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2010 DIGILAW 1780 (MAD)

Vasantha v. C. Ramachandran

2010-04-15

M.CHOCKALINGAM, T.RAJA

body2010
Judgment :- (Order of the Court was made by M.CHOCKALINGAM, J.) 1. This review application has been brought forth seeking review of the judgment of this Court made in O.S.A.No.28 of 2009 whereby the Court by a judgment in O.S.A.Nos.28 and 55 of 2009 made an order of dismissal of O.S.A.No.28/2009 confirming the judgment in C.S.No.255 of 2006 seeking delivery of possession of the plaint mentioned property. 2. Advancing arguments on behalf of the petitioner, the learned Senior Counsel Mrs.Nalini Chidambaram would submit that the respondents were in possession of the premises having an extent of 1140 sq. ft. in No.40, South Mada Street, Mylapore, Chennai, in their capacity as agreement holders; that there was no pleadings and no evidence oral or documentary to prove in what capacity they initially took possession and continued to be in possession of the same; that no person can claim any relief without any pleadings; that the plea that they enjoyed the status of tenants was neither taken nor proved by them; that it is stated in the plaint that the respondents are neither lessees nor licensees; that except a vague denial of the said averment, the respondents did not plead that they are tenants; that the fact whether the respondents are tenants was exclusively within their knowledge; that if the petitioner has to resort to eviction proceedings, then she has to file details of the terms of the lease of the premises between the respondents and the owners including the rents being paid by the respondents; that no evidence was given as to the quantum of rent paid by the respondents to the erstwhile owners or to the petitioner; that the petitioner has not been receiving rent from the respondents since the parties did not claim the jural relationship of landlord and tenant; that it is pertinent to note that no tenancy agreement has been marked as a document in the suit; that under the circumstances, no RCOP can be filed by the petitioner for eviction of the respondents; that since the status of the respondents is not that of a tenant, but they are in possession as agreement holders, no evidence was given by the respondents on this aspect, and hence the judgment suffers from errors apparent and it has got to be reviewed. 3. 3. In answer to the above, the learned Senior Counsel Mr.S.V.Jayaraman for the respondents would submit that the reasons adduced by this Court in paragraph 17 of the judgment would suffice, and hence the review application has got to be dismissed. 4. This Court paid its anxious consideration on the submissions made. 5. Admittedly, the suit C.S.No.255 of 2006 was filed for recovery of possession of an extent of 1140 sq. ft. in the house, ground and premises bearing door No.40, South Mada Street, Mylapore, Chennai 4, from the hands of the defendants therein along with the consequential relief of permanent injunction. The suit was contested by the defendants. The trial Court while framing five issues has specifically raised an issue namely Issue No.4 whether the plaintiff is entitled to the relief of delivery of possession of the suit property. The said suit C.S.No.255/2006 was taken up for trial along with C.S.No.251 of 1998, a suit for specific performance. On trial, both the suits were dismissed. Aggrieved over the same, the respective plaintiffs brought forth their appeals which were taken on file as O.S.A.Nos.28 and 55 of 2009. On enquiry of those appeals, this Court gave a common judgment dismissing both the suits whereby the judgment of the trial Court was affirmed. The appellant in O.S.A.No.28/2009 who was the plaintiff in C.S.No.255/2006, seeking recovery of possession of the plaint mentioned property, has brought forth this review application. 6. This Court by its judgment which is sought to be reviewed has answered the question whether the plaintiff was entitled for recovery of possession of the suit property in paragraph 17, which reads as follows: "17. As far as the relief of recovery of possession sought for by the second defendant in C.S.No.255 of 2006 is concerned, this Court is unable to agree with the contentions put forth by the appellant/second defendants side. It is not in controversy that the plaintiffs 1 and 2 who entered into agreements for sale with the original owners Mayeem Ahmed and others, have been tenants in the property for residential and non-residential purposes. When the agreements dated 24.9.1995, were in force, the plaintiffs have entered into an agreement with the first defendant who is the husband of the second defendant, and the second defendant has purchased the property. When the agreements dated 24.9.1995, were in force, the plaintiffs have entered into an agreement with the first defendant who is the husband of the second defendant, and the second defendant has purchased the property. The first defendant in the capacity as the power of attorney has executed a sale deed in favour of his wife in respect of the suit property. Under the circumstances, the defendants cannot plead that they did not know that the plaintiffs were tenants in the property, and hence the averments made by the second defendant in her plaint that the plaintiffs wee trespassers has got to be rejected. That apart, the occupation of the suit property by the plaintiffs could not be termed as unlawful or illegal. Under Ex.D6 letter, the defendants have categorically admitted that the plaintiffs were in occupation as tenants, and hence they made a demand to vacate and deliver possession within a period of two months from the date of receipt of Ex.D6. This would also clearly indicate that the defendants have treated the plaintiffs as tenants. The plaintiffs who were in occupation of the property as tenants of the original owners, would continue to be tenants, and their status as tenants would not be lost by the mere purchase of the property by the second defendant from the original owners. The available evidence would clearly indicate that the second defendant had not only the knowledge, but also treated the plaintiffs as tenants. Under such circumstances, the defendants cannot be permitted to state that the plaintiffs were either trespassers or under illegal possession. Hence the learned Single Judge was perfectly correct in rejecting the said contention. However, it is open to the second defendant to take appropriate proceedings in accordance with law for eviction and other reliefs if so advised." 