M M SELVARAJ Vs. P SINGARAM PILLAI

JUDGEMENT

(1.) THE unsuccessful first defendant before the lower court has preferred this appeal challenging the decree and judgment in O.S.No.123 of 1980 on the file of the Subordinate Judge, Nagapattinam. THE first respondent plaintiff has filed the suit for a declaration that he is entitled to 38/48 share in the suit property and for passing a preliminary decree by appointing a commissioner for division of the plaintiffs share by metes and bounds and for passing a final decree in terms of commissioner's report and allotting the specified portion and putting the plaintiff in the specified portion. At the outset we wish to point out that this appeal is filed challenging the finding of the trial judge in issue 6 with regard to the tenancy rights claimed by the first defendant in the portion of the suit property which has been found against the first defendant. Hence, it is needless to traverse theentire allegations in detail in this appeal and it is enough if the details which are necessary for the disposal of the said issue are set out herein. THE admitted case of both the parties is that the suit property is the superstructure of the share building bearing door No.56 and 57 in Anna Salai (Bazaar St.), Vijayapuram, measuring 522 sq.ft. in T.S.No.991, Ward No.3, Block 23. THE first defendant became a tenant prior to 1960, that is, in or about 1957 in respect of 362 sq.ft. under one Yasin Rowther under an oral agreement. THE plaintiff became a tenant of a portion of the property to the extent of 160 sq.ft. in 1970-71 and has been running a shroff business in the said building. THE first defendant has been doing business in snuff in a portion which has been taken on lease by him. THE suit property originally belonged to one Chevusa Rowther and he had 3 sons and 3 daughters and second wife Ravia Bivi. Through Ravia Bibi, he had two daughters. During the life time of Chevusa Rowther, he executed a registered settlement dated 27. 10.1915. THE suit property has been given to the three sons of Chevusa Rowther, namely, Sultan Mohamed Rowther, Mohamed Gani Rowther and Mohamed Hussain Rowther. Yasin Rowther is the son of Mohamed Hussain Rowther. Defendants 2 to 10 are the widow and the children of Yasin Rowther. THEy are together entitled to 8/48th share. THE plaintiff by means of registered sale deeds dated 1.9.1968, 24.9.1968, 6.3.1969, 12.1.1970 and 11.10.1976 under Exs.A-3 to 6 and 8 purchased 38 shares out of 48 shares from the co-sharers. THE first defendant purchased undivided 2 shares i.e., 2/48 from one of the co-sharers. Thus the plaintiff is the owner of 38/4Slh share and the first defendant is the owner of 2/48th share while defendants 2 to 10 are entitled to 8/48th share. THE plaintiff issued a registered notice dated 27. 12.1979 calling upon the first defendant to agree for an amicable division. THE first defendant issued a reply notice dated 8.1.1980 under Ex.A-9 wherein, though agreed for a partition of the suit property he has put forth a proposal for a division which is not workable. THE plaintiff has given a rejoinder on 18.1.1980 under Ex.A-10. THEreafter he has filed the present suit.

(2.) THE first defendant has given up his contention with regard to quantum of share, later. His maro contention is that he has been inducted into possession as lessee by the former owner of the property, prior to the plaintiffs purchase. His right of occupation and possession of the building is well protected by the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as Act) which is in force in Thiruvarur Town.THE plaintiff can claim only constructive possession and not khas possession. THE second defendant filed a written statement which is adopted by defendants 3 to 6 and 8 to 10, admitting that they are entitled only to 8/48 share. However, they denied the improvements effected by the plaintiff and the first defendant, and prayed that they may be allotted 8/48 share while passing the final decree as they are prepared to pay the court-fees.

(3.) ON the pleadings, the trial court, framed as many as 8 issues. ON the side of the plaintiff, he examined himself as P.W.1 and Exs.A-1 to 13 were marked. ON the side of the defendants, the first defendant examined himself as D.W.I and Exs.B-1 to B.23 were marked. Issue No.7 was not pressed on the joint memo of the parties. Issues 1 and 2 were found in favour of the plaintiff. Under issue No.3 it was held that the first defendant is entitled to 2/48th share. But, since he has not paid court-fee, he is not entitled to partition. Under issue 4, defendants 2 to 10 were held to be entitled to 8/ 48th share. Under issue 5, the trial court held that the various sale deeds in favour of the plaintiff were valid. Under issue 6, which is the subject matter of this appeal it was held that the first defendant is not entitled to the benefits of the Act and this issue was found against the first defendant and in favour of the plaintiff. Consequently, the suit was decreed for partition and separate possession of the suit property and allotting 456/576 share to the plaintiff and 89/576 share to.defendants 2 to 6 and 8 to 10. The parties were directed to bear their respective costs.