D KADER BATCHA Vs. GORIPALAYAM DARGA

JUDGEMENT

(1.) The defendants 3 to 8 and 10 aggrieved against the order passed in E.A.No. 880 of 1991 in E.P.No. 277 of 1988 in O.S.No. 16 of 1976, dated 15.4.1993, on the file of the learned District Munsif, Madurai Town, have filed the above Revision.

(2.) The respondent filed the suit in O.S.No. 16 of 1976 for ejectment. The suit property is a vacant site measuring 49' east-west on the northern side, 48' east-west on the southern side, 46' north-south on the eastern side and 27' north-south on the western 'side in old T.S.No. 1285/1, new T.S.Nos. 3643/3 and 4. According to the respondent/plaintiff, the vacant site was taken on lease by the first defendant, one Dawood Sahib from the plaintiff on 1.7.1956. The suit property forms part of Goripalayam Darga burtal ground and so it is a wakf property. According to the plaintiff, the first defendant is not entitled to the benefit of the Madras City Tenants Protection Act since the commencement of lease was from 1.7.1956, and the suit property is a wakf property. The first defendant filed a written statement that the suit- property is not a burial ground, and he became a lessee of the suit property in 1950. Pending the suit, the first defendant filed a petition in O.P.No. 12 of 1976 under Section 9 of the City Tenants Protection Act. In the said petition, it is specifically stated that the property in question was originally assessed as Door No. 21, Goripalayam Pallivasal Street and later it was numbered as Door No. 33. According to him, he is entitled to the benefits under the City Tenants Protection Act. In the counter filed in the said O.P., the plaintiff has specifically stated that the vacant site leased out, forms part of Goripalayam Darga burial ground, and it is a wakf property, and it is inalienable in law, and so the City Tenants Protection Act does not apply to the suit land.

(3.) The learned District Munsif in the judgment dated 14.10.1983 held that the property ought to have been put up prior to 1953 and the suit property is not part of Goripalayam Darga burial ground and so the first defendant is entitled to the benefits of the City Tenants Protection Act. Aggrieved against the same, the plaintiff filed appeal in A.S.No. 263 of 1984 against the dismissal of the suit and C.M.A.No. 52 of 1984 against the order in the O.P. The lower appellate court found that the vacant site was leased out to the first defendant on 1.7.1956 and the same forms part of Goripalayam barga Burial ground. On the basis of the abovesaid finding, the lower appellate court came to the conclusion that the suit property cannot be alienated and so the first defendant is not entitled to any right under the City Tenants Protection Act.