V RATNAM Vs. S S ARUNACHALAM CHETTIAR

JUDGEMENT

(1.) The decision in this appeal and the memorandum of cross-objections revolves on a short compass. One Vellachami Chettiar, Pichaikutti Chettiar and Arunachalam Chettiar were owning the suit property until January 1964, when for purpose of convenience the said Vellaichami Chettiar and Pichaikutti Chettiar let out the suit premises to the first defendant for purposes of his business. But at all times it was the intention of the co-owners to have a partition effected but the urgency and need of the first defendant was felt and recognised by the other two co-owners and with that object in view they stipulated that they could only let out the premises for a period of three years which satisfied the first defendant as well. It was in those circumstances the first defendant entered into possession of the suit property in or about January 1965. In December 1964 Vellaichami Chettiar died leaving behind him the plaintiffs 1 to 4 as his legal representatives. After the expiry of the original period of demise, apparently at the desire of one of the co-owners, plaintiffs 1 to 4 and the fifth plaintiff who admittedly owned two-third interest in the suit property sought for partition and separate possession of the plaint property which was denied. They therefore came to court by filing a suit for partition and separate possession and incidentally sought for accounting from the first defendant for the value of various zinc sheets which they allege were removed by the first defendant when he was in possession of the suit property.

(2.) The first defendant in the main resisted the suit for partition on the ground that he was a tenant in occupation of the building within the meaning of Act 18 of 1960 and that even though the plaintiffs in common law were entitled to a right to sue for partition, yet by reason of the statutory law which protected the interests of tenants, the plaintiffs were not entitled to separate possession of the plaint mentioned property. It was this plea which was put in the forefront by the first defendant who whilst conceding the rights of the plaintiffs to their two third share in the common property, resisted their claim for possession. As regards t incidental relief of accounting sought for against him, the first defends denied that he ever removed any zinc 'sheets from the quondam proper demised to him and on the other hand pleaded that he put in zinc sheet of his own into the property and improved it and if in any event plaintiffs' claim as to possession was sustainable should be paid the such improvements made to he quondam property. Defendants 2 and are interested in the suit property by reason of an inter se arrangement between themselves and the first defendant, but we are not however concerned with their interests in the suit property.

(3.) The learned trial Judge on the above material pleadings framed the following issues -