TaxTMI 
TaxTMI 
2011 (6) TMI 1008
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....ng discursive delineation, of the relevant facts absolutely necessary and germane for the disposal of these second appeals, would run thus: (i) The appellant herein/Mani filed the suit O.S.No.104 of 2005 for specific performance of an agreement to sell, with the following prayer: "a) to direct the defendants to execute and register the sale deed in respect of the suit property in favour of the plaintiff at his costs after receipt of the balance of sale consideration of Rs. 2,78,999/- within a time to be fixed by this Court." (extracted as such) (ii) The respondents herein filed the written statement resisting the said suit. (iii) In turn, the respondents herein, namely, Jayavel and 7 others, as plaintiffs filed the suit O.S.No.91 of 2007 for evicting the appellant herein/Mani on the ground that the tenancy in favour of Mani was terminated by the plaintiffs/landlords and that he should vacate and hand over possession. (iv) The following are the reliefs found set out in O.S.No.91 of 2007: "to evict the defendant from the suit property and to order recovery of possession of the same in favour of the plaintiffs, directing to pay ....
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.... "a) Whether the tenancy was subsisting on the date of plaint in O.S.No.91 of 2007 on the file of Sub Court, Kancheepuram? b) Whether the suit for eviction based on the tenancy is maintainable? c) Whether the notice of termination under Ex.A7 is valid in law? d) Whether the respondents are not barred from enforcing any right in respect of the suit property other than the rights conferred under sale agreement Ex.B1 in terms of Section 53A of Transfer of Property Act? e) Whether the jurisdiction of the civil Court is not barred in view of the provisions contained in Tamil Nadu Buildings (Lease and Rent Control) Act 1960? f) Whether the suit is maintainable as framed without proper power or authority?" 5. I hark back to the principles as found embodied in the following judgement of the Honourable Apex Court: (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL; "24. ........(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored mat....
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.... simply treated the possession of Mani as that of tenant and they held as though the said tenancy was terminated etc. (ii) The findings of the Courts below that the agreement to sell was materially altered is not supported by any evidence. Only on conjectures and surmise, the Courts below held as though the agreement to sell was tampered with at the instance of Mani. (iii) The question of ushering in limitation also does not arise as there was no tampering with the agreement to sell. (iv) The Courts below did not take into account the legal position as laid down by the Honourable Apex Court in various decisions. Accordingly, the learned counsel for the appellant would pray for setting aside the judgements and decrees of the Courts below and for decreeing the suit O.S.No.104 of 2005 filed by Mani/the second appellant and for dismissing the suit O.S.No.97 of 2007 filed by the respondents herein. 9. In a bid to torpido and pulverise the arguments as put forth and set forth on the side of the second appellant, the learned counsel for the respondents would advance his arguments which would succinctly and precisely run thus: (a) Ex.B1-the agreeme....
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.... extracted hereunder, "Art.5. Agreement or Memorandum of an Agreement - (a) . . . . . (b) . . . . . . . . (j) If not otherwise provided for; Twenty rupees the appropriate minimum stamp duty payable was Rs. 20, as that has been the law ever since 11.7.2001. Without any demur or objection from any quarter, the said agreement to sell was mechanically marked, which in my opinion was not correct. 14. The implication of Ss.35 and 38 and other provisions of the Indian Stamp Act are well known and axiomatic. Be that as it may; now, it has to be seen as to whether such an agreement to sell was tampered with or not. 15. A mere poring over of the said agreement to sell-Ex.B1 would reveal that corrections were made thereon. The averments including the corrections found in Ex.B1-the agreement to sell vis-a-vis the deposition of Mani-D.W.1, if taken into account, they do not go hand in hand or hang together. The explanation given by Mani tantamounts to putting a square peg in a round hole. 16. D.W.1 Mani the appellant herein, in his deposition would project and portray as though as on the date of purchase of the stamp papers, the said document-Ex.B1 w....
