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2006 DIGILAW 680 (AP)

KYATHUR CHAKALI CHINNAKKA v. NOORJAHAN BEGUM

2006-06-19

C.Y.SOMAYAJULU

body2006
( 1 ) DEFENDANT in a suit for declaration of title and possession preferred this appeal. For the sake of convenience parties to the appeal would hereinafter be referred to as they are arrayed in the trial Court. ( 2 ) THE case of the plaintiff, in brief, is that she purchased the plaint schedule property from Kyrunnisa Begum under a registered sale deed dated 17-12-1979 for Rs. 20,000/- and as the defendant, who was a tenant of her vendor in respect of the plaint schedule property, attorned to her and had failed to pay the rents due, she filed O. S. No. 482 of 1980 for recovery of possession of the plaint schedule property from the defendant, in which the defendant took a plea that she is in possession of the plaint schedule property in pursuance of an agreement of sale in her favour executed by kyrunnisa Begum and her husband and so she cannot be evicted there from that too in a suit where the declaration of the title to the plaint schedule property is not sought and the Court, accepting the said contention and holding that the suit for recovery of possession without claiming the relief of declaration of title is not maintainable, dismissed the suit, questioning which she preferred advised to file a separate suit for declaration of her title to and recovery of possession of the plaint schedule property, she withdrew the appeal and filed the present suit for declaration of her title to the plaint schedule property and for recovery of possession thereof from the defendant. ( 3 ) THE case in brief of the defendant is that the plaintiff in collusion with the sons of Kyrunnisa Begum and Mehaboob Baig, who owned the plaint schedule property, and also Y. Narayana setty and Syed Hussain brought into existence of the sale deed relied on by her to get over the agreement of sale dated 24-11-1972 executed by Kyrunnisa Begum and her husband in her favour in respect of the plaint schedule property. In view thereof, plaintiff does not have title to the plaint schedule property. The judgment in O. S. No. 482 of 1930 operates as res judicata. Since the plaintiff withdrew A. S. No. 43 of 1984 without seeking leave of the Court to file a fresh suit, this suit is not maintainable. In view thereof, plaintiff does not have title to the plaint schedule property. The judgment in O. S. No. 482 of 1930 operates as res judicata. Since the plaintiff withdrew A. S. No. 43 of 1984 without seeking leave of the Court to file a fresh suit, this suit is not maintainable. In any event since she is entitled to the benefits of Section 53-A of transfer of Property Act, plaintiff cannot seek her eviction and in any event since the suit is barred by the provisions of a. P. (Buildings, Lease and Eviction) Control Act, 1960 (Rent Control act), Plaintiff is not entitled to any relief. ( 4 ) PLAINTIFF filed a rejoinder contending that the provisions of the Rent Control Act do not apply to the facts of the case and her withdrawing AS No. 43 of 1984 without leave of the Court has no bearing on this suit. ( 5 ) BASING on the pleadings, the trial Court framed as many as nine issues for trial. In support of her case, plaintiff examined herself as P W1 and three other witnesses as P. Ws 2 to 4 and marked Exs. Al to A28. In support of her case, defendant examined herself as DW1 and two other witnesses as D. Ws 2 and 3 and marked Exs. B1 to B25. The trial Court negatived the contentions of the defendant and decreed the suit. Hence this appeal. ( 6 ) THE points for considerations are 1) Whether the defendant is entitled to protection under section 53-A of the Transfer of Property Act? 2) Whether the suit is barred under Order 2 Rule 2 of Code of Civil Procedure? ( 7 ) RAMBHAU Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) 8 Supreme Court Cases 614 is relied on by the learned counsel for the defendant in support of the contention that defendant is entitled to the benefits of Section 53-A of Transfer of Property Act. The facts of that case are entirely different from the facts in this case. So the said decision has no application to the facts of this case. The facts in this case are simple. Even by the time plaintiff purchased the plaint schedule property from her vendor defendant was in possession thereof as a tenant. The case of the plaintiff is that defendant attorned to her after her purchasing the plaint schedule property under Ex. The facts in this case are simple. Even by the time plaintiff purchased the plaint schedule property from her vendor defendant was in possession thereof as a tenant. The case of the plaintiff is that defendant attorned to her after her purchasing the plaint schedule property under Ex. A1 dated 17-12-1979. The case of the defendant is that she entered into an agreement to purchase the plaint schedule property from her vendor on 22-07-1972 for Rs. 16,000/- and made some payment and subsequently the vendor executed another agreement of sale i. e. Ex. B7 in her favour and that she did not attorn to the plaintiff and as she is in possession of the plaint schedule property in part performance of the agreement in her favour, she is entitled for protection under Section 53-A of the Transfer of Property Act. Ex. B7 