V ARUNACHALAM Vs. V V GOVINDASAMY MUDALIAR

JUDGEMENT

(1.) THE tenant, who lost his case before the courts below is the appellant in this second appeal. The first respondent herein has filed O. S. No. 204 of 1981 before the District Munsif Court, Mayiladuthurai praying for recovery of possession, recovery of arrears of rent and for damages. The trial court decreed the suit as prayed for and on appeal, the first appellate court confirmed the decree and judgment of the trial court and dismissed the appeal filed by the appellant herein, hence, the present second appeal.

(2.) BEFORE the trial court, the first respondent herein has marked Exs. A1 to A3 and examined his son, third respondent herein as PW1. The appellant herein has not marked any document, however, he examined himself as DW1. The trial court originally appointed an advocate commissioner to note down the physical features of the suit property and the advocate commissioner has also filed his report and sketch dated 31. 08. 1981, which were marked as Exs. C1 and C2. Subsequently, at the instance of the appellant herein, another advocate commissioner was appointed and he has also filed his report and sketch dated 13. 01. 1994 under Exs. C3 and C4.

(3.) THE facts which are relevant for disposal of this second appeal are that the first respondent herein has leased out the suit property, vacant land to the appellant herein under Ex. A1 dated 01. 06. 1964 with a right to put up superstructure. The appellant herein has canvassed before the trial court that there is a superstructure in the suit property and the first respondent herein, without giving any notice as contemplated under Section 11 of the City Tenants Protection Act has filed the suit, hence, the same is not maintainable in Law. In support of this contention, the appellant herein has pointed out that the first respondent herein has prayed not only for surrender of possession but also for removal of superstructure put up by him.