M. THOMAS PILLAI Vs. SESU AMMAL AND OTHERS

JUDGEMENT

(1.) The plaintiff in O. S. No. 407 of 1972 on the file of the Court of District Munsif, Trichirapalli, is the appellant in the above second appeal. The suit O.S.No. 407 of 1972 came to be filed for a declaration that the plaintiff is a lessee of the suit property and consequently for recovery of possession of the suit property from the plaintiff with future profits. The case of the plaintiff is that he was a tenant of the suit property which belonged to the defendants on a monthly rent of Rs. 27.00, that he was doing business for the past 26 years, that with a view to circumvent the provisions of the Rent Control Act, he was creating all sorts of pin-pricks and problems and the defendants trespassed upon the suit property in the last week of Dec., 1972 after the dismissal of C.M.A. 124 of 1972 on the file of the District Court, Trichy, in connection with the application for temporary injunction filed by the plaintiff and since the defendants have also denied the leasehold right of the plaintiff in respect of the suit property, the plaintiff was driven to the necessity for filing the suit for the relief as noticed supra. The defendants contended that the suit claim proceeds upon false claims that he was not in possession of the suit property on the date of suit in any capacity much less as a tenant and the plaintiff took only a portion of the suit property on lease which is the front portion measuring 10' x 10' and the rear portion of the suit property was not at all leased out to the plaintiff and therefore the plaintiff never remained in possession of the entire suit property. A part from stating that the plaintiff was not regular in the payment of rents and that he was also not carrying on the cycle shop business, it was contended that the plaintiff requested the first defendant to waive the claim of rent and since the defendants refused, the plaintiff on his own accord vacated the premises and gave vacant possession of the said leased portion to the first defendant on 11-1-1972 after paying the arrears of rent due for Nov. and Dec., 1971 and that after taking possession of the suit property from the plaintiff the defendant stored cement bags over the same and he was constructing the other portions and for such constructions the suit property was bolted aside and the plaintiff has not at all placed anything in the suit property. The claim of tenancy rights under the Rent Control Act has also been disputed and denied by the defendants on the ground that the plaintiff was not in possession of the suit property at any time after 11-1-72 and particularly on the date of the suit and that the object of the plaintiff was to somehow extract money from the defendants under some pretext or the other. It was the further plea of the defendants that the suit property is not in the same condition and position as it was at the time when the plaintiff was a tenant and therefore, the plaintiff was cot entitled to possession.

(2.) On the above claims and counter-claims the suit came to be tried and oral and documentary evidence was adduced by both sides. The learned trial Judge by his judgment and decree dated 4-8-1977 held that the plaintiff miserably failed to prove that he was continuing in possession of the suit property on the date of the suit and if not till the end of Dec., 1972 and in view of the same, the suit has :o be necessarily held as barred by limitation having been filed long after the expiry of six months contemplated under Sec. 6 of the Specific Relief Act, 1963. The plea of voluntary surrender also has been sustained. On the above conclusions, the suit came to be dismissed.

(3.) Aggrieved, the plaintiff pursued the matter n, A.S. 93 of 1978 before the Sub-Court Originally A.S. No. 55/78 on the file of the District Court) and the learned subordinate judge while holding that there had been no voluntary surrender as claimed by the defendants non-suited the plaintiff only on the ground of limitation on the view that the suit filed beyond the period of six months from the date of dispossession cannot be said to be in time and therefore the claim was barred by limitation. Hence the above second appeal.