7. The above finding recorded by the Court is now sought to be reviewed by the petitioner. 8. After hearing the submissions made on either side and looking into the materials available, this Court is of the considered opinion that it is a fit case where the judgment of this Court has got to be reviewed, and the relief of delivery of possession has got to be ordered for the following reasons. 9. The plaintiff who sought the relief of recovery of possession has specifically pleaded in paragraph 10 of the plaint as follows: "10. 9. The plaintiff who sought the relief of recovery of possession has specifically pleaded in paragraph 10 of the plaint as follows: "10. The plaintiff further submits that she is the absolute owner of the properties at No.40, South Mada Street, Mylapore, Chennai 600 004, and the defendants are neither tenants nor licensees in respect of the said extent and their possession is illegal and they are liable to deliver vacant possession of the said extent...." 10. The above averment in the plaint is denied by the defendants in the written statement in paragraph 7 which reads as follows: "7) As regards the allegations contained in paragraph 10 of the plaint these defendants deny the allegation that their possession is illegal and they are liable to deliver vacant possession. In fact, the plaintiff knew that defendants are in possession of the suit property and that is one of the reasons why they wanted to retain the suit property while entering into the agreement and the plaintiff is bound by the said agreement. The defendants state that the demand of Corporation to demolish is a collusive action and there is no danger etc., as alleged. Equally incorrect is the allegation that the property is in a ruinous state." 11. While it was specifically averred in the plaint that the defendants were neither tenants nor licensees in respect of the suit property, the defendants did not come with any specific averment denying the same, but were evasively denying the allegation that their possession was illegal. It is pertinent to point out on what capacity they are in possession of the suit property. Relying on a reply notice by the second defendant in C.S.No.251/98 and also her husband, marked as Ex.D6, it was urged by the respondents that the defendants were treated as tenants all along. This Court in its judgment which is sought to be reviewed accepting the above contention of the respondents has denied the relief. 12. It is noticed that the mistake that has crept in in the reply notice Ex.D6, cannot be a reason to deny the relief of delivery of possession since in the instant case in order to substantiate the landlord and tenant relationship, neither an agreement oral or written, was relied nor any fixation or payment of rental was made at any point of time. The specific pleadings in the plaint that the defendants were neither tenants nor licensees was not specifically denied in the written statement, and thus the mere knowledge of the possession of the defendants in the property or a mistaken version in the reply notice calling the defendants as tenants would not suffice to deny the relief in the absence of necessary pleadings or proof as to the landlord and tenant relationship. In view of the same, the possession of the defendants was an illegal one. While the plaintiff was able to plead and prove the same, the defendants were unable to show that their possession was lawful or on the strength of tenancy. 13. It is not in controversy that the part of the property in the possession of the defendants was actually purchased by the plaintiff/appellant and she has become the owner. It remains to be stated that while denying the relief, this Court has observed that the second defendant can take appropriate proceedings in accordance with law for eviction. As rightly pointed out by the learned Senior Counsel for the petitioner, in the absence of any proof with regard to the landlord and tenant relationship or payment of rental, no eviction proceedings could be initiated before the Rent Controller, and if not the relief of delivery of possession is granted, the plaintiff/appellant will be without any remedy whatsoever apart from keeping it open for multiplicity of proceedings which could be avoided now itself. Hence applying the principles of evidence, it is a fit case where the judgment has got to be reviewed and delivery be ordered. That apart, this error occurred in the earlier judgment is noticed by the Court on the face of the record which would warrant for review of the judgment by setting aside the same and ordering delivery of possession by allowing O.S.A.No.28 of 2009. 14. In the result, this review application is ordered. O.S.A.No.28 of 2009 is allowed, and C.S.No.255 of 2006 is decreed. The respondents/defendants are directed to deliver possession within a period of three months herefrom. The parties are directed to bear their costs.