The main legal point established in the judgment is that the civil court has no jurisdiction to pass a decree for eviction when the defendant continues as a statutory tenant, and the tenant cannot waive this right. Additionally, an order passed by the rent control court will not operate as res judicata against the defendant in contending that the civil court has no jurisdiction.

Defendant in O.S. No. 133 of 1981 on the file of the Sub Court, Tellicherry is the appellant in the second appeal. The plaint if filed the suit for recovery of possession of the plaint schedule building, which consists of a residential building with the land appurtenant thereto having an extent of 61/2 cents. The defendant took the building on rent on 17-8-70 on a monthly rent of Rs.50/-. The lease was for a period of six months and after the expiry of the term of the lease, the defendant was continuing as a tenant holding over on the same terms and conditions. While so, the defendant entered into an agreement with the plaintiff-respondent, wherein the defendant offered to purchase the building and the appurtenant land for a consideration of Rs.12,500/-. A sum of Rs.4,500/- was paid as part of the consideration and as per the agreement, I he sale deed was to be executed on 30-1-75. The plaintiff contended that the defendant committed breach of the agreement and she failed to pay the balance amount and so the sale deed could not be executed. The plaintiff filed rent control O.P. 196/76 for evicting the defendant from the suit building. The defendant contended that she had been in possession of the building as per the terms of the agreement for sale and that the Rent Control Court has no jurisdiction. The original petition was accordingly dismissed on 17-3-77, vide Ext.A20 order. Thereafter the plaintiff filed the suit for recovery of possession of the building on the strength of title. The plaintiff also claimed damages for use and occupation at the rate of Rs.80/-.

2. The defendant opposed the suit contending that the suit is not maintainable. The defendant denied the alleged breach of agreement. The defendant maintained that she has been in possession of the house and the surrounding land pursuant to Ext.Bl agreement. It was also alleged that the proper remedy of the plain tiff was to file a suit for specific performance of the agreement by claiming balance consideration.

3. The trial court decreed the suit as prayed for and the defendant filed A.S.41/86. In the appellate court several contentions were raised. It was specifically contended that the civil court has no jurisdiction to order eviction of the defendant from the building. The first appellate court held that the defendant is not entitled to the benefits of the provisions of the Rent Control Act, as she has waived that right and therefore the Rent Control Act, Act 2/65, has no application. It was also held that S.53A of the T.P. Act has no application as she committed breach of the agreement. The lower appellate court was of the view that the defendant has taken an in consistent stand in claiming the benefit of part performance under S.53A of the T.P. Act and also the tenancy right under Act 2 of 1965. On these premises the judgment and decree of the trial court was confirmed.

4. The learned counsel for the appellant Shri. M.Viswanatha Iyer contended that the courts below have erred in holding that the defendant is liable to be evicted from the building. It was urged that the tenancy in favour of the defendant has not come to an end and the defendant continued as a statutory tenant even after the execution of Ext.Bl agreement and therefore the rent control court alone had jurisdiction to pass an order of eviction against the defendant. The respondents' counsel contended that the defendant has already pleaded before the rent control court that she had been in possession of the building by virtue of Ext.Bl agreement and the rent control court has no jurisdiction and based on this contention the rent control court dismissed the petition filed by the plaintiff and the order passed by the rent control court has become res judicata.

5. The short question that arises for consideration is whether the civil court has got jurisdiction to pass an order of eviction against the defendant. Admittedly the building is situated within the area where the Building (Lease and Re