V X JOSEPH Vs. M SARASWATHI

JUDGEMENT

(1.) THE suit is for recovery of possession from the defendants 1 and 2 in respect of Schedule I property and from the third defendant regarding Schedule II property and for damages for use and occupation at the rate of Rs.1,000/-per month for 21 months as regards Schedule I property and at Rs.500/- per month for 21 months as regards Schedule 2 property and also for permanent injunction against the defendants from demolishing and reconstructing or alienating the property.

(2.) THE case of the plaintiff is as follows:(i) THE plaintiff is the owner of the front portion of premises No.282, S.N.Chetty Street, facing the street having purchased the same from Dr.Pasupathy in the year 1978 and put up four storeyed building. Behind the said property, in respect of a shed situated to the West in Survey No.282, S.N.Chetty Street originally the plaintiff was the tenant and along with the said superstructure in an area of 475 sq.ft., he claims to have purchased a vacant space of 250 Sq.ft and also towards West a kutcha structure with tiled roof of an area of 525 Sq.ft let out to the 2nd defendant by Dr.Pasupathy, totally 1250 Sq.ft. He entered into an agreement of sale on 14.7.1980 and in pursuance of the said agreement, he paid a certain sum of money as advance. THE 2nd defendant undertook to vacate the premises on the completion of the sale by getting Rs.5,000/- from the plaintiff. However, the vendor Dr.Pasupathy failed to complete the same, which necessitated the plaintiff to file a suit in O.S.No.1689 of 1981 on the file of the City Civil Court, Madras for specific performance of the agreement of sale dated 14.7.1980. THE suit was dismissed. On an appeal filed by the plaintiff in A.S.No.349 of 1983, he succeeded in getting the relief of specific performance and the judgment in A.S.No.349 of 1983 is Ex.P.1. Inspite of the said decree, Dr.Pasupathy failed to execute the sale deed and so the plaintiff had to file proceedings in E.P.No.400 of 1994 on the file of the City Civil Court, Madras and got the sale deed executed by the Court on 23.11.1995 under Ex.P.2 registered with the Sub Registrar Office, Royapuram as Document No.74 of 1996.(ii) Pending the proceedings, Dr.Pasupathy put up superstructure in the open space in an area of 250 Sq.ft described as Schedule II and let out to one Gerard as Dr.Pasupathy was in dire need of money and adopted various means by putting up sheds and letting out for rent and one such property in 1982 was let out to Gerard. Taking advantage of the financial crunch faced by Dr.Pasupathy, the 2nd defendant created a lease deed allegedly executed by Dr.Pasupathy and settled his leasehold right to his wife, the 1st defendant herein. Based on the said settlement, the 1st defendant maneuvered to get the property tax in her name. On coming to know, a complaint was given by the plaintiff to the Commissioner, Corporation of Chennai and after giving opportunity to the first defendant, the ownership was transferred in the name of the plaintiff, which is comprised in property tax Book Ex.P.3 series. In and around 1982 January, the said Gerard vacated the shed and let out to the 3rd defendant, who was already having his oil shop in the neighbourhood. Based on the documents obtained by the defendants 1 and 2 from Dr.Pasupathy, they claimed title to the Suit Schedule I Property, though they have no manner of right or title to the said property and they were only the tenants under Dr.Pasupathy. Since the defendants were not willing to attorn tenancy under the plaintiff, the latter issued notice dated 22.8.1997 through his counsel under Ex.P.4 to the defendants 1 and 2 and the notice sent to the defendants is Ex.P. 5. THE defendants 1 and 2 sent reply denying the claim made by the plaintiff under Ex.P. 6. THE value of the property is more than Rs.30 Lakhs and the defendants have not paid any rent to the plaintiff for years together. (iii) THErefore, the plaintiff claims damages for use and occupation from December 1985. Since the plaintiff is the owner of the entire suit Schedule properties 1 and 2, he has sought for recovery of possession from the defendants 1 and 2 and the defendant 3 respectively. As the plaintiff apprehended that the defendants may demolish the superstructure and erect new structures thereon, he has also prayed for relief of permanent injunction as against the defendants 1 to 3.

(3.) THE following issues were framed for determination:1." Is the claim of the defendants that they are the tenants in respect of the vacant land of the plaint Schedule mentioned property, true?. 2. Whether the defendants are tenants entitled to the rights under the City Tenants Protection Act?. 3. Does not the transfer of the alleged lease by the second defendant to the first defendant by way of settlement under Document No.1507 of 1989, disentitle the first defendant from claiming rights under the City Tenants Protection Act?. 4. Is the first defendant entitled to purchase the land from the plaintiff and if so what is the area that the defendants would require for their convenient enjoyment of the property?. 5. Is the suit against the 3rd defendant bad for want of issuance of notice under section 11 of the City Tenants Protection Act?. 6.Are not the defendants liable to vacate and deliver possession of the Schedule mentioned properties?. 7.To what reliefs are the parties entitled to?Issue Nos. 1 and 2