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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. THARANI, J.
Krishnamoorthy - Appellant
Versus
Nagammal & Ors. - Respondents
S.A.(MD) Nos.559 and 560 of 2015
Decided On : 29-01-2019
Civil Procedure Code - Section 100 - Trial Court - Plaintiff is entitled for injunction and for specific relief of agreement – Tenant - First defendant sent a notice of eviction - Case of the defendants in suit in is that since plaintiff has failed to pay balance amount, he is not having any right in suit property as a tenant - Though defendants are ready to perform their part of contract plaintiff has failed to pay balance amount - Defendants have waited for plaintiff till Sub Registrar Office - As plaintiff did not have fund to pay the balance amount, he did not come there plaintiff has not sent any reply notice first defendant is having every right over suit property – Held, Scope- cultivating tenant agreeing to purchase land-agreement entered into-tenant put in possession of property in capacity as prospective purchaser-contract not performed-He does not revert to his position as cultivating tenant-Distinction between case where lessee becoming mortgagee of the property and case where he becomes an agreement holder put in possession as a prospective purchaser - A perusal of the records reveals respondent was a tenant and there was an agreement between appellant/landlord and the respondent/tenant for sale of suit property. Time for payment of balance consideration was fixed as two months - Respondent approached the Court for the specific performance and for permanent injunction - It is settled legal position that plaintiff has to prove case but in both lower Court Judgments it is stated that burden is upon defendants to prove the case - Capacity of second defendant is not an issue to be decided - In agreement it is clearly stated that respondent will lose right tenancy if she failed to perform her part of contract - In above circumstance possession of respondent is not as a tenant as there was an agreement of sale - Possession in hands of proposed purchaser is not a possession of a cultivating tenant - There is no necessity for appellant to approach revenue Courts as there is no subsisting relationship of landlord and cultivating tenant between petitioner and respondent - A perusal of the records reveals that there is apparent mistake on part of both lower Courts in that burden is upon the defendants to prove the case and by assuming that plaintiff might have paid back arrears of the rent - There is apparent mistake under Section 100 of C.P.C On side of appellant, it is stated that respondent was not having fund at any point of time and as respondent did not pay lease amount properly appellant has filed a suit before revenue Court and respondent was a chronic defaulter and she never pay the rent and in evidence respondent has admitted that she has arrears of rent - It is further stated that as respondent was not capable of paying lease amount, just to give an opportunity to purchase property appellant fixed a time limit and fixed that time is the essence of he contract - Appeals allowed
JUDGMENT :
Common Prayer : Second Appeals filed under Section 100 of Civil Procedure Code, to set aside the Judgments and Decrees dated 30.06.2015 passed in A.S.Nos.21 and 22 of 2014 on the file of the I Additional District Judge(PCR), Tiruchirappalli confirming the Judgments and Decrees dated 19.02.2014 passed in O.S.No.680 of 2001 and 539 of 1998 on the file of the I Additional Sub Judge, Thiruchirappalli.
Heard Mr. J. Anandavalli, learned counsel appearing for the appellant, Mr. Raguvara Gopalan for Mr. K. Prahakar, learned counsel appearing for the first respondent and Mr. B. Brijesh Kishore, learned counsel appearing for the second respondent.
2. These appeals filed against the common Judgment and Decree passed in A.S.Nos.21 and 22 of 2014 dated 30.06.2015 on the file of the I Additional District Judge(PCR), Tiruchirappalli confirming the common Judgment and Decree passed in O.S.Nos.680 of 2001 and 539 of 1998 dated 19.02.2014 on the file of the I Additional Sub Judge, Thiruchirappalli.
3. The appellant in S.A.(MD) No.560 of 2015 is the first defendant and the first respondent herein is the plaintiff and the respondents 2 to 7 are the defendants 2, 5 to 9 in O.S.No.539 of 1998 and the appellant in S.A.(MD) No.559 of 2015 is the plaintiff and the first respondent herein is the defendant in O.S.No.680 of 2001. Since both the appeals arise out of one and the same property and between the same parties and against the common Judgment passed by the trial Court and by the first Appellate Court, a common judgment is delivered in these appeals.
4. The case of plaintiff in O.S.No.539 of 1998 is that the plaintiff entered into an agreement with the first defendant on 09.07.1998 for the sale of the suit property and the plaintiff has paid a sum of Rs.10,000/- (Rupees Ten Thousand only) towards advance. The sale consideration was fixed as Rs.2,00,000/- (Rupees Two Lakhs only). The time for payment of balance is fixed as two months. The plaintiff sent a telegram on 08.09.1998 to the first defendant stating that he is ready and willing to perform his part of the contract. But the first defendant did not act in accordance with the agreement. The first defendant sent a notice on 10.09.1998 stating that he was waiting at Sub Registrar Office from 02.00 p.m., till 06.00 p.m. But the plaintiff did not come. No time limit was fixed in the agreement. The plaintiff is ready to perform his part of the contract. The first defendant sent a notice of eviction. As the plaintiff is in possession as a tenant and there is no need to hand over the possession. Though the plaintiff had approached the defendants several times, the first defendant has failed to execute the sale deed. But the first defendant has created some documents in favour of the second defendant. The third defendant has executed a mortgage deed. The defendants are having no right over the property. The plaintiff is entitled for injunction and for specific relief of the agreement.
5. The case of the defendants in the suit in O.S. No. 539 of 1998 is that since the plaintiff has failed to pay the balance amount, he is not having any right in suit property as a tenant. Though the defendants are ready to perform their part of the contract, the plaintiff has failed to pay the balance amount. The defendants have waited for the plaintiff till 06.00 p.m., at the Sub Registrar Office. As the plaintiff did not have the fund to pay the balance amount, he did not come there. The plaintiff has not sent any reply notice. The first defendant is having every right over the suit property. On 17.09.1998, the first defendant has sold the property for Rs.2,00,000/- (Rupees Two Lakhs only) to the second defendant. The second defendant has mortgaged the property to the third defendant for a sum of Rs.21,000/- (Rupees Twenty One Thousand only).
6. The case of the plaintiff in the suit in O.S.No.680 of 2001 is that the suit land belonged to the plaintiff and that the defendants were cultivating tenant under the plain
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