NATESAN PILLAI Vs. SETHUMANI AMMAL

JUDGEMENT

(1.) THE only point raised in this appeal is as to the maintainability of the suit filed for declaration of plaintiff's title and for possession has been decreed and the defendants have filed this appeal.

(2.) THE case of the plaintiffSethumani Ammalis that she is the owner of the suit property. Plaintiff's father Rajanga Nadar who was managing the property had let it out defendant on a rent of Rs.75 per mensem for one year. Even after the period of the the defendant continued in possession. He paid rent till November, 1978 and thereafter 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 father filed R.C.O.P.No.17 of 1981 on the file of the Rent Controller (District Chidambaram. In that proceedings the defendant denied the tenancy and he claimed the property under an alleged agreement of sale. In view of this stand taken defendant she did not prosecute the eviction petition further and she withdrew the same 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 THE petition was dismissed as withdrawn on 5.9.1983.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 possession. THE defendant's possession is that of a trespasser and he has no legal be in possession. He is also liable to pay mesne profits from December, 1978, plaintiff restricts that claim for a period of three years prior to the suit. At the rate of per mensem the plaintiff has claimed past mesne profits of Rs.3,600 and she has claimed future mesne profits.

(3.) IN this case, in fact, the plaintiff has filed R.C.O.P.No.17 of 1981, but however, that the defendant has denied the tenancy and claimed right to the property by virtue alleged agreement of sale, sought to withdraw the petition and the petition was accordingly dismissed as withdrawn.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 denial of title by the defendant and that denial is bona fide. Therefore at that stage landlord need not have withdrawn the petition and ought to have pursued it. This being case the present suit is not competent.