Saroja Ammal and G. Krishnan vs Valliammal

Honourable Mr. Justice R. Karuppiah

The appellants/defendants have filed this Second Appeal as against the judgment and decree dated 25.06.1998 made in A.S. No. 16/1997, on

the file of the learned Principal Sub Judge, Madurai, confirming the judgment and decree, dated 29.11.1996, made in O.S. No. 298/1981, on the

file of the learned District Munsif, Madurai. The respondent/plaintiff has filed a suit seeking for the relief of declaration and recovery of possession

and past damages of Rs. 50/- per month from 12.12.1979 and also future damages at the rate of Rs. 50/- per month. Briefly, the case of the

respondent/plaintiff is that she purchased the suit property and other properties from one Ayyalu Naidu under a sale deed dated 22.08.1978 and it

is in possession of the appellants/defendants, as lessee from the plaintiff''s vendor viz., Ayyalu Naidu. It is further stated in the plaint that originally

the suit property was under lease to one Govindaraja Konar and he had sold the rice mill machineries and other accessories to the defendants in

January 1978 and these defendants thereafter attorned to the plaintiff''s vendor to then owner Ayyalu Naidu and was paying monthly rent of Rs.

50/-. A few days after the above said lease, the said Ayyalu Naidu borrowed a sum of Rs. 2000/- from the first defendant on 30.01.1978 and

executed a simple mortgage deed and also some arrangement between them, a sum of Rs. 40/- was adjusted towards interest due on the mortgage

and 1st defendant was paying Rs. 10/- towards rent for the suit building. In the sale deed executed by Ayyalu Naidu in favour of the plaintiff for a

sum of Rs. 19,000/-, the plaintiff, as vendee, was directed to redeem the mortgage debt to the first defendant for Rs. 2,000/-. Hence, the plaintiff

issued a notice to the first defendant to suffer redemption of mortgage and receive the amount and return the mortgage bond. Since the first

defendant refused to receive the amount, the plaintiff filed a suit for redemption of the said mortgage against the first defendant in O.S. No.

463/1979 in the Court of District Munsif, Madurai on 24.10.1979. Since the first defendant not contested the case, a preliminary decree was

passed on 23.04.1980.

It is further stated in the plaint that in the meantime, on 25.11.1979 and 23.02.1980, the plaintiff issued separate notices to the defendants

through her counsel and the defendants received the notices and sent reply through their counsel on 12.12.1979 and 09.04.1980 wherein the

defendants had deliberately and willfully denied the plaintiffs title to the suit property and had also falsely claimed as if there was an agreement

between them. It is further stated that the first defendant alone filed a suit for specific performance of the alleged agreement in O.S. No.

1079/1979 in the Court of Principal Subordinate Judge, Madurai. Therefore, the plaintiff issued a notice to the first defendant on 13.02.1980 to

vacate the premises removing the rice mill, as she had chosen to deny the plaintiff''s title.

According to the plaintiff the first defendant, as a lessee, is not entitled to any notice to quit u/s 106 of Transfer of Property Act, as she has

deliberately and willfully denied the plaintiff''s title of the suit property. Since a notice of forfeiture would be necessary, a notice of forfeiture and the

tenancy rights was sent to the first defendant on 23.02.1980 and she received on 25.03.1980 and sent reply on 09.04.1980 to the above said two

notices through counsel. Since the second defendant also a co-lessee along with the first defendant and as he had also denied the plaintiff''s title in

his reply dated 12.12.1979 a notice of forfeiture was issued to the second defendant also on 14.04.1980 and he had received on 17.04.1980. The

alleged agreement must have been brought about fraudulently in collusion with Ayyalu Naidu after purchase of the property by the plaintiff and the

said agreement is false. It is further stated that, since the defendants had denied the title of the plaintiff in the suit property, they have forfeited

tenancy rights and it has been indicated to them by proper notices. As they had also refused to attorn to the plaintiff, a notice to quit u/s 106 of

Transfer of Property Act, become unnecessary. Therefore, the respondent/plaintiff has filed this suit.

Both the defendants have filed written statement in which it is admitted that the defendants are lessee under vendor of the plaintiff and further

stated in the written statement that there was also a subsequent mortgage and latter the first defendant entered into an agreement for sale on

26.07.1978 under which the previous owner Ayyalu Naidu agreed to sell the property to the first defendant for Rs. 20,000/- and also received Rs.

800/- as advance. It is also averred in the written statement that Ayyalu Naidu with the active help and connivance of the plaintiff and her husband

appears to have brought a book about subsequent sale deed purporting on 22.08.1978 with ante-dated particulars to defeat the claims of the first

defendant and therefore, the first defendant filed a suit in O.S. No. 1079/1979 to enforce the agreement dated 26.07.1978.

