PALAYAMMAL Vs. I.DHANAMMA

JUDGEMENT

(1.) The fourth defendant in the original suit is the appellant in the second appeal. The suit was originally filed by the deceased first plaintiff Jacob for recovery of possession and damages for use and occupation in respect of the suit property, namely the building bearing Door No.20/1, Perumal Koil Garden, 6th Lane, Sowcarpet, Madras 600 079 comprised in Old S.No.3668 and ReS.No.7854. The suit was filed against all the 7 respondents arraying them as Defendants 1 to 7. The first respondent/first defendant Muthammal is the mother of the other respondents, namely Defendants 2 to 7. Contending that Muthammal was the tenant in respect of the suit property and other defendants being members of the same family were residing together with the first defendant Muthammal; that following due process of law, the deceased first plaintiff Jacob filed a Rent Control Original petition before the Rent Controller, got an order of eviction, executed the eviction order and thus got delivery of possession of the suit property on 04.05.1994 and that within a day thereafter, namely on 05.05.1994, the defendants trespassed into the property, the deceased first plaintiff Jacob filed the suit in O.S.No.8663 of 1994 for recovery of possession and also for recovery of damages for use and occupation at the rate of Rs.50/- per day.

(2.) After the filing of the suit and before its disposal, the original plaintiff Jacob died and his legal representatives Dhanamma, Jaya, Anitha and Prabhakaran got impleaded as plaintiffs 2 to 5. Subsequently Prabhakaran died and the surviving plaintiffs being his legal heirs perused the remedy sought for in the suit by the original plaintiff. Among the seven defendants, the present appellant, who figured as fourth defendant, alone contested the suit and rest of the defendants remained exparte. The appellant, who happened to be the only contesting defendant, filed a very short written statement contending that the other defendants, namely defendants 1 to 3 and 5 to 7 were not necessary parties; that the suit was barred under Section 47 and 144 of the Civil Procedure Code; that the trial Court did not have the jurisdiction to grant the relief of damages; that regarding the very same property, two previous suits, namely O.S.No.3823 of 1994 and O.S.no.5594 of 1994 had been filed by the 4th defendant and that the present suit, being a vexatious and frivolous one, was liable to be dismissed with exemplary cost.

(3.) Based on the above said pleadings, the trial Judge framed four issues which are as follows: