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N.A. Munavar HussaIn Sahib and anr. Vs. E.R. Narayanan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberAppeal No. 529 of 1982 and C.M.P. Nos. 806 and 2282 of 1983 and S.A. No. 987 of 1982
Judge
Reported inAIR1984Mad47
Acts(A) Tamil Nadu City Tenants Protection Act, 1922 - Sections 4, 4(1), 4(4) and 12; Transfer of Property Act, 1882 - Sections 108, 108 (4); Code of Civil Procedure (CPC), 1908; Partnership Act, 1932 - Sections 69
AppellantN.A. Munavar HussaIn Sahib and anr.
RespondentE.R. Narayanan and ors.
Appellant AdvocateA.R. Ramanathan, ;K.S. Ahmed and ;S. Mohd. Mohiddeen, Advs.
Respondent AdvocateV. Sridevan, ;R. Balachander, ;G. Narasimhalu, ;M. Balchander, ;D. Ananthan and ;N. Palaniappan, Advs.
Cases ReferredIn Jalal Mohammad Ibrahim v. Kakka Mohammed Ghouse Sahib
Excerpt:
tamil nadu city tenants protection act (iii of 1922), section 4--three months period fixed under the section--whether the period can be extended consent for extension--effect of.; partnership act (ix of 1932), section 69--maintainability o the suit for non-registration of the firm--plea not taken--whether can be raised in the appeal.;the plaintiff filed a suit for declaration of his title to the half share in the site, superstructure, machineries, etc of a theatre and for an injunction against the defendants 1 and 2 from interfering with his joint possession with defendant 3 and the rest. defendants 1 and 2 contended that in an earlier ejectment suit against the present plaintiff, the third defendant and the predecessors-in interest of the other defendants for recovery of vacant.....1. these appeals arise out of disputes relating to the lease hold interest in the site in west masi st., madurai town, and title to the super structure thereon, formerly known as 'chandra talkies' and now called 'shanti theatre'. defendants 1 and 2 in o s. 92 of 1976, first additional sub court, madurai and in o. s. 672 of 1978, sub court, madurai, are the appellants here in. while s. a. 987 of 1982 arises out of the decree in o. s. 92 of 1976, first additional sub court, madurai, filed by one mangayarkarasi achi, setting aside a summary order dated 2-5-1975 passed in 1. a. 527 of 1973 in 0. s. 72 of 1961. sub court, ramanathapuram at madurai raising the attachment over a fourth share in 'shanthi theatre' belonging to the second respondent in the second appeal, the. appeal in a. s. 529 of.....
Judgment:
1. These appeals arise out of disputes relating to the lease hold interest in the site in West Masi St., Madurai town, and title to the super structure thereon, formerly known as 'Chandra talkies' and now called 'Shanti Theatre'. Defendants 1 and 2 in O S. 92 of 1976, First Additional Sub Court, Madurai and in O. S. 672 of 1978, Sub Court, Madurai, are the appellants here in. While S. A. 987 of 1982 arises out of the decree in O. S. 92 Of 1976, First Additional Sub Court, Madurai, filed by one Mangayarkarasi Achi, setting aside a summary order dated 2-5-1975 passed In 1. A. 527 of 1973 in 0. S. 72 Of 1961. Sub Court, Ramanathapuram at Madurai raising the attachment over a fourth share in 'Shanthi Theatre' belonging to the second respondent in the second appeal, the. appeal in A. S. 529 of 1982 has been preferred against the decree granted in, favour of one E. R. Narayanan. 1 plaintiff in O..S671 of 1978. Sub Court., Madurai declaring that he is entitled to a share in the site, superstructure, machineries, projectors, furniture, fittings etc., in 'Shanti Theatre' and also granting a permanent injunction restraining the appellants in A. S. No, 529 of 982, from interfering with the joint possession of 'Shanthi Theatre' by E. R. Narayanan along with one Sundaram Chettiar and three others, who were impleaded as defendants 3, 5 to 7 respectively in that suit and for rendition of accounts by Sundram Chettiar, for the collection and profits in the conduct of 'Shanti Theatre' from 1964 up to date and for payment of the amounts that may be found due on such account taking with interest. The site over which "Shanti Theatre" now stands was leased in 1917 by one Abdul Kader Sahib in favour of Ramaswami Konar for the purpose of putting up a superstructure thereon and conducting dramas. On the expiry of that lease, a fresh lease was granted on 22-2-1935, for a period of 11 years in fvour of Ramaswami Konar. The lessee was a member of a joint family consisting of three brothers - an elder brother Gopalakrishna, himself and a younger brother Radhakrishna. The lessee put ) superstructures on the vacant site at considerable expense. Subsequently, Ramaswami Konar died leaving behind him two sons, Narayanan, the plaintiff in 0. S. 671 of 1978 and E. R. Chellam alias Erulappa. On 29-111940 there was a partition in the family and there under, the leasehold rights in 'the site and the superstructure put up thereon were allotted to the share of Narayanan, the plaintiff in 0. S. 671 of 11978 and his step-brother Chellam alias Erulappa, Konar. In yet another partition entered into on 29-3-1940, between Narayanan, the plaintiff in 0. S. 671 of 197g and his step-brother E. R. Chellam alias Erulappa Konar. the leasehold rights in the site as well as the superstructure