SUNDARA RAJAN Vs. SUNDARAMOORTHY

JUDGEMENT

(1.) PLAINTIFFS are the appellants in this second appeal. They filed the suit O.S.No.1951 of 1978, on the file of the District Munsif of Cuddal-ore, for declaration of their title to the suit property and for possession thereof. They claim title under Ex.A-3 sale deed dated 23.8.1977. The trial Court has upheld their title and also held that the alleged prior sale agreement in relation to the suit property between the defendant-respondent and the plaintiffs" vendor Krishnamoorthy Rao, is not true and that the defendant is a tenant of the suit property. So saying, the trial Court decreed the suit for declaration of title and possession and directed the defendant to remove the superstructure put up by him on the suit land within two months.

(2.) HOWEVER, in the appeal filed by the defendant, viz., A.S.No.122 of 1981 on the file of Sub Court, Cuddalore, the defendant was allowed to file additional written statement. There, he pleaded that he became a tenant of the suit site under the above said Krishnamoorthy Rao and put up the superstructure thereon. He also claimed benefits under the Tamil Nadu City Tenants Protection Act (hereinafter referred to as "the Act") and sought to purchase the suit site under Sec.9 of the Act. In view of the said additional written statement, the following fresh issues were framed in the appeal:

(3.) NEXTLY, as already pointed out, the lower appellate Court has dismissed the suit solely on the ground that the abovesaid Sec.11 notice was not given by the plaintiffs to the defendant prior to the filing of the suit. In this connection I posed the question to the learned counsel for the respondent whether it cannot be construed that there is a waiver by the defendant of the abovesaid notice, in view of the fact that he has chosen to file the abovesaid additional written statement, claiming to purchase the suit land under Sec.9 of the abovesaid Act. This Court has held in more than one decision that filing of application under Sec.9 of the Act would amount to such a waiver of notice under Sec.11 of the Act (vide Vedachala Naicker v. Durai Mudaliar, (1950)1 M.L.J. 732 and Natesa Naicker v. Vedagiri, (1975) 1 M.LJ. 301. No doubt, in the present case, there is no application as such, filed under Sec.9 of the Act. But, since it has also been held that even the written statement which claims right under Sec.9 could be treated as such an application, the question in the present case is whether there is a waiver of Sec.11 notice by the defendant, by his claiming the right under Sec.9 in his abovesaid additional written statement. It has also been hold in Balasubramama Iyer v. S.P.Muthu Kumaraswamy Devasthanam, (1983)1 M.L.J. 280, that since the abovesaid notice under Sec.11 is for the benefit of the tenant, he could waive the said notice.