ESAKKI Vs. SUBRAMANIA AIYER

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree of the learned Principal Subortinate Judge, Tirunelveli, in A. S. No. 41 of 1983 dated 31. 7. 1984 in confirming the judgment and decree of the learned District Munsif, Ambasamudram, in O. S. No. 984 of 1979 dated 30. 4. 1983.

(2.) THE defendant is the appellant in the above Second appeal. THE plaintiff/respondent herein filed O. S. No. 984 of 1979 contending that the suit house belongs absolutely to him, that the defendant had taken the premises on lease on a monthly rent of Rs. 10 payable in every English calendar month, that inasmuch as there were arrears of rent, the plaintiff filed a suit in O. S. No. 617 of 1975, that in that suit the defendant contended that he was liable to pay only Rs. 5 per month as per Tamil calendar month. THE trial Court accepted the contention of the defendant and granted a decree for eviction. THE defendant filed an appeal before the Sub-Court, Tirunelveli, in A. S. No. 177 of 1978 and the lower appellate Court allowed the appeal and agreed with the contention of the defendant that the rent was payable only as per Tamil calendar month. THEreafter the plaintiff had sent lawyer's notice to the defendant demanding rent, and claiming arrears of rent and also for possession. However, in the reply of the defendant, he claimed that he was entitled to the protection of the Tamil Nadu Rural Artisan, (Conferment of Ownership of kudiyiruppu) Act, 1976 (hereinafter called "the Act") and that he was approaching the authority under the Act and as such no further action can be taken by the plaintiff. However, the plaintiff contended that the defendant was not entitled to the protection of the said Act and that the defendant was in possession of cultivable lands and therefore, not entitled to get protection of the said Act. Consequently, the plaintiff prayed for eviction of the defendant from the premises and for recovery of possession and also for arrears of rent.

(3.) IN support of his contention, learned counsel also relied on a judgment reported in, Kalyanasundaram Udayar v. Pazhaniayya Udayar, 1982 (95) LW 562. IN the said decision a Division Bench of this Court was dealing with the issue arising out of bar of jurisdiction of the Civil Court under Section 23 of the Tamil Nadu Occupants of Kudiyiruppu, (Conferment of ownership) Act, 1971. The judgment of the Division Bench came to be delivered in the context of the different views said to have been expressed by two learned single Judges. On the facts arising out of that case it was decided by the Division Bench. The suit was resisted by the defendant on the ground that he was a tenant entitled to the benefits of the Act and that the notice to quit was not valid. The trial Court held that the defendant was entitled to the benefits of the said Act and dismissed the suit. On appeal, the lower appellate court held that the defendant had prima facie shown that he was a tenant under the plaintiff in respect of the suit site and that he was entitled to the benefits of the Act, but still the plaintiff was entitled to a decree for possession subject to the rights of the defendant if any under the said Act. The said view of the lower appellate Court was based on the decision of N. S. Ramaswamy, J. in, Ganesan v. Madurai Achari, 1978 (91) LW 6.