thereon, fell exclusively to the share of Narayanan, the plaintiff in O. S. 671 of 1978. On 18-8-1978, Narayanan sold the leasehold rights in the site and the superstructure to one Bharatha Muthu Thevar, who was the ranger of the Joint from insisting of himself and h;3 brother R. M Veerabadra The var with an agreement to repurchase one half of the leasehold right in the site and the theatre. Bharatha Muthu. Thevar and his brother Veerabadra Thevar divided the other properties belonging to their joint family but kept the theatre as common property. On 28-11-1953, Bharatha Muthu Thevar and his brother Veerabadra Thevar reconveyed hall share in the theatre and the leasehold rights to Narayanan, the plaintiff in O. S. 671 of 1974 in accordance with a compromise decree in 0. S. 152 of 1050, Sub Court, Madurai. Later, there was a division of the remaining half share between Bharatha Muthu Thevar and his brother Veerabadra Thevar sold his 1/4th share in the theatre and the leasehold rights on 19-12-1956 to Sundaram Chettiar, the defendant 3 in O. S. 92 of 1976 and also in 0. S. 671 of 1978. On the death of Harahan Muthu Thevar on 1-9-1962, his one-fourth share in the theatre and the leasehold rights in the site devolved upon his son Sudhanthiram and daughters Chandra Ammal and Jansi Rani Ammal, defendants 5 to 7 in' O. S. 671 of 1978. The plaintiff in O. S. 671 of 1978, Bharatha Muthu Thevar and Sundaram Chettiar had been leasing 'Shanti Theatre' for some time and thereafter conducted the business in partnership dividing the profits in accordance with their shares in the theatre. Later, Sundaram Chettiar, started assuming - exclusive powers of management and dominated the conduct of the business and started appropriating to himself the entire income and collection from the cinema theatre. No accounts were rendered. at all by him in respect of his management from 20-11-1964. Alleging that he is the owner of a half share in Shanti theatre and the leasehold rights in the site and stating that the appellants in A. S. 529 of 1982, have no rights whatever in the theatre and charging Sundaram Chettiar with having misappropriated the collections and committed several acts of breach of trust, malfeasance and misdeeds, the suit in O. S. 671 of 1978 Sub Court, Madurai, Was laid by Narayanan, the plaintiff therein, for the reliefs referred to earlier,

2. In the written statement filed by the appellants, who were defendant 1 and 2 in O. S. 671 of 1978, they contended that they had become the owners of the superstructure viz., Shanti theatre, as per the compromise entered into between them and the plaintiff in O. S. 671 of 1978 in E. P. 90 of 1958 in 0. S. 15 Of 1954, Sub Court, Madurai. The claim of Narayanan to a half share in the theatre was thus disputed by the appellants. An objection was also raised by the appellants that Narayanan was a consenting party to the compromise and not having alleged any fraud or misrepresentation regarding that compromise, it was not open to him to resile from that and claim that he is still entitled to a half share in Shanti theatre. The purchaser of the 1/4th share from Veerabadra Thevar viz., Sundaram Chettiar, the 3rd defendant in O. S. 671 of 1978 remained exparte. Similarly, the defendant 4 in 0. S. 671 of 1978 who is the son of the defendant 3 therein, was also ex parte. In their separate written statements, defendants 5 to 7 in O. S. 671 of 1978, the so n and daughters of Bharatha Muthu Thevar , who was entitled to 1/4th share in the Shanti theatre, and leasehold rights supported the plaintiff in O. S. 671 of 1978,Defendant 8 in O. S. 671 of 1978, who is also the plaintiff in 0. S. 92 of 1976 in the written statement contended that Narayanan had abandoned his rights in the partnership after the decree obtained by her in O. S. 92 of 1978, and had filed the suit to get over the decree therein. It wag also her further plea that after the disposal of the suit in 0. S. 92 of 1976, the appellants in A. S. 529 of 1982 and defendants 3 and 4 in 0. S. 671 of 1978 had set up Narayanan, the plaintiff in O. S. 671 of 1978 to put obstacles is, the way of the realization of the fruits .of the decree obtained in O. S. 92 of 1976. The lease deed stated to have been executed by the appellants in A. S. 529 of 1982 in favour of defendant 4 in O S 671 of 1978, 'was characterised as a collusive transaction. The prior proceeding in O. S. 15 Of 1954 instituted by the appellants in A. S. 529 of 1982, according to her, did not have the effect of securing title to the superstructure of Shanty theatre to the appellants in A.S. 529 of 1992, as claimed by them and that question had been considered in S. 92 of 1976 wherein it was found that the appellants did not at all secure any interest in the superstructure and - that had also become final. It was also further contended that P~ a result of the compromise entered into by the plaintiff in 0, S. 671 of 1978 in 0. S. 15 of 1954 he whould be precluded from questioning the validity of that order. A plea that the suit was barred by limitation was also raised. Defendant q who was impleaded in O. S. 671 of 1978 as a person who was intermeddling with the affairs of Shanti theatre also remained ex parte.

