S.BALAN Vs. SABITHA PRASAD

JUDGEMENT

(1.) THE second defendant, who is only a tenant in respect of the suit property, is the appellant in the second appeal. The suit was filed by the first respondent against the second respondent for partition claiming that each one of them was entitled to = share in the suit property. Since admittedly the appellant is in possession as a tenant of the suit property, he was made a party defendant and arrayed as the second defendant as a proper party which may pave the way of attornment of tenancy in respect of the portions allotted to the sharers.

(2.) AFTER trial, the learned trial Judge accepted the case of the plaintiff and passed a preliminary decree holding her entitled to = share in the suit property and directing division of the suit property into two equal shares and allotment of one such share to the first respondent herein/plaintiff. The appellant herein, having been arrayed as the second defendant, perhaps due to inappropriate advice, chose to file a written statement claiming benefits under the provisions of the City Tenants' Protection Act and also prayed for reimbursement of the amount equivalent to the improvements allegedly made by him in case of his eviction from the suit property.

(3.) THE questions - "whether the appellant/second defendant who is a tenant, is entitled for protection under the provisions of the City Tenants' Protection Act? whether he had made any improvements and whether he is entitled to recover the value of improvements made by him from the first respondent / plaintiff or the second respondent/first defendant or from both", are not germane to a suit for partition between the first respondent/plaintiff and the second respondent/first defendant, who alone are the co-owners of the suit property, especially when the position of the appellant/second defendant as a tenant is admitted and no prayer for eviction of the tenant has been made. The appellant/second defendant seems to have made an unnecessary plea in the written statement. Had he taken such a plea in support of a counter claim, then this Court can understand the propriety of making such a plea. Not even a counter claim was made by the appellant/second defendant. When that is so, the pleading regarding the entitlement of the benefits of protection under the City Tenants' Protection Act including one for reimbursement of the value of the improvements made by the tenant would not arise especially when eviction has not been sought for. As such, the finding given by the trial Court that the appellant/second defendant is entitled to the benefits of provision of the City Tenants' Protection Act is only a mere finding which has not been made the basis of the decree.