agreement of sale dated 24-11-1972 executed by the vendor of the plaintiff in favour of the defendant shows that the vendor of the plaintiff and her husband agreed to sell the plaint schedule property for Rs. 16,000/- to the defendant and that they had earlier executed an agreement in her favour on 22-07-1972 and that they received an amount of Rs. 8,900/- from her, and that on payment of the remaining amount of Rs. 7,100/- they would execute and register a sale deed in her favour, and except the mortgage executed by them in favour of Narayana Setty there are no other encumbrances over the plaint schedule property. ( 8 ) IN order to claim the benefit of Section 53-A of the Transfer of Property Act, defendant must establish that she took possession of the plaint schedule property in part performance of an agreement in her favour and has done some act in furtherance of the said agreement and that she is willing to perform her part of contract as per the agreement. As per Ex. B7 defendant still has to pay Rs. 7,100/- to her vendor. There is nothing on record to show that defendant tendered that amount to her vendor at any time subsequent to Ex. B7. Admittedly, plaintiff filed O. S. No. 482 of 1980 against the defendant, basing on Ex. A1, seeking her eviction on the ground that the defendant, after attorning to her, failed to pay the rents. 7,100/- to her vendor. There is nothing on record to show that defendant tendered that amount to her vendor at any time subsequent to Ex. B7. Admittedly, plaintiff filed O. S. No. 482 of 1980 against the defendant, basing on Ex. A1, seeking her eviction on the ground that the defendant, after attorning to her, failed to pay the rents. Even after the plaintiff filing the said suit, defendant did not take steps to enforce Ex. B7 by filing a suit for specific performance to show or establish that she is ready and willing to perform her part of contract as per Ex. B7. As rightly observed by the trial Court the defendant should be deemed to have knowledge about her vendor refusing to perform her part of the contract when she came to know that her vendor executed a sale deed in favour of the plaintiff. If not earlier, she definitely had knowledge about her vendor executing a sale deed in favour of the plaintiff when plaintiff filed O. S. N. 482 of 1980 seeking her eviction. After service of summons in O. S. No. 482 of 1980 also defendant did not take steps to enforce Ex. B7 by filing a suit for specific performance or by sending the amount due under Ex. B7 to her vendor. Except the interested evidence of the defendant as D. W1 there is no other evidence on record to establish that the defendant was having the balance sale consideration payable by her under Ex. B7 agreement and that she tendered it to her vendor or to the mortgagee referred to in Ex. B7. D. Ws2 and 3 are the attestors to Exs. B2 and B7 agreement. They did not speak anything about the readiness and willingness of the defendant to act as per the terms of those agreements. The evidence of the defendant as DW1 that she, her vendors husband and others went to Narayana Setty the mortgagee, to redeem the mortgage and that the mortgagee informed them that Rs. 18,000/- is due under the mortgage, cannot be true, because the said mortgage was discharged by the plaintiff, on 11-01-1980, by paying Rs. 12,000/- as seen from ex. A27 endorsement on the reverse of Ex. A2. So it is clear that defendant was not having the money due and payable by her under Ex. B7. 18,000/- is due under the mortgage, cannot be true, because the said mortgage was discharged by the plaintiff, on 11-01-1980, by paying Rs. 12,000/- as seen from ex. A27 endorsement on the reverse of Ex. A2. So it is clear that defendant was not having the money due and payable by her under Ex. B7. So it cannot be said that she was ready and willing to perform her part of the contract. The SINE QUA NON for claiming the benefit of Section 53-A of the Transfer of Property Act i. e. being ready and willing to perform the contract, is thus not established by the defendant, and so I hold that the defendant is not entitled to the protection under Section 53-A of the Transfer of property Act. The point is answered accordingly. ( 9 ) THE contention of the learned counsel for the defendant is that since plaintiff, before withdrawing AS No. 43 of 1984, did not obtain leave to file a fresh suit on the same cause of action and since the cause of action for filing of the present suit and the earlier suit is the same, this suit is barred under Order 2 Rule 2 cpc. The contention of the learned counsel for the plaintiff is that inasmuch as the cause of action for filing the earlier suit is different from the cause of action for filing of this suit, as the earlier suit O. S. No. 482 of 1980 was filed for recovery of possession on the basis that defendant i. e. the tenant not paying rents and since the defendant denied the title of the plaintiff in that suit, resulting in dismissal of that suit on the ground that relief of declaration of title is not sought. Order 2 Rule 2 is not a bar for filing this suit. He relied on Vallabh Das Vs. Dr. Madanlal and othersair 1970 Supreme Court 987 where the apex Court held that if the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit and on M/s. Bengal Waterproof limited Vs. M/s. Bombay