GANESA NAIDU Vs. CMALLARAM SINGH

JUDGEMENT

(1.) This is an appeal from the decree of the City Civil Judge, Madras, dated 2nd February, 1935, in O.S. No. 783 of 1934 a suit for ejecting the defendants and for recovery of possession of the plaint property. According to the plaintiff the site on which the plaint superstructure stands belonged to one Abdul Huq and the defendants were the tenants of the site who had put up the suit superstructure thereon and were paying a rent of Rs. 1-13-0 per month. The plaintiff purchased the site from Abdul Huq on 15 October, 1934. Some months earlier in execution of a decree of the Small Causes Court the superstructure belonging to the defendants had been sold and purchased by the plaintiff himself on 5 May, 1934. The plaintiff therefore claimed to be the owner of the house as well as the site and on the strength of this title to the house and the site he claimed to recover possession of both. The superstructure was purchased by the plaintiff on 5 May, 1934, and immediately thereafter on the strength of this purchase, in Court-auction, of the superstructure, he instituted a suit for ejecting the defendants, namely, O.S. No. 346 of 1934. In that suit the lower Court held that the plaintiff had not become, by reason of the purchase of the superstructure, the purchaser of the leasehold right of the defendants and that his only right was to pull down the superstructure and take away the materials. That finding-is res judicata as no appeal was filed from the judgment of the lower Court in that suit, and it may be mentioned here that it was only a few days before the judgment in that suit was pronounced that the site itself was purchased by the plaintiff on 15 October, 1934. It is clear therefore that the plaintiff is not entitled by reason of his purchase of the superstructure in Court auction in execution of a Small Cause Court decree, to eject the defendants and his claim to eject the defendants must therefore be rested on the rights which he acquired by reason of the purchase of the land itself from the owner Abdul Huq.

(2.) This is indeed clear from a consideration of Section 28 of the Presidency Small Cause Courts Act. In any case the matter is now res judicata by reason of the decision of the lower Court in O.S. No. 346 of 1934. A number of issues were framed by the lower Court in the present suit and the suit was decreed, all the issues being found against the defendants and in favour of the plaintiff.

(3.) In the present appeal by the defendants it is sufficient to consider only one question, namely, the question covered by issue No. 2 in the Court below which runs as follows: Is the suit not maintainable for want of proper notice?