The defendants had further stated in their written statement that the plaintiff has filed O.S. No. 463/1979 for redemption of the mortgage dated

30.03.1978. It is further averred that when the defendants are in agreement vendees and the plaintiff is not a bona fide purchaser, and therefore,

the defendants contested the above said suit. The plaintiff has fled another suit in O.S. No. 238/1980 for injunction to stop rice mill being run there

on, but the above suit is liable to be dismissed as barred under Order 2, Rule 2. The plaintiff has filed another suit in O.S. No. 935/1979 as against

Ayyalu Naidu and this defendant pleaded that it should be a collusive action. The defendants have further stated in the written statement that all the

notices issued by the plaintiff are in valid in law and no notice has been given confirming to the provisions of Transfer of Property Act and the

plaintiff is not entitled to any relief. It is further stated that the plaintiff cannot remove a rice mill without State Government permission and hence

and the suit is also barred by non-joinder of Government as a party. The defendants have also filed additional written statement and in which it is

stated the the plaintiff admitted that these defendants have been in possession and enjoyment of the suit property as lessee from the plaintiff''s

vendor Ayyalu Naidu and the rate of interest of rent was fixed at Rs. 50/- per month and the first defendant filed the Suit in O.S. No. 1079 for

specific performance of agreement and the present suit is filed long after O.S. No. 1079/1979 filed by the first defendant and it is not the case of

the defendants that the lease in favour of the defendants became seized to exist by execution of agreement to sell and also not the case of the

plaintiff that by means of alleged purchase the tenancy came to an end. It is further stated that the character of possession in none of the

proceedings of the suit property by the defendant was never in dispute and hence even assuming that the plaintiff has purchased the suit property, it

cannot and will not affect the lease hold right created and enjoyed by these defendants prior to the date of alleged purchase and further from the

plaintiff''s allegation, the defendants are entitled to the protection of Rent Control Act and cannot be evicted except under Provisions of Rent

Control Act and further trial Court has no jurisdiction and the defendants were always ready to pay the rent and therefore, the suit is not

maintainable.

On the side of the plaintiff has filed reply statement in which it is stated that the defendants were informed by the plaintiff of her purchase of the

suit property even long prior to the filing of the suit but the defendants failed to attorn to the plaintiff and in fact they denied the tenancy and also

title of the plaintiff to the suit property and therefore, issued notice for forfeiture of tenancy to the defendants and requested them to remove the rice

mill and vacated the premises and handed over the possession to the plaintiff. The defendants have also denied the allegation that the alleged

tenancy cannot and will not came into end under the law it is not admitted and as a fact, there is no tenancy relationship between the plaintiff and

the defendant and also denied the allegation that the suit property come within the definition of the Tamil Nadu Buildings (Lease and Rent Control)

Act, 1960. Further, the above said Act is not applicable to the Village, where the suit building was situated and further, they are not entitled to the

benefits of the Act, since they are denied the relationship of tenancy and title of the plaintiff even prior to filing of the suit and therefore, prayed for

decreeing the suit with exemplary costs.

The trial Court, considering the above said pleadings framed eight issues including two additional issues and the plaintiff herself deposed as P.W.

1 and marked 15 documents as Exs. A1 to A15 and on the side of the defendants, the second defendant had deposed as DW1 and marked 2

documents as Exs. B1 and B2 and after considering the oral and documentary evidence, the trial Court has decreed the suit.

Aggrieved over the same, both the defendants have preferred the first appeal in A.S. No. 16/1997 and the first appellate Court has dismissed

the appeal confirming the decree and judgment passed by the trial Court. Aggrieved over the above said concurrent findings of both the Courts,

both the defendants filed this Second Appeal.

this Court admitted the Second Appeal and framed the following Substantial Questions of Law for determination:-

Whether the Courts below were right in holding that the defendants had denied the title of the plaintiff to the suit property?

Whether the Courts below were in error in holding that no notice under Sec. 106 of Transfer of Property Act is necessary for determination of

the lease?

Whether the Courts below erred in ignoring the requirement of Sec.106

C.P.C. that six months notice is required for lease for manufacturing purposes?

