TaxTMI 
TaxTMI 
2005 (9) TMI 666
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....and between the Appellant and the Respondents for a total consideration of Rs. 80,000/- Allegedly, for execution of the deed of sale approval of the Ceiling Authorities was necessary wherefore the draft deed of sale was filed before the Ceiling Authorities. The said approval is said to have been granted in the year 1977. According to Appellant, the factum of grant of approval of the said deed of sale was not conveyed and only in the year 1997 he came to learn thereabout whereafter the said suit for specific performance of the contract was filed. During the pendency of the suit, the Respondent alienated the suit property in favour of the Respondent Nos. 6 & 7 herein by reason of a deed of sale dated 10.3.1998. A written statement was filed on 20th July, 1998. In the said written statement however, no counter-claim was filed. The Appellant herein filed an application for amendment of plaint inter alia questioning the alienation by the original defendants in favour of defendant No. 6 and praying for declaration that the deed of sale dated 10.3.1988 executed by defendant Nos. 2 to 5 in favour of Respondent Nos. 6 and 7 herein is null and void. 3. However, subsequently on or about 6.1....
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....urt has no jurisdiction to entertain the counter claim for delivery of possession, the claim is liable to be rejected. The Plaintiffs farther submit that the Defendants are not entitled for relief of mesne profits at the rate of Rs. 1500/- per month from 10.11.92 i.e. for the past 3 years and also in future as the Plaintiff No. 1 paid the entire sale consideration in respect of the Plaint Schedule Property as stated in the Plaint and are entitled to specific performance of agreement of sale and the Defendants are not entitled for any mesne profits as claimed. Hence, the claim of the Defendants is liable to be rejected. The Plaintiffs deny all other adverse allegations which are not specifically traversed herein above and pray that the counter claim of the Defendants be rejected." 4. A separate written statement appears to have been filed by the third defendant on behalf of defendant Nos. 2, 4 and 5 on or about 2.11.1999. The third defendant also filed an additional written statement. 5. The Trial Court, however, as regard counter-claim did not frame any specific issues. The issues framed by the learned Trial Judge are as under: "1) Whether there is an agreement of sale in b....
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....rmine the counterclaim of the Respondents in view of the fact that the tenant cannot be permitted to approbate and reprobate at the same time. The learned counsel submitted that the Appellant herein in paragraph 4 of the plaint has claimed possession in his capacity as a vendee and not as a tenant and, thus, a different relationship between the parties having come into being, the relationship of the landlord and tenant did not revive automatically upon his failure to establish his claim. Strong reliance in this behalf has been placed on Sultan and Ors. v. Ganesh and Ors. AIR1988SC716. Arjunlal Bhatt Mail Gothani and Ors. v. Girish Chandra Dutta and Anr. AIR1973SC2256 and R. Kanthimathi (supra). It was urged by the learned counsel that when the plaintiff sets up title in himself which is inconsistent with his plea of tenancy and if he, having not succeeded in establishing his former claim, cannot now turn round and contend that he should be granted the relief to continue to be in possession of the suit premises as if he is a tenant. Although two inconsistent defences are permissible, Mr. Gupta would argue that such defences should not be mutually destructive and in support thereof ....
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.... his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied - * * * (vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and mat such denial or claim was not bona fide. The Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application" Paragraph 4 of the plaint which is referred to by the Counsel for the parties at the hearing is as under: "The plaintiff No. 1 also paid a sum of Rs. 10000/- as advance and earnest money on the date of the said oral agreement and symbolic possession was delivered on the date of agreement. Earlier to the date of entering into agreement of sale, the plaintiff No. 1 was in possession of the plaint schedule property as tenant and continued thereafter as a purchaser after entering into an agreement of sale in part performance of the agreement of sale." The Respondent Nos. 1 to 4 herein however, in their written statement contended:....
