RAMESH ENTERPRISES Vs. ARULMIGU EKAMBARANATHAR THIRUKOIL KANCHEEPURAM

JUDGEMENT

(1.) THE second appeal is filed by defen-dants4 and 5 in O. S. No. 6804 of 1981, on the file of V Assistant Judge, City Civil Court Madras . THE sole respondent herein is the plaintiff- Temple represented by its Executive Officer. He filed the suit for recovery of possession, making eight defendants as parties. It is alleged in the plaint that the first defendant is a tenant of the schedule properties on his paying a monthly rent of Rs. 200. Plaintiff- temple is exempted from the provisions of rent Control Act and, therefore, the tenancy is governed by Transfer of property Act only. It is further said that defendant 2 onwards are occupying different portions of the Schedule building as sub-tenants under first defendant. In paragraph 4, it is said that before the institution of the suit, the Trust Board was reconstituted, and first defendant was informed that it is exempted from the purview of Rent Control Act. First defendant, admitting his guilt of earning of more than Rs. 3,000 by sub-letting the building to various tenants, agreed that he will pay Rs. 200 as monthly rent to plaintiff for the portion in which he was in occupation, and agreed that the sub-tenants may attorn directly to plaintiff. Defendants 2 to 7 paid a rental advance for one month and this fact was communicated to the first defendant on 5. 8. 1980. Plaintiff thought that the first defendant may go back from his words and, therefore, the amount collected from plaintiff was kept in suspense account without appropriating the same in any account. As expected, first defendant issued a notice on 11. 9. 1980 demanding for return of the entire amount collected by plaintiff and also for reviewing the arrangement pleaded. THErefore, plaintiff issued a notice terminating the tenancy of the first defendant and calling upon him to vacate the premises. After termination, it is alleged that the possession of the defendants is unlawful and, therefore, they are liable to pay damages for use and occupation.

(2.) IN the written statement filed by first defendant, it contended that he is the chief-tenant and defendants 2 to 8 are sub-tenants. He also denied the arrangement pleaded in paragraph 4 of the plaint. IN fact, the case put forward by first defendant was, that the Executive Officer of the plaintiff- Temple without any reason, coerced the tenants by threat of dispossession. He said that sub-tenancy is permitted as per the original arrangement, and he never agreed that defendants 2 to 7 may attorn the tenancy to the first defendant.

(3.) THE appeal preferred by defendants 4 and 5 was disposed of by the IV Additional Judge, City Civil Court, Madras, on 4. 12. 1987. Long after the disposal of that appeal, first defendant preferred A. S. No. 179 of 1988, challenging the decree of the trial court. Without reference to the appeal filed by defendants 4 and 5, the 8th Additional City Civil Judge, madras, before whom the appeal filed by first defendant came for hearing, allowed the appeal, setting aside the judgment and decree of the trial court. He remanded the suit to enable the plaintiff to amend the plaint In A. S. No.)79 of 1988, the lower appellate court held that from the pleadings, it can be inferred that there is an implied surrender and, therefore, plaintiff is entitled to recover possession of only that portion of the property which is in the hands of first defendant, and also such of those defendants who remained ex parte during trial. Regarding other defendants, including defendants 4 and 5, the learned Judge held that there is direct tenancy with plaintiff, and since their tenancy has not been terminated, plaintiff is not entitled to recover possession from them. He directed the trial court to permit the plaintiff to amend the plaint so as to the identify those portions of the property which are in the possession of the respective defendant so that a decree for recovery could be granted for specific portions. THE order of remand is challenged by plaintiff in the connected C. M. A. No. 723 of 1990.