NAGASAMY AIYAR Vs. PERUMAL AIYAR

JUDGEMENT

(1.) Section 43 of the Civil Procedure Code is clearly inapplicable and is no bar to the suit. The former suit was based on a specific lease for a term of years, which being unregistered, was inoperative. The former suit, therefore, was rightly dismissed on that ground. The former suit was really one for possession, not for an injunction. A prayer for an injunction to the defendant to have a house, is really nothing more than a prayer for possession.

(2.) It was also found in that case that payment of rent was proved and that there was thus a tenancy from month to month which was not terminated.

(3.) The present suit is one for possession based upon title, and therefore on a cause of action different from that on which the former suit was based. Section 43 therefore cannot bar the present suit. The District Munsif in this case finds that the defendants occupy the house as plaintiff's tenants which is really in accord with the finding in the former case that the tenancy is one from month to month. The plaintiff bases the suit on title but does not aver how the tenancy has terminated. The District Munsif therefore instead of dismissing the suit on the ground that the defendant's tenancy has not been terminated, gave a decree for the plaintiff on the strength of his title. The appellant contends referring to the judgment in the former case that the defendants denied the plaintiff's title and thus forfeited the tenancy. If so, the plaintiff's remedy, if any is by suit for ejecting the tenant on the ground, that the tenancy has determined and not by a suit on title as owner. We therefore uphold the decree but on this ground only and dismiss the second appeal with costs.