P R PONNUSAMI Vs. GNANAPRAKASAM

JUDGEMENT

(1.) TWO questions are raised by learned counsel for the appellant, whose claim for the benefits under Tamil Nadu City Tenants Protection Act has been negatived concurrently by the Courts below: (1) The prayer in the plaint is for declaration of the title of the plaintiffs and the 2nd defendant and for recovery of the vacant site after removal of superstructure. According to learned counsel once the prayer for recovery of vacant site after removal of superstructure is made, it follows automatically that the appellant is entitled to the benefits under Tamil Nadu City Tenants Protection Act and the courts below are right in negativing the same. There is no merit in this contention. In the very same paragraph 14 in the plaint, it is categorically stated that the first defendant who is the appellant herein, is deemed to be a trespasser as per the law as he denied the title of the landlord in all respects and he cannot get any benefit under the Tamil Nadu City Tenants Protection Act. In view of the said specific plea of the plaintiffs, it cannot be stated that the plaintiffs have conceded the right of the appellant to the benefits under the Tamil Nadu City Tenants Protection Act. It is incorrect to contend that as the suit is for recovery of possession of vacant site the defendant is entitled to the benefits under the Tamil Nadu City Tenants Protection Act. It is the specific case of the plaintiffs that the first defendant is not entitled to the benefits under the Tamil Nadu City Tenants Protection Act. Yet, they want to recover only the vacant site and not the superstructure. There is nothing in law which prevents the plaintiffs from praying for such relief. The courts below have found concurrently that in view of the specific denial of the title long before the suit under Ex.A-5, dated 11.11.1974, the defendant is not entitled to the benefits of the Act. In that reply notice marked as Ex.A-5, the first defendant- has stated, "Your are not the owner of the property in which my client is running his business." There cannot be a more categorical denial of the title of the plaintiffs.

(2.) THE second contention is that members of other branches of co-owners have not been impleaded as parties, learned counsel has stated that the plaintiffs not having relied upon the principle that some or one of the co-owners can recover possession from the third party on behalf of all the co-owners, have chosen to implead some of them after objection has been raised in the written statement. According to learned counsel, the second defendant has been impleaded only after such objection was raised and once the plaintiffs have complied with the plea, there is necessity to implead all the co-owners and it cannot be said that they can maintain the suit without impleading all the co-owners. THEre is no merit in this contention also. Just because the plaintiffs have chosen to implead some of the co-owners and omitted other co-owners, the first defendant cannot claim that the suit is bad for non-joinder. So far as the first defendant is concerned, he is only a trespasser, not being entitled to the benefits under the Tamil Nadu City Tenants Protection Act or the Tamil Nadu Buildings (Lease and Rent Control) Act. Some of the co-owners can pray for recovery of possession of the property on behalf of all the co-owners. Who are entitled to the property. In fact, in the plaint the right of all other co-owners has been admitted and there is no denial of co-ownership. THE principle laid down by the Division Bench of this Court in Thimmayya v. Siddappa, A.I.R. 1925 Mad. 63: 75 I.C. 112 will apply to this case and there is no question of the suit failing on the question of non-joinder of parties. 3. No other contention has been urged before me. All other questions are only questions of facts and I do not find any error in the judgments of the courts below. THE evidence has been discussed and appreciated properly and there is no infirmity in the same. THE second appeal fails and the same is dismissed. No order as to costs.