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....mined by a notice to quit. The right of the Respondents to forfeit the tenancy, if any, had also not been exercised and no notice therefore was served upon the Appellant. 16. It may be true that, as was submitted by Mr. Nageshwara Rao, that the predecessors' in interest of the Respondents had filed a suit for eviction before the Rent Controller on the ground of default on the part of the Appellant in payment of rent as it appears from the statement made by PW-1 that the said suit was dismissed for default. In this appeal, the Respondents should not be allowed to raise a contention for the first time that only in view of such a statement a suit for eviction was not pursued. Neither there exists any material in this behalf nor the court below went into the said question. The consequences resulting from a suit being dismissed for default must ensue and it must he held that the question as regard the right of the Respondents to evict their tenant on one or more of the grounds enumerated in Section 10 of the Act must be determined by the Rent Controller in an appropriate proceeding. 17. In Sheela and Ors. v. Firm Prahlad Rai Prem Prakash [2002]2SCR177 whereupon Mr. Nageshwara Rao....
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....nancy premises as tenant cannot he said to have denied the title of landlord or disclaimed the tenancy. Such an act of the tenant does not attract applicability of Section 12(1)(c) abovesaid. It is the intention of the tenant as culled out from the nature of the plea raised by him, which is determinative of its vulnerability." 18. There cannot be any doubt whatsoever that the Respondents could have maintained a proceeding for eviction before the Rent Controller on the said ground. Once such a proceeding could be initiated under the said Act, the jurisdiction of the civil court would be held to have been ousted. 19. It is true as has been submitted by Mr. Gupta that a party to a lis cannot raise pleas which are mutually destructive but ordinarily inconsistent defences can be raised. The Respondent No. 2 to 5 were Plaintiffs in respect of their counter-claim and, thus, it was for them to prove their case by pleading such foundational facts as were required to obtain a decree in their favour. The Respondents, as noticed hereinbefore, in their written statement categorically stated that the plaintiff had been in possession of the land as a tenant and his possession is that of tenant ....
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....lants by pleading therein that the earlier proceedings were collusive nor did they acting on those pleadings acquire rights to the suit properties. The said decision has no application to the fact of the present case. Evidence of the Appellant, in this behalf to which our attention was drawn reads as under: "As a tenant, I we used to pay Rs. 300/- per month till the date of purchase of the property. The 1st defendant filed a Rent case No. 617 of 1988 on the file of IV Addl. Rent Controller, Hyderabad after filing the present suit. The said R.C was dismissed for default on 16.6.1992. The 1st defendant did not get it restored the said Rent Case nor they have filed any case for eviction." The Respondents herein on the aforementioned premise cannot be permitted to raise a plea that the suit for eviction was not pursued before the Rent Controller, Hyderabad only because the Appellant had raised the plea that the Rent Controller had no jurisdiction in the matter. The matter might have been otherwise if in the said proceedings a finding was arrived at that the court has no jurisdiction upon acceptance of the said plea by the Appellants herein. 25. In R.N Gosain (supra), differe....
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....giving an undertaking is bound thereby but by reason thereof the same cannot he given a meaning whereby the scope and extent thereof is enlarged." 31. It is now well-settled that a decree passed by a court having no jurisdiction is a nullity. The Civil Court had no jurisdiction to pass a decree for eviction only on the basis that the tenant has denied their title. The matter might have been different if the civil court has otherwise jurisdiction to entertain a suit. The legislature has created new rights and liabilities for both the landlord and tenant in terms of the provisions of the said Act and provided a forum therefore. The jurisdiction of the civil court having been barred except in a situation where the proviso appended to Sub-section (1) of Section 10 would be attracted, the Civil Court has no jurisdiction to entertain a suit for eviction on a ground envisaged under Section 10(2)(vi) of the A.P. Building (Lease. Rent & Eviction) Control Act. The Civil Court, thus, had no jurisdiction to entertain the counter-claim. 32. In Kiran Singh and Ors. v. Chaman Paswan and Ors. MANU/SC/0116/1954MANU/SC/0116/1954 : [1955]1SCR117 , it was stated: "...It is a fundamental principle ....