The Learned Counsel for the appellants/defendants would contend that both the trial Court and the appellate Court wrongly held that the

defendants denied the title of the plaintiff resulting in forfeiture of the rights as tenants of the suit property and also failed to appreciate that the

defendants merely held a rival right to purchase the suit property and it did not mean that the lease hold rights were denied and also both the

Courts have failed to note that the defendants never claimed to be in possession of the suit property under assertion of their right to purchase under

agreement and the defendants continue to be in possession only pursuant to the lease under Ayyalu Naidu and therefore, the conclusion of both

Courts that the defendants have not attorned the tenancy in favour of the plaintiff amounting to denial of title is perverse. The Learned Counsel for

the appellant further contended that the property purchased by the plaintiff which clearly established that the plaintiff had never disputed the

relationship of land lord and tenant but only the plaintiff''s right to purchase the property and also specifically pleaded that there were lessees of

both the land and building under Ayyalu Naidu and therefore, the reasoning given by both the Courts that the defendants were not entitled to any

notice u/s 106 of Transfer of Property Act is misconceived and illegal and also both the Courts failed to note that the lease was for manufacturing

purpose and that the termination of tenancy can be only after giving six months notice to quit.

Per contra, the Learned Counsel for the respondent/plaintiff would contend that the appellants/defendants have admitted the vendor of the

plaintiff as landlord and the defendants 1 and 2 are lessees but subsequently the appellants/defendants contended that as if the first defendant

entered into an agreement of sale on 26.07.1978 with the plaintiff''s vendor Ayyalu Naidu and the suit filed by the defendants on the basis of sale

agreement is also dismissed and falsely contended that as if the sale deed executed by vendor of the plaintiff to the plaintiff is forged documents and

also the appellants/defendants have specifically denied the title of the plaintiff and as per Section 111(g)(2) of Transfer of Property Act, the

appellants/defendants not entitled to any legal notice u/s 106 of Transfer of Property Act and therefore, the suit filed by the respondent/plaintiff for

the relief of declaration and recovery of possession is maintainable and the contention of the Learned Counsel for the appellants/defendants is not

correct. Further, the Learned Counsel for the respondent/plaintiff contended that the suit property, both the land and building, originally owned by

the said Ayyalu Naidu and the respondent/plaintiff had purchased the above said property from the said Ayyalu Naidu and the previous lessee viz.,

Govindaraja Konar only installed rice mill and accessories and in the above said building, the defendants or their predecessor viz., Govindaraja

Konar has not doing any manufacturing business and only running the rice mill in the above said building and it is not manufacturing business and

also contended that the suit property is in Village and therefore, the benefits of Tamil Nadu Buildings Rent Control Act not applicable to the

respondent/plaintiff and both the Courts have discussed in detail and correctly decreed the suit this appeal is not maintainable.

Admittedly, the suit property is belonged to one Ayyalu Naidu and one Govindaraja Konar was lessee under him and in the year January 1978

the appellants/defendants have purchased the machineries in the suit property and attorned the plaintiff''s vendor viz., Ayyalu Nadar as landlord

and also admitted that Ayyalu Nadar had executed a mortgage deed in favour of the first defendant and therefore, it is not disputed that the

defendants are lessees under the original owner Ayyalu Naidu.

According to the respondent/plaintiff she purchased the suit property from the original owner Ayyalu Naidu on 22.08.1978 under Ex. A3,

registered sale deed and in which it is directed to redeem the mortgage executed in favour of first defendant and accordingly, issued notice to the

first defendant for redemption and since the defendants not received the notice, filed a suit in O.S. No. 463 of 1979 in the Court of District Munsif

for redemption and preliminary decree was passed on 24.08.1980. It is further contended on the side of the respondent/plaintiff that she issued

legal notice to terminate the tenancy on 31.12.1979 and requested the defendants to vacate the premises on or before 01.01.1980 and handover

the possession and also not to apply licence without permission from the plaintiff. Since the appellants/defendants had sent a reply notice denying

the sale deed as fraudulent documents and the respondent/plaintiff has no right to redeem the mortgage, the respondent/plaintiff again sent another

notice under Ex. A12 dated 13.02.1980 by stating that since the appellants/defendants denied the title, they have no rights to possess and

therefore, requested to handover the possession to the plaintiff within one week. Since the appellants/defendants not handed over the possession,

respondent/plaintiff filed the suit for declaration, delivery of possession and other reliefs.

The main contention of the appellants/defendants is that the appellants/defendants are lessees under the predecessor of the plaintiff viz. Ayyalu

Naidu and therefore, the conclusion of both the Courts that the appellants/defendants have not attorned the tenancy in favour of the

respondent/plaintiff amounting to denial of title is perverse and also both Courts were wrongly held that the defendants were not entitled to any

notice u/s 106 of Transfer of Property Act is misconceived and illegal and further contended that the lease was for manufacturing purpose and

therefore, the termination of tenancy only after giving six months notice to quit and hence, the decree and judgment passed by the both courts are

illegal.

