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2012 DIGILAW 254 (MAD)

Pravin Kaanth v. S. Balasubramanian

2012-01-12

R.S.RAMANATHAN

body2012
Judgment :- 1. Tenant is the Revision Petitioner. 2. The respondents / land lords filed R.C.O.P.No.277 of 2010 on the file of the XVI Small Causes Court, Chennai for eviction on the ground of willful default in payment of monthly rent from April 2007 to till date, using the petition promises for the purpose other than for which it was leased out. 3. The case of the landlords is that the Revision Petitioner became the tenant under a Rental Agreement dated 20.08.2006 and the monthly rent was fixed as Rs.9,000/-and an advance amount of Rs.80,000/-was paid by the Revision Petitioner. The Revision Petitioner failed to pay the rent from September 2006 onwards and committed default in payment of rent. 4. The Tenant/Revision Petitioner contested the said petition stating that there is no relationship of landlords and tenant between the parties and he entered into an agreement of sale with the landlords and paid an advance of Rs.80,000/- and the total consideration was fixed at Rs.3,51,000/-and therefore, the petition for eviction under the Rent Control Act is not maintainable and the tenant is in possession of the property as part performance of agreement of sale. Thereafter, the landlords / respondents filed a petition under Section 11 (3) of the Tamil Nadu Building Rent Control Act in M.P.No.401 of 2010 seeking for a direction to the Revision Petitioner to deposit a sum of Rs.3,51,000/- to the credit of the RCOP.No.277 of 2010, representing the arrears of rent from April 2007 to June 2010 and that application was also contested by the Revision Petitioner reiterating the same stand taken in the counter. 5. The Rent Controller allowed the said petition and directed the Revision Petitioner to pay the arrears of rent from April 2007 to August 2011 at the rate of Rs.9,000/-per month on or before 17.10.2011 failing which all further proceedings will be stopped in the main R.C.O.P. Aggrieved by the same, the Revision Petitioner has filed RCA.No.582 of 2011 to set aside the order made in M.P.No.401 of 2010 on the file of XVI Small Cause Court. In the said appeal, he filed M.P.No.754 of 2011 to stay the order of payment of arrears of rent. The learned Rent Control Appellate Authority modified the order directing the Revision Petitioner to deposit a sum of Rs.1,75,000/-on or before 23.11.2011 and this order is under challenge in this revision. 6. In the said appeal, he filed M.P.No.754 of 2011 to stay the order of payment of arrears of rent. The learned Rent Control Appellate Authority modified the order directing the Revision Petitioner to deposit a sum of Rs.1,75,000/-on or before 23.11.2011 and this order is under challenge in this revision. 6. It is submitted by the learned counsel for the revision Petitioner that the landlords relied upon a rental agreement Ex.P1 to prove his tenancy, which was a forged one and he has got proof to show that there is no relationship of landlords and tenant between the parties. He further submitted that he entered into an agreement of sale with the landlords and paid an advance sum of Rs.80,000/-and the balance sale consideration has to be paid and the landlords are living in abroad, so he is not able to pay the balance of sale consideration and he is always ready and willing to pay the balance sale consideration and he was put in possession of the property in part performance of the agreement of sale and therefore, there is no relationship of landlords and tenant between the parties. In support of his contention, he relied upon a judgment in R.Kanthimathi and other Vs. Mrs.Beatrice Xavier, reported in AIR 2003 Supreme Court 4149. 7. I am unable to accept the contention of the learned counsel for the revision petitioner. Admittedly the agreement of sale relied upon by the revision petitioner is oral. Under Section 53 A of the Transfer of Property Act, a person cannot claim to be in possession of the property as part performance of an oral contract of sale. Further when the tenant entered into an agreement of sale with the landlords, the mere entering into an agreement of sale, will not sever the relationship between the parties unless the tenant has done something pursuant to the agreement of sale or changed his position. The agreement of sale is oral. Therefore, there is no question of part performance and therefore, the case of the Revision Petitioner that he was put in possession of the property in part performance of the oral contract of sale cannot be accepted. The agreement of sale is oral. Therefore, there is no question of part performance and therefore, the case of the Revision Petitioner that he was put in possession of the property in part performance of the oral contract of sale cannot be accepted. According to me, the learned Rent Controller has directed the revision petitioner to deposit the entire arrears of rent and for the reasons best know to him, the learned Rent Control Appellate Authority modified the order by reducing the amount to be deposited and directed the revision petitioner to deposit a sum of Rs.1,75,000/-. 8. I do not find any reason to interfere with the said order. The decision of Supreme Court in R.Kanthimathi and other Vs. Mrs.Beatrice Xavier, reported in AIR 2003 page 4149 also cannot be made applicable to the facts of the present case, inasmuch as, the agreement of sale put forward in this case is only oral and there is no pleading that after the agreement of sale, the tenant has done something to establish his possession or altered his position. 9. With the above observation, this Revision Petition is dismissed. The Revision Petitioner is granted time up to 29.02.2012 to comply with the order passed in M.P.No.754 of 2011 in RCA.No.582 of 2011 on the file of VIII Small Cause Court, Chennai.