C VENKATACHARIAR Vs. CRANGASWAMI AYYANGAR

JUDGEMENT

(1.) The plaintiff is the appellant. He purchased the plaint village of Bojinaickampatti (or Posinaickenpatti) from Narasimhalu Naidu who acted on behalf of himself and his brother. They made the said sale as Mittadars in 1901 under Exhibit III. Plaintiff had formerly brought a suit for rent against the defendants, who had obtained a Kayam Saswatham lease in 1839 from the original Mittadars. That suit for rent was Original Suit No. 988 of 1904. In that suit, the defendants (the Kayam Saswatham lessees) denied that the plaintiff was the owner of the Mitta and denied also the title of the plaintiff s vendors, Narasimhalu Naidu and his brother, to sell the property to the plaintiff. They set up the title of Venkatarama Naidu (the father of the plaintiff s vendors) who had parted with his rights in favour of his sons in 1897. The first Court decreed that suit of 1904 brought for rent, overruling the lessees objections and establishing the title of the plaintiff as landlord. The lessees appealed, denying again in the Appellate Court the plaintiff s title as landlord and continued such denial notwithstanding that Venkatarama Naidu (the father of the plaintiff s vendors, who had been made a party to the suit) mentioned in an application made to the Appellate Court that he did not want any longer to contest the plaintiff s title in that particular suit, and his name was thereupon removed from the record on his expressing the intention of putting an end to the plaintiff s title afterwards by instituting a future suit for cancellation of the deed executed by him in favour of his sons. The lessees failed in the appeal also and yet they preferred a second appeal again denying the plaintiff s title as landlord. On these facts, and also on the allegation that before filing of the present suit in ejectment (on the ground of forfeiture by denial of the landlord s title by the defendants) the plaintiff sent a notice to the defendants on the 25th January 1908 requiring them to deliver up possession of the village, the plaintiff instituted the present suit for possession.

(2.) The defendants set up that the plaintiff s two brothers not having joined him in the suit, the suit was bad for nonjoinder, that the plaintiff s purchase was bad for champerty and maintenance, that the defendants had a permanent lease right and that no notice of intention to take advantage of the alleged forfeiture was given in 1903 as alleged by the plaintiff.

(3.) The District Munsif held on a construction of the Kayam lease-deed (Exhibit I of 1839) that it did confer a permanent heritable right on defendants predecessor in title, He, however, decided that the defendants incurred forfeiture of that right of permanent tenancy by their denial of the plaintiff s title as their landlord not only in the written statement in the former suit in the first Court but also by their denials in the District Court and the High Court. He states in the 10th paragraph of his judgment that there was a clear and mala fide denial of plaintiff s title in the District Court and also in the High Court and that there was a forfeiture." He further found that the plaintiff had given the notice, Exhibit K, insisting on the forfeiture. The learned District Munsif Was further of opinion that no notice to quit was necessary under the circumstances, because (I take it) the Transfer of Property Act was not applicable to the rights and conditions of the lease, Exhibit I, created in 1839. As regards nonjoinder of plaintiff s brothers, one of them, as plaintiff s witness, denied that plaintiff s brothers had any right. This contention of defendants, though thus patently frivolous, was persisted in the appeal memorandum.