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....thorisedly. 22. It is readily understandable and legally inferable that such corrections relating to the date and the month of execution of a document and the period of performance of the contract contemplated therein should necessarily be taken as material ones and that too in the peculiar facts of this case. The Court cannot be expected to cut some slack in favour of the appellant. In view of such unauthorised material corrections, it was virtually held by both Courts that Ex.B1 had disaster whither all over and that the probability of specifically enforcing it had become a well neigh impossibility. 23. The respondents herein would claim that in fact, the said agreement emerged on 1.12.2002 and the suit O.S.No.104 of 2005 itself was filed on 22.11.2005. According to them only six months' time was contemplated as the period of performance. As on the date of presentation of the plaint, even after excluding the said six months' period, three years limitation period got expired as per Article 54 of the Limitation Act, 1963. As such, the said material alteration affected the very maintainability of the case. 24. The Courts below au fait with law and au courant with fa....
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....te that the said decision has been cited out of context and it would not enure to the benefit of the appellant herein. 27. The learned counsel for the appellant, by inviting the attention of this Court to the averments in Ex.B1 and also the oral evidence on record, would develop his arguement that ever since the date of emergence of Ex.B1, the possession of the appellant got itself converted into one of an agreement holder and not that of a lease holder and accordingly, he would cite the following decisions. (i) (1973) 2 SUPREME COURT CASES 197 ARJUNLAL BHATT MALL GOTHANI AND OTHERS V. GIRISH CHANDRA DUTTA AND ANOTHER, certain excerpts from it would run thus: "5. We are satisfied that both the courts below have arrived at the correct conclusion that there is no evidence at all to justify an inference that the agreement in question was obtained from the appellants under undue influence or coercion. None of the instalments were paid as agreed upon. The application made by the appellants on March 31, 1960, as well as the application made subsequently are patently dishonest attempts at avoiding payment of the instalments as agreed upon. Under clause (5) of the agreement ....
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.... such. Even if it be said to refer to the possession as a tenant the reassertion in the agreement of sale is only for the purpose of denoting possession given in pursuance of this agreement of sale. 6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when the appellants were inducted into tenancy it only means both agreed that their relationship was to be that of landlord and tenant. Later when the landlord decided to sell this property to the tenant and the tenant agreed by entering into agreement, they by their positive act changed their relationship as purchaser and seller. When the seller-landlord accepts the sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change, their relationship of landlord-tenant ceases." (iii) (2006)4 MLJ 1634 S.GURUMURTHY V. N.RAMAN, certain excerpts from it would run thus: "(A) Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Section 10(2)(i) Eviction petition on the ground of wilfu....
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....s, even if it is found to be true, will still be under an obligation to pay the rent to the petitioners. Further, it is settled law that under S.53-A of the Transfer of Property Act the agreement has to be in writing and, even if there was one, mere agreement of sale does not transfer title. In the instant case, even according to the respondent, there was only an oral agreement between him and one of the co-owners. There is no perversity or illegality in the finding of both the Courts below that there has been a default in the payment of rent." (iii) 1996(I) CTC 398 JESSIE THAVAMANI V. LIAKATH BASHA, certain excerpts from it would run thus: "11. In the written statement filed by the second defendant in the above suit (the respondent herein), he has specifically stated that the alleged receipt dated 1.2.1984 would not in any way affect the right, title and interest of the parties and the property purchased by him and the said receipt is not binding on him. Learned counsel for the respondent/landlord has cited a decision of Padmini Jesudurai,J. reported in Kuppulal, B.V.D.Sagunthala, 100 L.W.577, which runs as follows: "Mere agreement of sale will not terminate t....
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....ship of landlady and tenant after the agreement. However, the appellate authority held that notwithstanding the agreement of sale, the relationship of landlady and tenant continued and ordered eviction. On revision against the order. Held: In this case there was no evidence that the parties agreed that the relationship of landlady and tenant should cease and the tenant's possession should be traced only to the agreement of sale. By merely entering into an agreement of sale the tenant did not acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part-performance under Section 53-A, Transfer of Property Act. Even assuming that the petitioner is entitled to the benefit of section 53-A, his liability to pay rent does not cease unless the agreement of sale puts an end to that liability in specific terms. The liability to pay rent, therefore, continued. The default in payment of the rents in the present case was wilful and the requirement of the building by the landlady for the purpose of the business of her son was bona fide. The order of eviction had therefore to be sustai....