VALLIAMMAL Vs. S ARUMUGHA GOUNDER

JUDGEMENT

(1.) THE above appeal is against the judgment and decree made in A.S.No. 32 of 1994 on the file of the Subordinate Judge, Gopichettipalayam dated 21.8.1995 which itself was preferred against the judgment and decree made in O.S.No. 265 of 1987 on the file of the District Munsif Court, Sathyamangalam. THE plaintiff Valliammal who succeeded before the trial court but last before the first Appellate Court, is the appellant in this second appeal.

(2.) THE plaintiff filed a suit for recovery of possession by making the following averments: THE suit schedule property as only a vacant site originally belonged to one Sivasubramania Sastriyar. Said Sivasubramania Sastriyar demised the property on lease in favour of one Kalianna Gounder for a period of one year on an annual rent of Rs.360. THE first defendant is the brother of the said Kalianna Gounder. As per the agreement Kalianna Gounder has agreed to receive the amount to be paid by the landlord namely Sivasubramania Sastriyar as compensation for the superstructure to be put up by the lessee at the time of termination of the lease or eviction. THE lease deed was executed by Kalianna Gounder in favour of Sivasubramania Sastriyar on these terms. In pursuance of lease Kalianna Gounder and the first defendant were put in possession of the suit property. Kalianna Gounder alongwith his brother the first defendant was doing business jointly and so the first defendant also was in possession and enjoyment of the property pursuant to lease. After Kalianna Gounder died, the first defendant continu ed to do the business being the lessee in possession of the property. THE plaintiff's husband one late Muthusamy Gounder had purchased the suit vacant site from Sivasubramania Sastriyar for valuable consideration of Rs.15,000 as per the sale deed dated 29.6.1962. Muthusamy Gounder had also taken assignment of the lease dated 7.3.1962. Muthusamy Gounder died on 9.2.1983 leaving behind the present plaintiff and the children.

(3.) MUTHUSAMY Gounder filed an earlier suit in O.S.No. 481 of 1963 for recovery of possession and arrears of rent. In the said suit, the relief of recovery of possession sought for by MUTHUSAMY Gounder was denied. MUTHUSAMY Gounder did not prefer any appeal against the denial of the said relief but only preferred, appeal in A.S.No.3 of 1966 with regard to arrears of rent, compensation etc. Since MUTHUSAMY Gounder did not prefer any appeal against the denial of relief of recovery, the present plaintiffs is barred by res judicata from claiming the relief of possession. MUTHUSAMY Gounder chose to file RCOP.No.6 of 1966 praying for eviction of the first defendant and Kalianna Gounder. MUTHUSAMY Gounder has elected himself to choose his remedy by proceedings under the Madras Buildings (Lease and Rent Control) Act. It is not open to him to claim possession under the Transfer of Property Act. The present suit is barred by res judicata and also barred by rule of estoppel and also rule of election. Even in case of eviction, the plaintiff is liable to pay more amount than what has been fixed in the earlier suit as compensation to the defendants. The value has to be determined afresh even if the Court comes to the conclusion that the first defendant is liable to surrender possession. The arrears claimed is not correct. The plaintiff has not issued any notice terminating the lease of the first defendant'as required under Section 106 of the Transfer of Property Act. The suit is therefore bad for want of Section 106 notice. The defendants 2 and 3 have nothing to do with the suit property. The Will alleged to have been executed by MUTHUSAMY Gounder is not true and genuine. The Will was not executed by MUTHUSAMY Gounder while he was in a sound and disposing state of mind. No probate has been obtained in respect of the Will. Without obtaining probate, the plaintiff cannot maintain the suit. The Tamil Nadu City Tenants Protection Act, 1921 was extended to Sathyamangalam Municipality from 31.1.1973 and this defendant is entitled to the protection given to tenants under City Tenants Protection Act. The first defendant is entitled to get compensation in accordance with the provisions of the City Tenants Protection Act in respect of superstructure standing in the suit vacant site.