TMI Blog2011 (6) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... mane for the disposal of these second appeals, would run thus: (i) The appellant herein/Mani filed the suit O.S.No.104 of 2005 for specific performance of an agreement to sell, with the following prayer: a) to direct the defendants to execute and register the sale deed in respect of the suit property in favour of the plaintiff at his costs after receipt of the balance of sale consideration of ₹ 2,78,999/- within a time to be fixed by this Court. (extracted as such) (ii) The respondents herein filed the written statement resisting the said suit. (iii) In turn, the respondents herein, namely, Jayavel and 7 others, as plaintiffs filed the suit O.S.No.91 of 2007 for evicting the appellant herein/Mani on the ground that the tenancy in favour of Mani was terminated by the plaintiffs/landlords and that he should vacate and hand over possession. (iv) The following are the reliefs found set out in O.S.No.91 of 2007: to evict the defendant from the suit property and to order recovery of possession of the same in favour of the plaintiffs, directing to pay a sum of ₹ 6,600/- as the arrears of rents for the period from 1.2.2002 to 30.9.2004 in favour of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion based on the tenancy is maintainable? c) Whether the notice of termination under Ex.A7 is valid in law? d) Whether the respondents are not barred from enforcing any right in respect of the suit property other than the rights conferred under sale agreement Ex.B1 in terms of Section 53A of Transfer of Property Act? e) Whether the jurisdiction of the civil Court is not barred in view of the provisions contained in Tamil Nadu Buildings (Lease and Rent Control) Act 1960? f) Whether the suit is maintainable as framed without proper power or authority? 5. I hark back to the principles as found embodied in the following judgement of the Honourable Apex Court: (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL; 24. ........(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not supported by any evidence. Only on conjectures and surmise, the Courts below held as though the agreement to sell was tampered with at the instance of Mani. (iii) The question of ushering in limitation also does not arise as there was no tampering with the agreement to sell. (iv) The Courts below did not take into account the legal position as laid down by the Honourable Apex Court in various decisions. Accordingly, the learned counsel for the appellant would pray for setting aside the judgements and decrees of the Courts below and for decreeing the suit O.S.No.104 of 2005 filed by Mani/the second appellant and for dismissing the suit O.S.No.97 of 2007 filed by the respondents herein. 9. In a bid to torpido and pulverise the arguments as put forth and set forth on the side of the second appellant, the learned counsel for the respondents would advance his arguments which would succinctly and precisely run thus: (a) Ex.B1-the agreement to sell would ex facie and prima facie exemplify and demonstrate that it was tampered with, at the instance of Mani. (b) The Courts below taking into account the reality held that such agreement to sell was unenforceable, warranti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Without any demur or objection from any quarter, the said agreement to sell was mechanically marked, which in my opinion was not correct. 14. The implication of Ss.35 and 38 and other provisions of the Indian Stamp Act are well known and axiomatic. Be that as it may; now, it has to be seen as to whether such an agreement to sell was tampered with or not. 15. A mere poring over of the said agreement to sell-Ex.B1 would reveal that corrections were made thereon. The averments including the corrections found in Ex.B1-the agreement to sell vis-a-vis the deposition of Mani-D.W.1, if taken into account, they do not go hand in hand or hang together. The explanation given by Mani tantamounts to putting a square peg in a round hole. 16. D.W.1 Mani the appellant herein, in his deposition would project and portray as though as on the date of purchase of the stamp papers, the said document-Ex.B1 was scribed. A perusal of Ex.B1 would demonstrate and display that it is found written on four sheets of papers and out of them two sheets are embossed stamp papers of the value of ₹ 5/- each. Those embossed stamp papers would bear the date of sale of such papers as 25.3.2002. If it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culiar facts of this case. The Court cannot be expected to cut some slack in favour of the appellant. In view of such unauthorised material corrections, it was virtually held by both Courts that Ex.B1 had disaster whither all over and that the probability of specifically enforcing it had become a well neigh impossibility. 23. The respondents herein would claim that in fact, the said agreement emerged on 1.12.2002 and the suit O.S.No.104 of 2005 itself was filed on 22.11.2005. According to them only six months' time was contemplated as the period of performance. As on the date of presentation of the plaint, even after excluding the said six months' period, three years limitation period got expired as per Article 54 of the Limitation Act, 1963. As such, the said material alteration affected the very maintainability of the case. 24. The Courts below au fait with law and au courant with facts and also taking into account the oral as well as documentary evidence arrived at the just conclusion that the said agreement-Ex.B1 was materially and that too unauthorisedly altered. It beats me as to how the appellant could justify his grounds. 