3. It is now necessary to notice the proceedings earlier initiated by the appellants in4these appeals against those persons interested in the leasehold rights in the site and the superstructure thereon viz., Shanti theatre. 0. S. 15 of 1954. Sub Court, Madurai was filed by the first appellant and his brother (who has since been succeeded by the second appellant in these appeals against the plaintiff in O. S. 671 of 1978, Sub Court, Madurai, Bharatha Mothu Thevar the father of defendants 5 to 7 in 0. S. 671 of 1978, and his brother Veerabadra Thevar, and others, for the recovery of possession of the vacant site after removal of superstructures, for a mandatory injunction for removal -of the constructions and for recovery of damages for use and occupation and other reliefs. on 10-1-1955. a compromise decree was passed granting time to the defendants to vacate till 12-3-1958. On 12-9-1955, the provisions of the Tamil Nadu City Tenants Protection Act hereinafter referred to as the Act) were extended to Madurai town. Since the defendants in O. S. 15 of 1954, Sub Court, Madurai did not surrender possession in accordance with the decree, the appellant filed 1E. P. 90 of 1958 for execution of the decree in 0. S. 15 of 1954 and for possession after the removal of superstructure. Pending that, E. As. 467, 586 and 713 of 19,158, were filed by Narayanan, the plaintiff in 0. S. 671 of 1978, Bharatha Muthu Thevar (the predecessor in interest) and defendants 5 to 7 in O. S. 671 of 1978, and Sundaram Chettiar (who had by then succeeded to the interest of Veerabadra Thevar) claiming benefits Under the Act. They also claimed that the decree in O. S. 15 of 1954, Sub Court, Madurai, had become void in executable and that in any event. they, as tenants, are entitled to be paid compensation in respect of the superstructure put up. These applications were taken up along with E. P. 90 of' 1958 and by Fin order dated 14-9-1964- the applications in E. As. 467, 476 and 713 of 1958, were dismissed as having been filed out of time. Nevertless. the court found that Naraynan , the Plaintiff in O. S. 671 of 1978, Bharatha Mitthu Thevar and Sundararn Chettiar were tenants and. Had put up valuable superstructures and were entitled to the value of superstructures and that the appellants in A.S 529 of 1982, should pay reasonable compensation to them for the superstructures and directed the appointment of a fresh Commissioner for that .The E. P. was directed to be posted on 19-10-1964. Meanwhile, the Commssioner valued the superstructures at Rs. 88,940. In E. P. 90 of 1958 on 25-9-1970, a joint endorsement was made to the effect that the value of the superstructure fixed by the Commissioner at Rs. 88,940 may be adopted and six months' time may be granted for the payment of this amount by the decree holders in 0. S. 15 of 1954. To this joint endorsement, Narayanan. the plaintiff in O. S. 371 of 1978 and the appellant here in were parties. On the strength of the joint endorsement, the Sub Court proceeded to set the others ex parte and granted six months' time in terms of the joint endorsement. The amount of Rupees 88,940 was not deposited by the appellants in A. S. 529 of 1982, within the time granted. The first appellant filed an application in E. A. 201 of 1971 in E. P. 90 of 1958 praying for a further extension of time for deposit by six months from 26-3-1971. Sundaram Chettiar defendant 3 in O. S. 671 of 1978 and 0. S. 92 of 1976 initially opposed the grant of time by filing a counter, but, subsequently, on 31-7-1972, there was a joint endorsement for the grant of three months further time from 31-7-1972 to the appellants in A. S. 529 of 1982, to deposit the compensation of Rs. 88,940. The appellants deposited the amount on 29-9 -1972, and also produced a challan before court the next day. It is on the strength of these proceedings in O. S. 15 of 1954 in the deposit of sum of Rs. 88.940 that the appellants in A. S. 529 of 1982, not only disputed the claint of the plaintiff in O. S, 671 of 1978 but had also taken up the position in O S. 92 of 1976 that even the interest of the therein, viz. Sundram Chettiar in the lasehold rights and theatre had been extinguised so that it would not be avilable for being further proceeded against by the plaintiff in O. S.92 of 1976 who is also the defendant 8 in O . S 671 of 1978.

