Judgment:
Bellie, J.
1. The only point raised in this appeal is as to the maintainability of the suit. The suit filed for declaration of plaintiffs title and for possession has been decreed and therefore the defendants have filed this appeal.
2. The case of the plaintiff Sethumani Ammal is that she is the owner of the suit property. Plaintiffs father Rajanga Nadar who was managing the property had let it out to the defendant on a rent of Rs. 75 per mensem for one year. Even after the period of the lease the defendant continued in possession. He paid rent till November, 1978 and thereafter he stopped payment. The plaintiff issued notice calling upon the defendant to surrender possession but he would not do so raising false contentions. The plaintiff along with her father filed R.C.O.P. No. 17 of 1981 on the file of the Rent Controller (District Munsif), Chidambaram. In that proceedings the defendant denied the tenancy and he claimed right to the property under an alleged agreement of sale. In view of this stand taken by the defendant she did not prosecute the eviction petition further and she withdrew the same so that she could file a suit for recovery of possession. The petition was dismissed as withdrawn on 5.9.1983. Now the plaintiff has filed, this suit for declaration of title and recovery of possession. The defendant's possession is that of a trespasser and he has no legal right to be in possession. He is also liable to pay mesne profits from December, 1978, but the plaintiff restricts that claim for a period of three years prior to the suit. At the rate of Rs. 150 per mensem the plaintiff has claimed past mesne profits of Rs. 3,600 and she has also claimed future mesne profits.
3. The defendant contested the suit contending that he was never a tenant. It is further contended that in or about 1970 the plaintiffs father who was a close friend of the defendant permitted him to be in the suit property. Later in the year 1976 the defendant came to know that the plaintiff is the owner of the property. They said that the property was for sale. The defendant offered to purchase it. After negotiation the price was fixed at Rs. 10,000 and a sum of Rs. 5,000 was paid as advance on 21.8.1976and the balance amount of Rs. 5,000 was agreed to be paid at the time of the execution of the sale deed and completion of the transaction. The defendant was always ready and willing to perform his part of the contract but the plaintiff and her father had been evading the execution of the sale under some pretext. Therefore the suit for his eviction is not maintainable.
4. The trial court rejected the case of the defendant that there was an agreement of sale. It also disbelieved the plaintiffs case that the defendant is a tenant. But finding that the plaintiff is the owner of the property and the possession of the defendant is illegal he decreed the suit for declaration and possession and also for past mesne profits of Rs. 1,800 and he relegated the future profits to an enquiry under Order 20, Rule 12, C.P.C.
5. Now the only point that is argued in this appeal by Mr. S. Parthasarathy, learned Counsel for the appellant-defendant is that the suit is not maintainable because when it is the case of the plaintiff that the defendant is a tenant her only remedy is to seek for his eviction under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act and not by way of a suit. This plea of course has not been taken in the trial courts but being a question of law relating to the jurisdiction of the court this point can be argued in the appeal.
6. It is the definite case of the plaintiff that the defendant is a tenant. Now, as per Section 10(1) of the Act a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 14 to 16. Therefore it is imperative that the plaintiff has to initiate proceedings for eviction against the defendant in a Rent Control Proceedings. To this Section 10(1) an exception is provided under the second proviso according to which where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial of title is bona fide, and if he records a finding to that effect the landlord shall be entitled to sue for eviction in civil court and the Court may pass a decree for eviction on any of the grounds mentioned in the said section notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
7. In this case, in fact, the plaintiff has filed R.C.O.P. No. 17 of 1981, but however, stating that the defendant has denied the tenancy and claimed right to the property by virtue of an alleged agreement of sale, sought to withdraw the petition and the petition was accordingly dismissed as withdrawn. There was no finding of the Rent Controller as to whether there was denial of title by the defendant and that denial is bona fide. Therefore at that stage the landlord need not have withdrawn the petition and ought to have pursued it. This being the case the present suit is not competent.
8. Mr. Parthasarathy, in support of his contention has relied on a judgment of the Supreme Court East India Corporation Ltd. v. Shree MeenakshiMills Ltd. : [1991]2SCR310 , wherein at paragraph 8 it is laid down as follows:
What is stated in the second proviso to Section 10(1) is the sole circumstance in which the civil court is invested with jurisdiction in matters of eviction. But this jurisdiction cannot be invoked otherwise than as stipulated in the second proviso. This means that the condition precedent to the exercise of jurisdiction by a civil court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the Controller must . record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a civil court. Where these conditions are satisfied, the civil court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16 notwithstanding that the court has found that the tenant's denial of the landlord's title does not involve forfeiture of the lease, or, his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the civil court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.
In paragraph 9, towards the end, it is again stated:
What is significant is that the decision of the controller, duly recorded by him, as regards the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the civil court. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the section is, therefore, incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect.
9. Another thing that requires consideration is whether the defendant has really denied the title of the plaintiff. This is not clear from the plaint averments. In the written statement also in one place it is stated that the plaintiffs title is not denied, but in another place the defendant seems to claim title by adverse possession. The counter filed in the Rent Control petition has not been marked in the suit. But even if the defendant has not disputed title of the plaintiff and he has only disputed the tenancy, then it is all the more reason that the plaintiff will not have right to file the present suit, and he ought to have proceeded with the rent control petition.
10. Mr. K. Srinivasan, learned Counsel for the respondent-plaintiff raised a doubt as to how he can again go to the Rent Control court inasmuch as the civil court has now held that the defendant is not a tenant. But as seen above, according to the Supreme Court since the suit is incompetent the decree is null and void. Therefore there is no need for this doubt. In this view of the matter the judgment and decree of the trial court cannot be sustained and hence the appeal is allowed and the suit is dismissed, but in the circumstances there will be no order as to costs.