MEGANATHAN Vs. SUBBIAH GOUNDER

JUDGEMENT

(1.) THE Second Appeal is filed by the appellant-defendant, against the judgment and decree dated 28.10.2002 in A.S.No,31 of 1999 on the file of the Subordinate Court, Udumalpet, confirming the judgment and decree dated 8.4.1999 in O.S.No,226 of 1993 on the file of the District Munsif Court, Udumalpet.

(2.) THE averments in the plaint are as follows: THE suit property absolutely belongs to the plaintiff. He leased out the property to the defendant on 1.1.1990 on a monthly rent of Rs.250/-. THE rent was payable on the first day of every succeeding month. THE defendant used to pay the rent to the plaintiff and obtain receipt from him. THE lease expired on 31.12.1990. THE defendant has been continuing as tenant holding over, under the same terms and conditions. THE defendant has paid advance of Rs.500/- on 1.1.1990 and the same is returnable to the defendant after deducting dues if any payable at the time of delivery of vacant possession of the suit property by the defendant. THE defendant has paid the rent till 1.6.1992. For the tenancy month of July 1992 and subsequent months, the defendant has wilfully defaulted to pay the rent. THE total arrears of rent comes to Rs.2,000/- till January 1993. Inspite of repeated demands made by the plaintiff, the defendant had not paid the arrears of rent. So, the plaintiff has been demanding the defendant to handover the possession. But he was purposely evading the same. Hence, he issued notice dated 10.1.1993 terminating the tenancy and demanded vacant possession of the suit property on 1.2.1993. He did not vacate the premises. But gave a reply notice with false allegations. THE defendant is in wrongful occupation of the suit property. Hence, the plaintiff is entitled for damages of Rs.300/- p.m. from 1.2.1993 for use and occupation until delivery of possession. Since the defendant was denying title to the property, he was constrained to file the suit for declaration that the suit property absolutely belongs to the plaintiff and for recovery of possession and damages from 1.6.1992 till 31.1.1993 at the rate of Rs.250/- p.m., totalling Rs.2,000/- and demanded future damages as Rs.300/- p.m. from 1.2.1993 till delivery and prayed for a decree.

(3.) AT the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration: "(i) Whether the burden is on the plaintiff to prove the extent of the property alleged to have been leased out to the defendant and that the plaintiff having failed to establish the same whether the Courts below are correct in granting the relief in respect of the entire property? (ii) Even there is weakness in the case of the defendant, whether the Courts below are correct in allowing the plaintiff to take advantage of such weakness in his favour?" Substantial questions of law-(i) and (ii):