Due to variance in pleadings whether relief can be granted.

The defendant is the petitioner in this civil revision petition against the reversing judgment dated 9. 1992 in C.M.A.No.29 of 1992 on the file of the 2nd Additional City Civil Court, Madras, by the respondent/ plaintiff, whereby the lower appellate court has dismissed I.A.No.12454 of 1981 filed by the petitioner herein in the. trial court in O.S.No.4059 of 1979 for purchase of the suit land under Sec.9 of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as ‘the Act’).

2. The said suit O.S.No.4059 of 1979 is by the respondent for ejectment of the petitioner from the suit land of an extent of 3,086 sq.ft., claiming that one 50’ x 141/2’ land is in the abovesaid 3,086 sq.ft., land was leased out to the petitioner under Ex.A-1 agreement dated 16. 1975, but the petitioner had trespassed into the other remaining portion of the said suit property. In the said suit, the petitioner filed written statement, inter alia, claiming that the entire 3,086 sq.ft., was leased out along with the shed thereon and that the signature of the petitioner was obtained in Ex.A-1 only on misrepresentation or without letting her know about the contents of the said agreement.

3. Even though the abovesaid application has been disposed of, it is admitted by both the parties that the abovesaid suit is still pending. In fact, it is said that there was also another suit O.S.No.1246 of 1979 in the same trial court, filed by the same plaintiff, for a mandatory injunction relating to the same suit property and that the said suit also is still pending. No doubt, it appears that initially both the said suits and the abovesaid application were tried together and common evidence was let in, but as found from the order of the trial court in the abovesaid I.A.No.12454 of 1981, pursuant to the petition filed by the respondent/ plaintiff herself, ultimately only the application was taken up for enquiry and not the other two suits and the evidence recorded was treated only as evidence in respect of the said application only.

4. Now, even though in the written statement, filed by the petitioner in the abovesaid O.S.No.4059 of 1979, which was originally filed in 1979, the petitioner pleaded that the lease was land and shed thereon, in the affidavit in support of I.A.No. 12454 of 1981, which was filed in 1981, the petitioner took a different stand pleading that the lease was only of the abovesaid suit land and that pursuant to the permission given by the landlord the superstructure was put up by her. (No doubt, it appears that an amended written statement was filed, that too in 1979 itself, but that there too, in the amended portion though it is stated that the tenant was entitled to purchase the land, the original plea that the lease is of land and superstructure thereon, has not been in any way changed). Likewise, in the counter to the said application also, the respondent/ plaintiff took a stand different from what was taken in the plaint, contending that the lease was for land and superstructure thereon. It must also be noted that prior to the filing of the suit, the plaintiff, in his suit notice Ex.B-2, dated 30.1.1979 and subsequent rejoinder Ex.B-4 dated, 12. 1979 also maintained the plea that the lease was only of land. Likewise, prior to the suit, in Ex.B-3, dated 2. 1979, the reply to the suit notice and the reply to the rejoinder Ex.A-137, dated 12. 1979, both by the tenant, the plea was that the lease was of land and shed thereon.

5. However, the landlord claims that there was a lease agreement which came into being under Ex.A-1 dated 16. 1975. The said Ex.A-1 has been signed only by the petitioner/tenant. According to the said Ex.A-1, the petitioner has taken the lease of land only, but not the entire suit land, but only 50’ x 14 1/2’. But the case of the petitioner with reference to Ex.A-1 is that though she signed Ex.A-1, she signed it without knowing the contents and the landlord, by misrepresentation, obtained Ex.A-1 from her