IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 19.09.2011 Coram The Honourable Mr. Justice R.S.RAMANATHAN Second Appeal No.865 of 2011 and M.P.No.1 of 2011 S.Banumathi ... Appellant/Appellant/1st Defendant ..Vs.. 1. K.Janaki Ammal 2.E.R.Santhanam ... Respondents/Respondents/ Plaintiff and 2nd Defendant . . . Prayer: Second Appeal filed under Section 100 of C.P.C against the decree and judgment dated 19.11.2010 in A.S.No. 66 of 2009 on the file of the learned I Additional Subordinate Judge, Erode confirming the decree and judgment dated 08.09.2009 in O.S.No. 597 of 2008 on the file of the learned principal District Munsif, Erode. For Appellant : Mr.I.C.Vasudevan For Respondents : Mr. R.Manimuthu (R1) . . . J U D G M E N T The unsuccessful first defendant in O.S.No.597 of 2008 on the file of the learned Principal District Munsif, Erode is the appellant. The plaintiff and the first defendant are the respondents herein. 2. The first respondent/plaintiff filed the suit for eviction of the defendants from the suit property and hand over the vacant possession of the same to her. 3. The case of the first respondent/plaintiff was that the suit property belonged to one Backiammal and she settled and executed a Will dated 25.11.1960 giving life estate in favour of her husband and thereafter, to her adopted son, by name Kandasamy and his wife Janakiammal, the plaintiff and thereafter, the absolute right to the children born to Kandasamy and Janakiammal. Thus, under https://hcservices.ecourts.gov.in/hcservices/ the said Will, the first respondent/plaintiff has got life estate over the property. The appellant being her daughter was allowed to live in a portion of the suit property and according to the first respondent, the appellant agreed to pay the rent, and thereafter, she failed to pay the rent. Therefore, the first respondent/plaintiff has filed a petition for eviction in R.C.O.P.No.12 of 2003 and that petition was allowed. As against the same, the defendants filed an appeal in A.S.No.9 of 2007 before the learned Principal Subordinate Judge,Erode and the same was dismissed. As against the same, defendants have preferred a revision in C.R.P.No.1187 of 2008 before this court. This court allowed the revision holding that there was no relationship of landlord and tenant between the first respondent and the appellant. During the pendency of the Rent Control Proceedings, the appellant has filed O.S.No. 236 of 2003 for injunction stating that she has right to reside in the suit property and she should be evicted only by due process of law and the said suit was dismissed. Thereafter, the present suit was filed for recovery of possession by the first respondent/plaintiff. 4. The suit was contested by the appellant stating that the appellant had vested interest in the suit property and after the life time of the first respondent, she is entitled to 1/3 share in the suit property and she is occupying a small portion when compared to the portion occupied by them and out of hatred, the suit was filed by the mother. 5. The trial Court decreed the suit and also ordered mesne profits of Rs.1,000/- p.m from the date of the plaint till date of handing over the vacant possession and the same was confirmed by the first appellate Court. Hence the present Second Appeal. 6. The learned counsel for the appellant submitted that the Courts below erred in granting mesne profits in the absence of any prayer to that effect. He further submitted that in a suit for eviction, proper notice has to be given and notice was given before initiation of the Rent Control Proceedings and thereafter, for filing the suit for eviction, no notice was given and therefore, the first respondent cannot take advantage of the notice already given before initiation of the Rent Control Proceedings, and she has to issue a fresh notice before initiating the present suit and in the absence of any notice the suit is not maintainable. He also relied upon the judgment of this Court rendered in S.A.No.1493 of 1991 dated 07.02.1994 in the case of Kazhugumalai Raj and another Vs Rajapalayam Palayapalayam, wherein the learned Judge in similar circumstances held as follows: "Once the proceeding initiated under the TNBLRC Act goes, all such steps taken towards instituting the eviction proceedings also would go including the notice issued in the year 1981 under E.A.2 and therefore when the plaintiff contemplates to initiate a fresh https://hcservices.ecourts.gov.in/hcservices/ proceeding under the relevant provisions of the CPC filing a suit for eviction of the tenant, the specific notice as contemplated under Section 106 of the Transfer of Property Act is a must and only in such event, the other side i.e. the tenant would be in a position to get ready within such time contemplated by law either for eviction acting in consonance with the notice or for opposing the same." Therefore, the learned counsel for the appellant submitted that the suit without proper notice is not maintainable. 7. It is further contended by the learned counsel for the appellant that even though in the decree it is stated that the relief sought for included the prayer for past and future mesne profits, in the plaint it was not prayed for. 8. I am unable to accept the said contention of the learned counsel for the appellant. It is seen from the decree of the trial Court that the suit was filed for recovery of possession and for past mesne profit of Rs.12,000/- and future mesne profits at the rate of Rs.1,000/- per month and Court-Fee was also paid for the same. Having regard to the decree of the trial Court wherein it was specifically stated that the suit was filed for recovery of possession with past and future mesne profits and court fees were also paid for both the reliefs, I hold that the first respondent/plaintiff had prayed for past and future mesne profits and considering the same, the trial Court has granted Rs.12,000/- for past mesne profits and Rs.1,000/- per month for future mesne profits from the date of the plaint. 