RAJAGOPAL DOSS Vs. AKUPPUSWAMI MUDALIAR

JUDGEMENT

(1.) These appeals arise out of 14 applications made by the plaintiff-respondent for the issue of a commission to value the improvements effected by the defendants on their holdings. The applications were made under Section 4, Madras City Tenants Protection Act, 3 of 1922. The plaintiff-respondent, who is the owner of re-survey No. 1065/2 had leased out portions of this land to the Adi Dravidas for house sites. In 1929 and 1930 he filed 14 suits in ejectment against them. Then each of them applied to the Court under Section 9 of the Act, for an order that the landlord shall be directed to sell the land for a price to be fixed by the Court. In addition to the sites held by the tenants, there were, on the land pathways, a temple, common latrine, etc., erected by the Adi Dravidas for their common use and enjoyment. The sale of these sites not being in their occupation could not be asked by the tenants. As they wanted these also sold to them, they arrived at an understanding with the plaintiff under which it was agreed that they should buy up all the sites for a certain sum. This was advantageous to the plaintiff as well. Eventually, the back portion of the plot which contains 100 cocoanut trees was left out by consent and a Commissioner was asked to value the rest of the land leaving out the aforesaid portion. The defendants presented a petition to the Court praying for an order directing them to pay jointly a certain sum to the plaintiff for the entire land leaving out the aforesaid portion.

(2.) The Commissioner valued the land at a sum of Rs. 650 per ground. The amount payable by each of the defendants for their sites was estimated at this rate. The so-called roads were valued at Rs. 250 per ground, and each tenant was asked to pay 1/14 of the total amount. Thus according to this calculation, each tenant had to pay for hi;; share Rs. 690-7-2 in addition to his own site value. The Court passed an order directing all the defendants in the suits to pay jointly a certain sum to the plaintiff as the market value of the sites and a decree was passed in accordance with those terms. Payments were not made in due time and accordingly though the petitions stood dismissed under the law for non-payment, applications for extension of time were made by the defendants. Under Ex. E dated 10 January 1932 time was extended 15 July 1932 and again on the latter date time was extended until 20th September 1932. As no amount was paid by the defendants, the applications out of which these appeals arise were filed by the plaintiff under Section 4 for the valuation of the improvements. The tenants opposed the applications stating that the order passed by the Court calling on the parties to pay the value of the entire site was not an order under Section 9, City Tenants Protection Act, and that it is still open to them to avail themselves of that section and that they must be allowed to have their sites bought separately. The learned Judge overruled this contention saying that the order under Section 9 already passed was final; and as the tenants have failed to comply with the provisions of the decree, he held that the respondent is entitled to eject them on payment of the value of the improvements.

(3.) In appeal Mr. Bhashyam on behalf of the defendants-appellants in addition to the above grounds urged in the lower Court urged also another ground, viz., that subsequent to the adjustment the parties entered into another arrangement under which the appellants had to pay only for a portion of the suit land giving up the remaining portions in favour of the plaintiff and that this arrangement should be given effect to. This arrangement was referred to in the affidavit, Ex. E-l, in support of the application for extension of time filed on 15 July 1932 (Ex. E). The request in the application was only to grant some time for payment and nothing was said about the enforcement of the agreement. The agreement having regard to its details, see para. 5 of the counter affidavit on respondent 2 in C.M.P. 1109 of 1933, is one which the Court will find it difficult to enforce. The argument that the agreement should be given effect to was not raised in the lower Court. For these reasons we cannot allow the question to be raised here for the first time. The question for consideration is whether the applications under Section 9 made by the defendants still remain undisposed of as contended for by them. If they have been disposed of as held by the lower Court, then the petitions of the respondent under Section 4 should be allowed and the appeal should be dismissed. The order passed by the Court was All the defendants will pay the whole amount as fixed by the Commissioner. In default of payment of any portion thereof, all the defendants will forfeit their right to purchase the plaintiff's property.