NAGESWARASWAMI DEVASTHANAM Vs. N MAHALINGAM

JUDGEMENT

(1.) THE suit has been filed by the appellant-Sri Nageswarasami Devasthanam, Kumba-konam for the possession of the suit property. THE suit was decreed in part by the District Munsif, Kumbakonam. An appeal was preferred against the same before the Subordinate Judge, Kumbakonam in A.S. No. 102 of 1985. THE Sub Judge, Kumbakonam allowed the appeal and dismissed the suit. Hence the second appeal.

(2.) THE lower appellate court ought not to have been interfered with the judgment of the trial Court. THE suit was filed against several defendants for possession. THE property is situate within the Municipal limits of Kumbakonam Town comprised in Town Survey Number 1553-1 & 1540 Acre/.56942 sq.ft. THE plaintiff is the owner of the property. Originally the property was taken on lease for 1363, 1364 and 1365 faslies by one Varadarajulu in 1956, the father of the first defendant for 15 years. As per the finding in A.S. No. 102 of 1985, the plaintiff filed a suit for possession after terminating the tenancy. A notice was given on 8.7.1974 to defendants 2 to 35 in the suit who are sub tenants under the first defendant. THE first defendant contended that he was entitled to the benefits of Tamil Nadu Cultivating Tenants Protection Act as well as the City Tenants Protection Act. THE suit was originally dismissed by the trial Court holding that the first defendant was entitled to the benefits of City Tenants' Protection Act. An appeal was preferred by the plaintiff in A.S. No. 29 of 1982. THE Sub Court held that there was no material to show to which portion of the suit property, the first defendant could claim the protection and of which he is actually in possession and that th e matter cannot be decided and therefore, it was remanded back to the trial court. After remand, the trial court held that first defendant was entitled to only portion marked as "AH" basing upon the commissioner's report, Ex.C-2, therefore, with reference to that portion of the property alone, the plaintiff's suit was dismissed by the trial court. THE trial court held that Tamil THE first defendant preferred an appeal against the decision of the Sub court and the Sub court in entirety dismissed the suit and thus the Second Appeal has come above. THE claim of the first defendant seeking protection under the Tamilnadu Cultivating Tenants' Protection Act was negatived. This decision was not challenged by the first defendant. THE remand was only to find out the possession of the first defendant, so that his claim for protection under Section 11 of the Tamilnadu City Tenants' Protection Act can be considered. THErefore, when it has been held in A.S. No. 29 of 1982 that the 1st defendant was not entitled to the benefit of the Tamilnadu Cultivating Tenants' Protection Act and When the decision has not been challenged by the first defendant by preferring an appeal or by filing a revision as the case may be to the highest forum, it is not open to the first defendant to agitate the same plea against. Nor it is open to the Sub Judge, to go into that question again. THE Sub Judge was not justified in considering that aspect again and therefore, his decision in that regard is beyond his power. THErefore, in that view of the matter, the judgment of the appellate court in A.S. No. 102 of 1985 suffers from grave error. He has no jurisdiction to once again going into the question or decide the same question which has been rendered against the defendant especially when first defendant has not challenged it. Further the first defendant himself is estopped from raising that plea. It was not competent for the court to consider it again.