AMBIKA AND ORS. Vs. M. SHAMSHAD AND ORS.

JUDGEMENT

(1.) Defendants in the suit filed by the respondents herein, have filed this Second Appeal challenging the judgment and decree dated 22.07.2010 in A.S. No. 7 of 2009 passed by the First Appellate Court / Subordinate Judge, Tambaram wherein and by which the judgment and decree dated 30.08.2006 passed by the trial Court / District Munsif, Tambaram, in O.S. No. 156 of 2003, were reversed allowing the First Appeal at the instance of the plaintiffs, who filed the suit for recovery of possession.

(2.) According to the plaintiffs / respondents herein, two adjacent plots, viz., Plot Nos. 35 and 36 which belong to the Tamil Nadu Slum Clearance Board [for short, 'Board'], were allotted to them for which they had also paid the first instalment on 21.7.1995 and as there was an intention that the plots would be allotted free of cost, they did not pay any further sum. Thereafter, on demand by the Board, they paid the entire amount in instalments subsequent to which on 02.9.2003, they were given the allotment order by the Chairman of the Tamil Nadu Slum Clearance Board. It is stated that a Lease cum Sale Agreement dated 24.8.2003 was entered into as per which the plaintiffs have to pay Rs.67/- per month with effect from 01.3.1997 for a period of 20 years. While so, according to the plaintiffs, the defendants had encroached the properties during February 2003 and despite their request, the defendants refused to vacate the premises. Hence, they filed the suit for recovery of possession.

(3.) The first defendant traversed the plaintiffs' claim and set up the case in the written statement that the defendants are in actual possession of the property and that she had filed a suit in O.S. No. 43 of 2003 against the father of the second plaintiff and obtained a decree for permanent injunction on 16.9.2003. It is stated that in the said suit, the father of the second plaintiff had deposed that he has not claimed any right over the suit property and that he has nothing to do with the same besides admitting possession of the defendants. The defendants also contended that the suit is not maintainable by virtue of the bar under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 [hereinafter, referred to as 'the Act'] and that the Board ought to have been made as a necessary party to the suit. Further contending that the suit for eviction is not maintainable in the absence of prayer for declaration of title, the defendants sought for dismissal of the suit.