R. GOVINDAN Vs. USHA SHANMUGAPRIYA

JUDGEMENT

(1.) Defendant in O.S. No. 4798 of 1977 on the file of City Civil Court, Madras, is the appellant. Plaintiff is the sole respondent herein. Plaintiff filed the suit for directing the defendant to deliver vacant possession of the property described in B schedule after demolishing the superstructure put up by him, and to direct him to pay a sum of Rs. 6,400 towards damages with interest at 6% p.a., from date of plaint till date of realisation, and for costs. Plaintiff in her plaint would state as follows: She is the owner of Door No. 54/A. Edward Elliots Road, Madras which was bequeathed to her by late Mrs. T. Nallamuthu Ramamurthi by her will dated 21-6-1972 which has been probated in O.P. No. 145 of 1974 on the file of High Court. Madras on 21-4-1975. Defendant is in occupation of a portion of the property on the eastern side of the house measuring about 1200 sq. ft. He was not a tenant under the plaintiff, and his possession cannot be treated to be of any proper origin. There was no jural relationship of landlady and tenant between plaintiff and defendant. He claims to have been let into the possession by the Executrix appointed under the will, and since the Executrix had no authority under the will to deal with the property to the prejudice of the rights of legatee, in law whatever had been done by Executrix would not be binding upon plaintiff. After plaintiff was put in possession of the property by the Executrix, defendant was called upon to deliver possession of the property, and he replied that he is a lessee of the property, and therefore vacant possession cannot be demanded as long as he pays rents for the premises. He had put up a shed for running the business of motor repairs. He cannot set up a right of tenancy against the plaintiff since he had no vestige of right to be in possession of the property. His possession not being lawful, and as the running of the business as motor mechanic is a constant nuisance and annoyance to plaintiff, and the members of his family, defendant made a gesture of compromise evidently to prolong his stay in the land, and plaintiff bona fide thought that he would be good to his word and vacate the land as undertaken by him. A notice dated 11-5-1987 was ultimately sent calling upon him to deliver vacant possession. There was no reply nor he surrendered possession. The cause of action for the suit arose on 21-4-1975 when probate was granted and on subsequent dates when plaintiff made demand on the defendant to deliver vacant possession of the property and for damages. Hence, the suit came to be filed.

(2.) Defendant in his written statement would state as follows: It is true that the suit property belonged to one Mrs. Nallamuthu Ramamurthi, who had left behind a will dated 21-6-1972 and with was probated, and that the mother of plaintiff Mrs. C.R. Ranganayaki was the Executrix under the will. She leased out the disputed area of the property to defendant. By letter dated 5-2-1976, she had informed this defendant that she had handed over possession of the property in his occupation to his daughter. A copy of the said letter was sent to the plaintiff. Hence, he started paying rent to the plaintiff, but she refused to receive it. The claim that Executrix had no power to lease out the property is erroneous, because under S.307 of the Indian Succession Act, executrix had power to even dispose of the immovable property vested in her. The suit as filed, claiming that defendant is a trespasser is not maintainable. Plaintiff was well aware of the lease, and only with her knowledge, the suit property was leased out to the defendant by the Executrix. Even at the time of probate of the will dated 21-6-1972 no objection was raised by the plaintiff against the action taken by Executrix. Defendant has put up light roofings with wooden support for shade and is running an automobile workshop. The nuisance claimed does not exist. An attempt was made to influence the Corporation authorities for removing the superstructure put up by him. It was only by approaching the High Court, defendant could secure the necessary relief. A compromise was entered on 3-2-1977 in and by which, plaintiff agreed to provide alternative accommodation in the building belonging to plaintiff's aunt situated just behind the property under the defendant's occupation, but she went back upon her word. There is a clear admission therein that defendant was the tenant. Having accepted his status as tenant, she is estopped from contending that there is no jural relationship of landlord and tenant between them, and therefore, the suit as filed is not maintainable. In conclusion, in para 8, he would state that "plaintiff has admitted the defendants as her tenant and under law he cannot be evicted without following the due process of law". Finally in para 9, he concludes by stating:

(3.) Both the trial Court and the learned Judge in A.S. No. 883 of 1980 having concurrently decreed the suit claim with damages at Rs. 3,200 and with proportionate costs, this Letters Patent Appeal came to be filed.