BALAMMAL Vs. M LAKSHMANA NAICKER

JUDGEMENT

(1.) THE plaintiff is the appellant. She died during the pendency of this appeal and her legal representative, appellants 2 and 3 continue the appeal. For the sake of convenience, the plaintiff alone will be referred to in this judgment.

(2.) THE suit was for a declaration that the plaintiff is the absolute owner of the property described in the plaint Schedule and that the defendant is her tenant of the premises and is not entitled to any rights of a 'tenant' under the Madras Act III of 1922 (as amended) in respect of the plaint schedule property and also for a decree against the defendant for arrears of rent. The suit property is described as house, ground and premises now bearing municipal door No. 34-A, Bangaru Reddy St, Corporation Dn No. 44, Madras bearing R. S. No. 28/4 measuring east to west 83 ft. and north to south 411/2 ft. together with the structures thereon. The defendant contended that he came into occupation of the premises about 44 years ago, that in or about 1940 the defendant attorned to the plaintiff's step-brother, about 28 years back, the old ricketty, dilapidated mud construction was completely washed away, that immediately thereafter the defendant was permitted to continue as a tenant of the land only on a monthly rent of Rs. 5 and that the defendant was permitted to put up superstructures thereon. He further contended that accordingly he spent considerable sums of money and put up three superstructures (brickwalled constructions and zinc sheet shed) on the land leased in the hope and assurance that he will not be evicted therefrom, that he has been very regular in the payment of rents and that thus he is the owner of the superstructure and the plaintiff cannot lay claim to the buildings. His further contention was that he is entitled to the benefits of, and protection under, the madras City Tenants Protection Act.

(3.) THE trial Court, on the issues framed in the suit, came to the conclusion that the suit is maintainable, that the defendant is a tenant of the building as such, that he is not entitled to the benefits of the Madras City Tenants protection Act and that he is liable to pay rent for the superstructures. On appeal, the Additional judge, city Civil Court, observed that the plaintiff has failed to claim the relief of possession and held that the suit is not maintainable. As regards ownership of the building, the lower appellate court held that the building that originally existed on the suit land fell down completely in the year 1942-43, that when the land was lying vacant, the defendant took it on lease and constructed the present building in or about 1943-44 and that the defendant is a tenant of only the land. On these findings, the lower appellate court dismissed the suit for declaration filed by the plaintiff-appellant. Aggrieved by the judgment and decree of the lower appellate court, the plaintiff has preferred this appeal.