The contention of the appellants/defendants that the alleged lease was for manufacturing purpose and hence, the respondent/plaintiff is not

entitled to evict the appellants/defendants without giving six months'' notice to quit is absolutely not correct, since the appellants/defendants and

their predecessor viz., Govindaraja Konar not running manufacturing business in the above said building and only running rice mill and therefore, as

rightly contended by the Learned Counsel for the respondent/plaintiff, not entitled to give six months notice to quit, as contemplated u/s 106 of

Transfer of Property Act.

The Learned Counsel for the appellants/defendants has contended that the predecessor of the plaintiff i.e., Ayyalu Nadar alone as lessor and

not admitted the plaintiff as lessor and therefore, no landlord and tenancy relationship between the respondent/plaintiff and appellants/defendants

and hence, as per Section 111(g)(2) of Transfer of Property Act, the respondent/plaintiff is not entitled to any relief as prayed for in the suit. In

support of his contention, the Learned Counsel for the appellants/defendants relied on two decisions, reported in AIR 1982 HIMACHAL

PRADESH 29 (Tara Chand Vs. Ishwar Dass and reported in 1984 (2) MLJ 432 (Ramaswami Panipoondar Vs. Mani).

In the first decision reported in Tara Chand Vs. Ishwar Dass and Another, in paragraph 13, reads as under:-

From the above facts it is clear that the plaintiffs have nowhere accepted the defendant as a tenant of the disputed property and have in fact

treated the defendant as a trespasser. The plaintiffs have also not alleged in the plaint that by denial of title of the plaintiffs, the defendant has

forfeited the tenancy rights. An indirect averment has been made in the plaint that if the defendant is proved to have been inducted as a tenant by

the mortgagees then the said creation of the tenancy in favour of the defendant is mala fide and is not binding on the plaintiffs. Hence the plaintiffs''

suit is on the grounds (a) that defendant was never inducted as a tenant by the plaintiffs; (b) that after the redemption of the mortgage the

defendant''s tenancy rights, if any, have come to an end. The defendant on the the other hand has set up a tenancy with respect to the disputed land

and had alleged that he has acquired status of a permanent occupancy tenant on the land. The only averment of the defendant in the written

statement is that as he was a permanent occupancy tenant of the suit land of 15th June, 1952 therefore, by virtue of the Punjab Act 8 of 1953, he

has acquired ownership rights. The next averment of the defendant that he has acquired a title by adverse possession is also based upon the fact

that as he had been vested with ownership rights on 15-6-1952 by virtue of the provisions of the Punjab Act 8 of 1953, therefore, he has become

owner by adverse possession from 15-6-1952. If the written statement of the defendant is read as a whole, then it cannot be said that the

defendant was denying his status as a tenant under the plaintiffs. On the other hand the defendant was all along claiming himself to be a tenant of the

plaintiffs and was accepting his status as a tenant and was claiming ownership simply on the ground of an enactment. There is no allegation in the

plaint that the defendant had denied the tenancy earlier to the institution of the suit and there is further no allegation in the plaint that the defendant

was ever a tenant of the plaintiffs. In view of these circumstances that the defendant was never accepted as a tenant by the plaintiffs, there is no

question of denying the title of the plaintiffs. For applying the provisions of Section 111 (g), T. P. Act the plaintiffs should first have accepted the

existence of relationship of landlord and tenant and then should have claimed the possession on the ground of forfeiture of tenancy by denial of title.

In the present case this is not the position. On the other hand the defendant is claiming tenancy rights and has stated in his written statement that he

had been paying rent to the plaintiffs in the year 1964 also, which rent was accepted by the plaintiffs. In view of the aforesaid circumstances, it

cannot be said; that the defendant loses his tenancy rights by denial of the tenancy.....

The Learned Counsel for the appellants/defendants also relied on an yet another decision reported in Ramaswami Panipoondar Vs. Mani,

wherein in paragraph 13, reads as under:-

13.A technical plea has been raised by the first defendant by stating that the suit must fail for want of proper notice to quit. In the written statement

filed, except for a stray sentence that the suit must fail for want of proper notice to quit, there is no amplification of the ground on which the notice

to quit is required. However, Mr. G. Subramanian, Learned Counsel for the first defendant would submit that the plaintiff himself characterised the

first defendant as a tenant and hence, even assuming that the first defendant set up title in himself, there ought to have been a determination of the

lease u/s 111(g), Clause (2) of the Transfer of Property Act. The facts disclosed do not justify the projection of such a theory at all. The suit is not