4. The circumstances which gave rise to the institution of O. S.92 of 1976 for setting aside the summary Order passed in I . A.527 of 1973 in O.S 72 of 1961 may now be noticed. Sundaram Chettair, the defendant 3 in O S of 1976 and O.S. 671 of 1978 had borrowed amounts on Ashok Talkies at Rajapalyam. The mortgages were assigned in favour of the plaintiff in O S of 1976 by her husband and she instituted O S72 of 1961 Sub Court, Ramanathpuram at madurai,against sudaram due. In I A 57 of 1962 in O.S.92 in O.S.72 prayed for the appointment of a receiver to collect the income from the Ashok Talkies and to deposit the same into court. Sundaram Chettiar and an advocate Mahaboob Ali Khan Gori were Liopointed as joint receivers and Sunderam Chettiar was directed and pay 2/3 of the net collection advocate receiver for deposit Though pursuant to this order Sundaram Chettiar was running the Ashok Talkies as receiver he did not deposit 2/3 of the net collections either with the advocate receiver or into court with the rcsult that in 1. A. 270 of 1962 the Advocate receiver was directed to take posseion from Sundaram Chettiar. Owing the obstructive tactics adopted by Sundaram Chettiar, the Advocate Receiver could not take possession immediately and eventually on 24-6-1966 possessions was taken from Sandarac Chattier. Meanwhile in O. S. 72 of 1961, a preliminary decree was passed on 29-3-1062 and this was followed by a final decree on 6-10-1962 under which a sum of rupees 1,84,451-13 was due from Sundarm Chettiar. E. P. Ill of 1962 was filed the plaintiff in 0. S. 72 of 1961 for realisation of the amounts due and his was later transferred to the Sivaganga. and numbered as F. P. 51 ) 1963. In the court auction sale held the plaintiff in O, S. 72 of 1961 became perchaser, but that sale was as and subsequent1y a fresh E. P. was filed and on 19-8-I978 and 1966 in O. S. 72 of 1961. Sundaram Chettiar was directed to produce the accounts relating to Ashok Talkies, Rajapalayam of which he was the Receiver, from 29-3-1962 till 17-4-1966 and also to deposit 2/3 of the amounts realised by him viz., Rs. 38,9 into court. Sundaram Chettiar did not deposit this amount and as the plaintiff in 0. S. 72 of 1961 had to realise some more. amounts under the decree even after proceeding against the hypotheca, she filed I. A. 171 of 1972, under 0. 40, R. 4. C. P. C. for an attachment of the 1/4th share of all the rights of Sundaram. Chettiar in Shanti Theatre for having disobeyed the orders of court passed in I. A. 336 of 1966. Sundaram Chettiar evaded service of notice and an ex parte order of attachment was passed on 21-8-1972, and effected on 17-9-1972. Later in. I. A. 659 of 1971, the ex parte order of attachment was set aside and after contest by Sundaram. Chettiar on 27-2-1973 the Court ordered the attachment of the 1/4th share of Sundaram Chettiar in 'Shanti Theatre' which was effected on 25-3-1973. The appellant in. these appeals filed a claim petition in I. A. 527 of 1973 stating that the attachment effected over the 1/4th share in Shanti Theatre has 'to be raised as they had become the owners of entire superstructure in Shanti Theatre on the date of the attachment by reason of the deposit of Rs. 88,940 made by them into court pursuant to the order in E. P. 90 Of 1958 in 0, S. 15 of 1954, and Sundaram Chettiar did not have any interest therein. This claim of the appellants was opposed by the plaintiff in 0. S. 92 Of 1976 on the ground that the order passed in 0. S. 15 of 1954, ran counter to the provisions of the Act and would not therefore clothe the anDellants with any right to the superstructure in Shanti Theatre including-the share of Sundaram, Chettlar therein and therefore the attachment was rightly made with reference to his share. Besides, it was also stated that the appellants and Sundaram Chettiar colluded together and brought into existence transactions to defeat the rights of the plaintiff in O. S. 92 of 1976. The application to raise the attachment was allowed and to set aside that order, the plaintiff in 0. S. 92 of 1976 brought the suit.