25. The learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that ever since the date of emergence of Ex.B1, the possession of the appellant got itself converted into one of an agreement holder and not that of a lease holder and accordingly, he would cite the following decisions. (i) (1973) 2 SUPREME COURT CASES 197 ARJUNLAL BHATT MALL GOTHANI AND OTHERS V. GIRISH CHANDRA DUTTA AND ANOTHER, certain excerpts from it would run thus: 5. We are satisfied that both the courts below have arrived at the correct conclusion that there is no evidence at all to justify an inference that the agreement in question was obtained from the appellants under undue influence or coercion. None of the instalments were paid as agreed upon. The application made by the appellants on March 31, 1960, as well as the application made subsequently are patently dishonest attempts at avoiding payment of the instalments as agreed upon. Under clause (5) of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be changed through agreement subject to the limitations under the law. Earlier when the appellants were inducted into tenancy it only means both agreed that their relationship was to be that of landlord and tenant. Later when the landlord decided to sell this property to the tenant and the tenant agreed by entering into agreement, they by their positive act changed their relationship as purchaser and seller. When the seller-landlord accepts the sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change, their relationship of landlord-tenant ceases. (iii) (2006)4 MLJ 1634 S.GURUMURTHY V. N.RAMAN, certain excerpts from it would run thus: (A) Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Section 10(2)(i) Eviction petition on the ground of wilful default Tenant entering into a sale agreement with the landlord, for purchase of the tenement Sale agreement stipulating that the tenant should pay the rent till the execution of the sale deed Sale agreement will not terminate the liability of the tenant to pay rent Tenant's failure to pay rent will t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent, there was only an oral agreement between him and one of the co-owners. There is no perversity or illegality in the finding of both the Courts below that there has been a default in the payment of rent. (iii) 1996(I) CTC 398 JESSIE THAVAMANI V. LIAKATH BASHA, certain excerpts from it would run thus: 11. In the written statement filed by the second defendant in the above suit (the respondent herein), he has specifically stated that the alleged receipt dated 1.2.1984 would not in any way affect the right, title and interest of the parties and the property purchased by him and the said receipt is not binding on him. Learned counsel for the respondent/landlord has cited a decision of Padmini Jesudurai,J. reported in Kuppulal, B.V.D.Sagunthala, 100 L.W.577, which runs as follows: Mere agreement of sale will not terminate the landlord-tenant relationship and the liability of the tenant to continue to pay the rent, unless there are specific recitals to the contrary in the agreement of sale. In this case the tenant-respondent, despite the alleged oral agreement of sale with one of the co-owners, even if it is found to be true, will till be under an obligation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld cease and the tenant's possession should be traced only to the agreement of sale. By merely entering into an agreement of sale the tenant did not acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part-performance under Section 53-A, Transfer of Property Act. Even assuming that the petitioner is entitled to the benefit of section 53-A, his liability to pay rent does not cease unless the agreement of sale puts an end to that liability in specific terms. The liability to pay rent, therefore, continued. The default in payment of the rents in the present case was wilful and the requirement of the building by the landlady for the purpose of the business of her son was bona fide. The order of eviction had therefore to be sustained. 29. Absolutely there could be no hesitation in falling in line with the view found highlighted in those precedents and there is no conflict of opinion also in this regard. There is no hard and fast rule that soon after the emergence of an agreement to sell between a landlord and a tenant with regard to a demised premises, the possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to this case. He would also submit that relating to the village Panchayat areas, the Tamil Nadu Buildings (Lease and Rent Control) Act, is not applicable. Despite the finding rendered by the first appellate Court that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act are not applicable, to this case, nothing has been shown before this Court that the said area is covered under the Act. 36. It is also quite obvious and axiomatic that the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable to the village Panchayat areas. Hence, in this view of the matter I would like to hold that there is no question of law much less substantial question of is involved in this matter. Accordingly, both the second appeals have to be dismissed and accordingly dismissed. 37. The learned counsel for the second appellant would make an extempore submission that since this Court decided the appeals as against the second appellant/Mani, the advance amount paid under the lease due repayable by the respondents/erstwhile landlords towards the erstwhile tenant Mani be adjusted towards arrears of rent/damages for use and occupation as the case may be. 38. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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