based on tenancy. The suit has been filed for declaration of title and for recovery of vacant possession. The plaintiff never claimed that the first

defendant was his tenant at any point of time. The first defendant also never admitted that he was a tenant under the plaintiff at any point of time. It

is true that in the plaint there is a reference that the first defendant was a tenant under the vendor of the plaintiff. But, it has been categorically

averred that the first defendant and the vendor of the plaintiff agreed to dismantle the shed and vacate the land within three months from the date of

the sale in favour, of the plaintiff, thereby clearly suggesting that any alleged erstwhile relationship based on tenancy between the vendor of the

plaintiff and the first defendant agreed to be put an end to and the first defendant agreed to vacate the land, as stated above. The plaintiff could not

be stated to have alleged or admitted that the first defendant continued in possession as his tenant after the plaintiff''s purchase. The first defendant

never came anywhere near this case of tenancy under the vendor of the plaintiff. To attract Section 111(g) of the Transfer of Property Act, there

ought to have been an indisputable relationship or lessor and lessee at some point of time or other and subsequently, the lessee ought to have

renounced his character as such, setting up title in a third person or by claiming title in himself. Where, from the very inception there was no

admission on either side of the existence of the relationship of lessor and lessee and the parties were always at grips and loggerheads, each one

claiming independent title in himself, as against the other, there is no scope for coming anywhere near Section 111(g) of the Transfer of Property

Act. Such are the facts of the present case. The first defendant never admitted that he was put in possession of the suit property by the plaintiff''s

vendor as a lessee and there was an attornment of tenancy by him in favour of the plaintiff on the latter''s purchase. Hence, the plea with regard to

lack of notice to quit is a misconception on the facts of the present case.

A perusal of the above said decisions would reveal that they are not applicable to the facts of the present case. Therefore, the facts of the

above said two decisions relied on by the Learned Counsel for the appellant are not applicable to the present case.

In the instant case, as rightly pointed out of the Learned Counsel for the respondent/plaintiff, the tenancy between the vendor of the plaintiff and

the defendants are admitted and also the respondent/plaintiff has proved that she purchased the suit property under a valid sale deed from the

vendor of the plaintiff and after purchase, issued legal notice to the defendants as lessees under the predecessor but the appellant/defendants have

categorically denied the tenancy relationship in the reply notice and also denied the title of the plaintiff/respondent by contending that the sale deed

executed by the vendor of the respondent/plaintiff is forged documents and also claimed title to the appellants/defendants under sale agreement.

Further, with regard to Rights of lessors transferee, it is relevant to refer Section 109 of Transfer of Property Act, reads as under:-

Rights of lessor''s transferee:- If the Lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee,

in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the Lessor as to

the property or part transferred so long as he is the owner of it; but the Lessor shall not, by reason only of such transfer cease to be subject to any

of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him;

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such

transfer has been made, pays rent to the Lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The Lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the

part so transferred, and in case they disagree, such determination may be made by an Court having jurisdiction to entertain a suit for the possession

of the property leased.

It is relevant to refer Section 111(g) of Transfer of Property Act, which reads as follows:-

Determination of lease:- A lease of immovable property determines--

(a)......

(b)......

(c)......

(d)......

(e)......

(f)......

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re- enter

or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is

adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor

or his transferee [gives notice in writing to the lessee of] his intention to determine the lease;

A careful reading of the above said Section 111(g) and the facts of the present case reveal that the appellants/defendants is not entitled to any

legal notice u/s 106 of Transfer of Property Act and even then the respondent/plaintiff has issued legal notice under Exs.A7 and A.12, dated

25.11.1979 and 23.02.1980 respectively and therefore, the respondent/plaintiff is entitled to the relief of declaration, recovery of possession and

other reliefs.

From the above said discussion, the trial Court as well as the first appellate Court have correctly held that the appellants/defendants had denied

the respondent/plaintiff''s title to the suit property and therefore, no notice u/s 106 of Transfer of Property Act is necessary for determination of

lease and also correctly held that six months'' notice u/s 106 of Transfer of Property Act is not necessary, since it is not proved that lease was

manufacturing purposes and therefore, both the courts below have correctly granted the relief to the respondent/plaintiff and no need to interfere

with the above said concurrent findings of both Courts. From the forgoing discussions, the Substantial Questions of Law are answered accordingly.

In the result, the Second Appeal is dismissed with costs, confirming the judgment and decree dated 25.06.1998 made in A.S. No. 16/1997 on the

file of the Principal Sub Court, Madurai, and confirming the judgment and decree, dated 29.11.1996 made in O.S. No. 298/1981, on the file of

the District Munsif Court, Madurai.