9. It is the contention of the learned counsel for the appellant that the notice issued for initiating Rent Control Proceedings cannot be taken advantage of by the first respondent, since the Rent Control Proceedings ended in favour of the appellant and therefore, fresh notice ought to have been given under Section 106 of the Evidence Act in the suit. He also relied upon the judgment of this Court cited supra in support of his contention. I am unable to accept the view taken by the learned Judge of this Court and insofar as the facts of the present case are concerned, there is no need for issuing a fresh notice. It is well known that before initiating proceedings under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, no notice is necessary. Further, the Transfer of Property Act does not distinguish between the notice issued for eviction under the provisions of Transfer of Property Act or under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, after issuing notice for eviction of the tenant, the landlord can file Rent Control Prodeedings on the basis that the person in occupation is the tenant and later on, when the rent control proceedings were terminated either on the ground that the building was not covered under the provisions of the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Buildings (Lease and Rent Control) Act or there was no relationship of the landlord and the tenant between the parties,there is no need to issue fresh notice for evicting the person in occupation under the common law. 10. Further, in this case, there is no need to issue notice. Admittedly, the appellant is not the tenant under the first respondent and this Court has also held in revision that no relationship of landlord and tenant existed between the parties. When the appellant is not the tenant, there is no need to terminate the tenancy by issuing notice. Hence, the contention of the learned counsel for the appellant that proper notice was not given and therefore, the appellant cannot be evicted, cannot be accepted. Hence, I do not find any merit in the contention of the learned counsel for the appellant. 11. Both the Courts have rightly granted a decree as prayed for and I do not find any reason to interfere with the concurrent findings on facts and there is no substantial question of law arises for consideration in this appeal. 12. It is submitted by the learned counsel for the appellant that the appellant may be given one years' time for vacating the suit premises and that was strongly opposed by the learned counsel for the first respondent. The learned counsel for the first respondent submitted that the first respondent is an aged woman and she wants to live with her son in her own premises and therefore, three months' time may be given to vacate and hand over vacant possession of the suit property. 13. Considering the fact that the appellant is in occupation of the property and she also happens to be the daughter of the first respondent and she is only occupying a portion of the property that was given to her by the first respondent to be enjoyed during her lifetime, I am inclined to grant time till 30.06.2012 for handing over the vacant possession on condition the appellant filing an undertaking affidavit within 15 days from the date of receipt of a copy of this judgment to hand over the vacant possession of the property and also agreeing to pay past mesne profits of Rs.12,000/- and future mesne profits at the rate of Rs.1,000/- per month as awarded by the trial Court from the date of plaint till the date of delivery of possession. The arrears of mesne profits including the amount of Rs.12,000/- being the past mesne profits, upto 30.09.2011 shall be paid on or before 31.01.2012 and if any default is made by the appellant, it is open to the first respondent to execute the decree without any reference to the time granted by this Court. 14. In the result, I find no merit in the Second Appeal and the same is dismissed. However, the appellant is granted time till 30.06.2012 for handing over the vacant possession on condition the https://hcservices.ecourts.gov.in/hcservices/ appellant filing an undertaking affidavit within 15 days from the date of receipt of a copy of this judgment to hand over the vacant possession of the property and also agreeing to pay past mesne profits of Rs.12,000/- and future mesne profits at the rate of Rs.1,000/- per month as awarded by the trial Court from the date of plaint till the date of delivery of possession. The arrears of mesne profits including the amount of Rs.12,000/- being the past mesne profits, upto 30.09.2011 shall be paid on or before 31.01.2012 and any default is made by the appellant, it is open to the first respondent to execute the decree without any reference to the time granted by this Court. There shall be no order as to costs. Connected miscellaneous petition is closed. pal Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Principal District Munsif, Erode 2. The I Additional Subordinate Judge, Erode. + 1 cc to M/s. I.C. Vasudevan, Advocate SR No.58658 + 1 cc to Mr. R. Mani Muthu, Advocate SR No.57932 RSI(CO) SR/20.10.2011 S.A.No.865 of 2011 https://hcservices.ecourts.gov.in/hcservices/