RAJAMMAL DIED Vs. IDOL OF SRI THANTHONNEESWARASWAMI

JUDGEMENT

(1.) THE defendant is the appellant. She having died pending this second appeal, her legal representatives have been brought on record as appellants 2 and 3. THE respondent, the idol of Sri Thanthoneeswarasami by its hereditary trustee, K. Appathurai , filed the suit o. S. No. 430 of 1978 on the file of the District Munsif of Tiruchira-palli for possession of the suit land after removal of the superstructure put up therein by the defendant and for a sum of Rs. 144. THE suit was dismissed so far as the possession relief is concerned, but decreed only with reference to the abovesai d money claim for Rs. 144, which was claimed as arrears of rent at the rate of rs. 4 per month, that is, for three years, till date of the plaint, viz. , 27. 3. 1978. THE case of the plaintiff is that suit house (with land) was leased out to the defendant while the case of the defendant is that only suit vacant site was leased out and the defendant put up the superstructure therein.

(2.) THE defendant mainly claimed benefits under the Tamil Nadu City Tenants' ; Protection Act, 1921 (hereinafter referred to as'the Act' ; ). THE trial Court after holding that the lease was only of the site and that the superstructure was that of the defendant , held that the defendant was not entitled to the benefits of the Act on the ground that the defendant did not establish that the tenancy began prior to 1955. But it held that the defendant's possession was protected in view of the decision in S. Palanivelu v. K. Varadammal , (1978)1 M. L. J. 212. On that reasoning, the possession relief was negatived by the trial Court. Further, in the appeal filed by the plaintiff in A. S. No. 95 of 1981, on the file of the lower appellate court, the lower appellate court set aside the judgment and decree of the trial Court and allowed the appeal, directing the defendant to deliver possession of the suit land after removing the abovesaid superstructure on the land. THE lower appellate court did not deal with the question of the abovesaid arrears at all. THE lower appellate court did not also deal with the question whether the defendant was entitled to the benefits of the Act, but only held that as a leasee , the defendant was bound to deliver possession of the suit site, after removing the superstructure.

(3.) ON the other hand, the learned counsel for the respondent-plaintiff contends that the abovesai d decisions cited require reconsideration and that the defendant having not filed a separate application under Sec. 9 of the Act, cannot claim benefits of the act.