The plaintiff's right to challenge tenancy and evict tenants, and the defendant's obligation to execute the sale deed and deliver possession.

1. These revision petitions have been filed against the order passed in EA No.610 of 2012 in EP No.125 of 2011 in O.S.No.81 of 198 6 on the file of II Additional Subordinate Judge at Coimbatore.

2. The 1st respondent Mrs. Pappathi instituted a suit in O.S.No.81 of 1996 before Sub Court, Coimbatore for specific performance of sale agreement entered into between her and the second respondent Sarojini on 03.12.1982. As per the sale agreement, the 2nd respondent herein had to deliver vacant possession of the suit property after evicting the tenants namely Shanmuga Industries which was thereafter named as Sri Durga Industries and one Mr. Jayaraman. The said Sarojini contested the suit on various grounds and also stating that she did not agree to evict the tenants and deliver the vacant possession.

3. After trial, the suit was decreed on 26.09.1988 directing the defendant to execute the sale deed after receiving the balance sale consideration of Rs.1,59,300/- and deliver vacant possession to the plaintiff. Aggrieved by the judgment and decree, the defendant preferred an appeal in A.S.No.1233 of 1988 before this Court mainly contending that the contract between the plaintiff and the defendant stands frustrated as the defendant was not in a position to give actual possession since the tenants are in possession of the suit properties.

4. During pendency of the appeal, the plaintiff filed a memo and also an affidavit stating that she was ready and willing to complete the sale by accepting constructive possession and she was not insisting for physical possession. This Court, relying on the decisions of the Hon'ble Supreme Court reported in AIR 1954 SC 44 [Satyabrata Ghose v. Mugneeram Bangur] and 2001 (1) LW 436 (SC) [Surjit Kaur v. Naurate Singh & anr.] held that even at the appellate stage the contention of the plaintiff can be accepted and further observed that the defendant had deliberately inducted a party into the possession after entering into an agreement, only with the object of frustrating the contract which is legally impermissible. It is further held as follows -

28. Thus, on a consideration of all the above points, this Court while sustaining the findings recorded by the Court below, affirm the judgment and decree of the court below in the entirety with the modification that the defendant shall execute the sale deed after receiving the balance of consideration and the defendant has to deliver actual possession of the portion which is in her possession and she has to deliver constructive possession in respect of the portion under the occupation of the tenants and that it is for the plaintiff to take necessary steps to evict the tenants besides making it clear that it is open to the plaintiff to challenge the tenancy, which came into existence during the pendency of the proceedings as not binding and evict the tenant from his possession.

5. Aggrieved by the judgment, the defendant filed a Letter Patent Appeal. The Division Bench of this Court confirmed the finding of the learned Single Single in LPA No.181 of 2001. The further appeal filed by the defendants was also dismissed by the Hon'ble Supreme Court in Civil Appeal 1026 of 2005.

6. Based on the decree, the plaintiff / decree holder laid an execution petition in E.P.No.125 of 2011 for execution of sale deed. The executing court executed the sale deed on 26.04.2012. Thereupon, the decree holder filed E.A.No.610 of 2012 for delivery of possession under Order 21 Rule 35 CPC. The judgment debtor filed a counter stating that the tenant is in possession of the part of the suit property and he had put up superstructure thereon. The judgment debtor also filed an application to implead the tenant as respondent in the execution petition. The petitioner who claims to be a tenant was impleaded as the second respondent in the execution petition.

7. The petitioner filed his counter in E.P stating that he is the absolute owner of the superstructure constructed over the suit property