came to know that the plaintiff is not the owner of the suit property and therefore she did not pay the rent to the plaintiff. The defendant had set-up title in favour of one Muslim Darga. As the Plaintiff has no title to the suit property, the plaintiff cannot maintain the suit. Further, it seems that a plea has been raised on behalf of the defendant that she is entitled to the benefit of Section 4 of the Pondicherry Nonagricultural Kudiyiruppudars (Stay of Eviction Proceedings) Act 1980. 3. The trial Court, after elaborately considering the evidence let in by both the sides has decreed the suit finding that the plaintiff is the owner of the property and the defendant has filed to pay the rent. Further the tenancy has been terminated legally. In fact, the trial court has taken into consideration of the conduct of the defendant in filing the R.C.O.P.No.41 of 1990 seeking permission to deposit the rent and also the admission made by the defendant that she entered into a tenancy agreement with the plaintiff’s father and only pursuant to that she is in possession of the suit property. When once she admits the tenancy with the father of the plaintiff, naturally, after the father of the plaintiff, she has to be considered as a tenant under the plaintiff, as the property devolves on him. Since the defendant has denied the title of the plaintiff, she will not be entitled for the benefit of Pondicherry Act 2 of 1981 referred to above. Since the defendant has denied the title of the plaintiff, she will not be entitled for the benefit of Pondicherry Act 2 of 1981 referred to above. Aggrieved by the the Judgment and decree dated 24. 1992 of the trial Court, the defendant filed an appeal in A.S.No.49 of 1996 on the file of the Additional Sub-Court, Pondicherry. Learned Subordinate Judge also concurred with the finding of the trial Court and dismissed the appeal by its judgment and decree dated 30.4.1996. As against this, the present Second Appeal has been filed. .4. Mr.Lakshminarayanan, Counsel for the appellant contended that since both the courts below have categorically found that the defendant is a lessee under the plaintiff and earlier under his father, the lower courts ought to have granted the benefit under Section 4 of the Pondicherry Non-agricultural Kudiyiruppudars (Stay of Eviction Proceedings) Act 1980. As per the provisions of the said Act, the suit itself would not lie and as such the suit ought to have been dismissed. The conduct of the defendant in filing other applications as well as the denial of the title of the plaintiff will not take away the statutory benefit conferred on her under the Pondicherry Act 2 of 1981. 5. I carefully considered the contention of the counsel for the appellant. Section 4 of the Act 2 of 1981 bars the filing of the suit or execution of any decree for eviction of a nonagricultural Kudiyiruppudar from his homestead. It has to be seen that whether the appellant is entitled for such benefit. When once the appellant had denied the title of the landlord under the clause III (g) of the Transfer of Property Act, the relationship of the landlord and tenancy comes to an end. When the landlord and tenancy relationship comes to an end, then there is no question of the defendant claiming any benefit under the Act 2 of 1981. Only if the defendant had admitted that she is a tenant under the Plaintiff, then only the benefits under the said Act can be extended to the defendant. Admittedly in this case, the defendant had denied the title of the plaintiff and as such by forfeiture she lost her right to claim any benefit under the Act 2 of 1981. Only if the defendant had admitted that she is a tenant under the Plaintiff, then only the benefits under the said Act can be extended to the defendant. Admittedly in this case, the defendant had denied the title of the plaintiff and as such by forfeiture she lost her right to claim any benefit under the Act 2 of 1981. Since both the courts below have elaborately discussed with regard to the conduct of the defendant in denying the title, I am not proposed to repeat the samething in this Judgment. 6. When once the landlord and tenant relationship comes to an end, it may not be open to the appellant herein to contend that in spite of her conduct she will be entitled for the benefit under the Act 2 of 1981. No party can be allowed to approbate and reprobate. Once the landlords title is denied, merely because on the basis of the finding rendered by the court that the defendant is in possession of the property as a lessee under the Plaintiff, the defendant cannot get any benefit under the Act. 7. The Pondicherry Non-agricultural Kudiyiruppudars (Stay of Eviction Proceedings) Act had been enacted to give benefit to these non-agriculturist who has neither a homestead nor any land exceeding in extent 120 square metres in any municipality or 200 square metres in any commune panchayat either as owner or as tenant in possession on which he could erect a dwelling house, but has been permitted by a person in lawful possession of any land to have to use and occupation of a portion of such land for the purpose of erecting a homestead with or without an obligation to pay rent. Sectin 2 (c) of the said act runs as follows:- "non-agricultural Kudiyiruppudar" means a non-agriculturist who has neither a homestead, nor any land exceeding in extent 120 square metres in any Municipality or 200 square metres in any commune panchayat either as owner or as tenant in possession on which he could erect a dwelling house, but has been permitted by a person in lawful possession of any land- .(i) to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or .(ii) to occupy a hut belonging to such person and situate in the said land with or without an obligation to pay rent." The above provision makes it very clear that the non-agricultural Kudiyiruppudar should have been permitted by a person in lawful possession of any land. In this case though the appellant claims to have been entered into a lease with the father of the respondent, subsequently he denied the title of the respondent. So long as the appellant admits the title of the respondent, he can be considered to be a person permitted by the respondent to be in lawful possession. Once he denied the title of the respondent, his possession becomes unlawful and as such he may not be entitled to have the benefit of Section 4 of the said Act. 8. I am fortified in my view by drawing support from a recent decision of this Court reported in V.Raju v. Angammal, 1995 (1) L.W.620 in which it has been held as follows: "...The appellant having denied categorically the title of the plaintiff to the suit property, he is not entitled to claim the benefits of the City Tenants Protection Act and consequently, there is no question of the suit being invalid for want of notice under Section 11 of the act. I have considered the question of denial of title disentitling the person concerned to the benefits in Subborayan v. Devasdoss Nadar ; 1991 (2) L.W. 355 . I have held that when there is a denial of title, the person who has denied the title of the landlord cannot claim the benefits of the enactment. The view was accepted and followed by Abdul Hadi, J. in his judgment in The Idols of Sri Mamudisami and Sri Perumal, Anandapuram, Varagoneri, Tiruchi, rep. I have held that when there is a denial of title, the person who has denied the title of the landlord cannot claim the benefits of the enactment. The view was accepted and followed by Abdul Hadi, J. in his judgment in The Idols of Sri Mamudisami and Sri Perumal, Anandapuram, Varagoneri, Tiruchi, rep. by their hereditrary trustees Vijayaraghavan v. Avilammal Ammal (S.A.No.75 of 1982 & C.R.P.No.272 of 1982 dated 30.6.1991). The learned Judge has held that in view of the denial of title, no notice under Section 11 of the Act was necessary." 9. More over, Section 2 (d) of the Act runs as follows: "non-agriculturist" means a person who is not an agriculturist or agricultural labourer and whose annual aggregate income does not exceed Rs.2,400 This provision contemplates the annual aggregate income limit to have the benefit of the said Act. A persons annual aggregate income should not exceed Rs.2,400/- Both the courts below have categorically found that the appellant has not let in any evidence to establish that her income is less than the statutory limit as prescribed under Section 2(d) of the said Act. In fact, the lower appellate court has found that the column with regard to the income is left blank which means the appellant do not want to commit herself in respect of her annual aggregate income in the written statement. 10. Hence, considering every aspect of the matter, there is no merit in the appeal and the same is dismissed.