SADACHEE AND OTHER Vs. PATTU SALIYA RAMAKRISHNANDA

JUDGEMENT

(1.) This Second Appeal has been directed against the decree and judgment in A.S. No. 3 of 1998 on the file of the Court of Subordinate Judge, Kumbakonam, which had arisen out of a decree and judgment in O.S. No. 249 of 1996 on the file of the Court of District Munsif, Valangaiman at Kumbakonam. The defendants in the Suit is the appellants herein.

(2.) The averments in the Plaint relevant for the purpose of deciding this Second Appeal in brief runs as follows:

(3.) The first defendant has filed a written statement contenting that a bare Suit for possession of the building is not maintainable. The Plaintiff has to prove who are all the present trustees of Bajanaimadam. The Plaintiff is not the absolute owner of the Plaint schedule building. The Plaint schedule building has been constructed by late Ganapathi Mudaliar in the year 1940. He died in the year 1986. The first defendant has three sons by name Mariappan, Lakshmanan and Kannappan. The second defendant's son died on 20.01.1990. In one portion of the suit building, Kannappa Mudaliar was residing with his family and in another portion he had been running a mutton shop. Now, the Mutton shop is being run by the first defendant. The second defendant is nothing to do with the suit property and he has been living separately with his family for the past about 20 years. The alleged lease deed said to have been executed on 17.08.1959 and 17.08.1960 are not true and the validity of the same is questioned. The documents should have been obtained from the husband of this defendant deceiving him. The Mutton stall has been regularly run earlier by Ganapathi Mudaliar and on his death, run by the first defendant and her son. It was never leased out to a Muslim gentleman. The Plaintiffs has obtained document from Ganapathi Mudaliar representing him that his manai is owned by the Plaintiff. They have been collecting rent from late Ganapathi Mudaliar only towards the 'manai pahuthi' (site) and not for the building. Ganapathi Mudaliar till his life time was paying rent only for the 'manai' and not for the building. For the purpose of running the Mutton shop, Ganapathi Mudaliar was engaging persons for assisting him in the business. The building was not sub leased to Ganapathi Mudaliar. Since Ganapathi Mudaliar was the absolute owner of the building, he has got every right to sublease the building also. The alleged hand letter dated 21.12.1985 has not been admitted by this defendant. At no point of time, Ganapathi Mudaliar agreed to vacate the building and there was no necessity for him to give a hand letter. The allegation that Ganapathi Mudaliar became the tenant of the building in the year 1960 is not correct. Ganapathi Mudaliar is in possession and enjoyment of the suit property for well over a period of 40 years by constructing a building out of his own costs. The lease agreement pleaded by the Plaintiff is denied. The arrears claimed is not correct. Two months prior to the notice issued by the Plaintiff a sum of Rs. 200.00 was paid by the son of the first defendant Kannappan towards the 'manai pahuthi'. When a receipt was demanded, the Plaintiff told the defendants that only after executing a rent deed stating that the building was owned by the Plaintiff and that the defendants are tenants thereof, the receipt can be given, for which the defendants were not willing. Because of the refusal of the defendants to execute a rent deed, the Plaintiff issued a notice making false allegations and setting up the tenancy in respect of the suit building. The 'manai' itself is in a poramboke area. The alleged default in the payment of rent as pleaded by the Plaintiff is denied. There is no cause of action to file the Suit. The Suit is liable to be dismissed. The 4th defendant has adopted the written statement filed by the first defendant.