Waterproof Manufacturing Company and another AIR 1997 Supreme Court 1398 where it is held that plea relating to bar under Order 2 rule 2 CPC cannot be entertained if the pleadings in the first suit are not placed on record. In reply, the contention of the learned counsel for the defendant is that inasmuch as the defendant produced the judgment in O. S. No. 482 of 1980 which contains the precis of pleadings, it cannot be said that the pleadings in the earlier suit are not placed on record. ( 10 ) IF on the same cause of action the plaintiff is entitled to several reliefs if he does not seek all the reliefs, Rule 2 of Order 2 cpc debars him from filing a fresh suit for the relief which he failed to claim in the earlier suit. So what is important to see whether Rule 2 of Order 2 CPC is a bar for bringing the second suit whether the cause of action for filing the second suit is the same as the cause of action for filing the previous suit. ( 11 ) ASSUMING that producing a certified copy of the judgment in o. S. No. 482 of 1980 (Ex. A24) tantamounts to filing of the pleadings in that suit, a reading of Ex. A24 shows that that suit was filed by the plaintiff seeking eviction of the defendant from the plaint schedule property alleging that the defendant who is a tenant of her vendor had, having attorned to her consequent upon her purchasing the said property under Ex. A1, is not paying rents or vacating the same. Had the plaintiff produced a certified copy of the decree in that suit it would have revealed if the suit was valued under Section 24 or Section 40 (2) of the A. P. Court Fees and Suits valuation Act, 1956 (Court Fees Act ). None of the parties filed copies of the decree of the former suit. The learned counsel for the defendant furnished a copy of the decree in the earlier suit for my perusal. It shows that the court fee was paid under Section 40 (2)of the Court fees Act, which relates to suits between the landlord and tenant. None of the parties filed copies of the decree of the former suit. The learned counsel for the defendant furnished a copy of the decree in the earlier suit for my perusal. It shows that the court fee was paid under Section 40 (2)of the Court fees Act, which relates to suits between the landlord and tenant. So it is clear that the earlier suit was filed on the basis of the relationship of landlord and tenant only and not on the basis of title. It is well known that in a suit filed, under Section 40 (2) of the Court fees Act title of the landlord need not be gone into or decided. Ex. A24 shows that defendant denied the relationship of landlord and tenant between plaintiff and herself and also the title of the plaintiff to the plaint schedule property, and took a plea that the plaintiff, without seeking declaration of her title to the plaint schedule property cannot seek her eviction there from. Ex. B1 shows that the plaintiff filed a petition seeking leave to amend the plaint by incorporating the relief of declaration of title to the plaint schedule property and that it was dismissed. ( 12 ) THE cause of action for filing this suit is the defendant denying the title of the plaintiff to the plaint schedule property. So it is clear that the cause of action for the earlier suit is different from the cause of action for filing of this suit. Therefore, even though plaintiff withdrew AS No. 43 of 1984 without seeking leave to file a fresh suiit, she cannot be non suited on the ground of her not obtaining leave from the Court to file a fresh suit and so I hold that this suit is not barred under Order 2 Rule 2 CPC. The point is answered accordingly. ( 13 ) SINCE the defendant is a mere holder of an agreement of sale, and since plajntiff admittedly has a sale deed in her favour, the title of the plaintiff prevails over the agreement of sale of the defendant. The remedy, if any, of the defendant, was to file a suit for specific performance of agreement of sale by impleading the plaintiff also as a party to that suit immediately after she receiving summons in O. S. No. 482 of 1980. The remedy, if any, of the defendant, was to file a suit for specific performance of agreement of sale by impleading the plaintiff also as a party to that suit immediately after she receiving summons in O. S. No. 482 of 1980. But she failed to file such a suit since limitation for filing of such a suit also expired, plaintiff is entitled to declaration of her title. As held above defendant is not entitled to the protection under Section 53-A of the Transfer of property Act. The contention of the defendant that in view of the provisions of Rent Control Act plaintiff is not entitled to seek relief of possession in a civil Court cannot be accepted because she had in the earlier suit not only denied the tenancy but also the title of the plaintiff to the plaint schedule property. She cannot approbate and reprobate. Having set up an agreement and having failed to establish that the relationship of landlord and tenant continued and having denied the title of the plaintiff to the plaint schedule property, defendant cannot say that plaintiff can seek her eviction only under the provisions of the Rent Control Act. So I find no merits in this appeal. Hence, the appeal is dismissed with costs. Defendant is given six weeks time from today to vacate the plaint schedule property.