5. The suit was resisted by the appellants and the respondent 2 in the second appeal by contending that by reason of the order dated 31-4-1972., passed in terms of the joint endorsement in E. P. 90 of 1958 in 0.. S. 15 of 1954, time till 30-9-1972 was given to enable the appellants to deposit the sum of Rs. 88,940 towards compensation for the value of the superstructure determined by court and that that amount had been deposited on 29-9-1972 within time and the appellants thus became entitled to the superstructure with the result that on the date of attachment, Sundaram Chettiar had no right or interest in the property which was attached and the attachment therefore was invalid. The claim was rightly allowed, as they had become the owners of the superstructure in Shanti Theatre according to the appellants. The collusion between the appellants and Sundaram Chettiar was denied by them.

6. In 0. S. 92 of 1976, after framing the necessary issues and considering the oral as well as the documentary evidence, the learned 1 Additional Subordinate Judge, Madurai, found that the compromise entered into in E. P. 90 of 1958 in 0. S. 15 of 1954 was not a lawful or a legal compromise and that strch a compromise ran under to S. 4(1) and (4) of the Act, and the order passed was also violative of the provisions of the Act . therefore, be either given effect to or enforced. It was also further found that owink to the failure of fendants I and'2 in 0. S. 92 Of 1976 to deposit the amount within three months, i.e., on or before 12-1970, Mi ccordance with S. 4(1) of the Act, there was no decree for possession in 0. S. 15 of 1954 in favour of the appellants as the suit under S. 4(4) of the Act stood dismissed and therefore Sundaram Chettiar the, defendant 3 and others continued to retain their interest in the Shanti Theatre and that the interest of Sundaram Chettiar could be attached by the plaintiff in 0. S. 92 of 1976. Dealing with the case of collusion between defendants I and 2 and defendant 3 in 0. S. 92 of 1976. the learned Subordinate Judge felt that though there was strong suspicion, yet there we ' re not enough materials to hold that the collusion at tributed to the defendants in

0. S. 92 of 1976 had been established. On these conclusions, the suit

0. S. 92 of 1976 was decreed as prayed for setting aside the summary order passed in 1. A. 527 of 1973 in 0. S. 72 of 1961 ubcourt,Ramanathanuram at Madurai. Aggrievedappeal by contending that by reason of by this, the appellant preferred an appeal in A. S. 292 of 1978 to the District Court, Madurai, while the plaintiff in 0. S. 92 of 1976 filed a memorandum Of cross-objections regarding the finding on collusion between the defendants in 0. S. 92 of 1976, arrived at by the trial court. The learned District Judge was of the view that the order passed in E. P. 90 of 1958 in 0. S. 15 of 1954 granting time was contrary to the provisions of the Act and therefore compliance with such an order would not operate to convey to the appellants the interest of Sundaram Chettiar or others in Shanti Theatres with the result that the one fourth share continued to belong to Sundaram Chettiar which could be attached by the plaintiff in 0. S. 92 of 1976. Considering the question of collusion the learned District Judge, orf an examination of the evidence and the conduct of Sundaram Chettiar, concluded that defendants I and 2 and defendant 3 in 0. S. 92 of 1976 colluded together and with the ulterior purpose of defeating the just claims of the plaintiff in 0. S. 92 of 1976 secured orders and brought into existence certain transactions. Consequent to these conclusions, the appeal Was dismissed and the cross-objection was allowed. It is the correctness of this that is challenged in the second appeal by the appellants.

7. In 0. S. 671 of 1978. the learned Subordinate Judge, Madurai mainly relied upon the adjudication in 0. S. 92 of 1976, as affirmed in A. S. 292 of 1978, and found that the appellants *had not become the owners of the superstructure in Shanti Theatre, that the plaintiff, defendant 3 and defendants 5 to 7 in 0. S. 671 of 1978, were together entitled to the superstructure and also the leasehold rights over the vacant site and that the plaintiff would be entitled to 1/2, the defendant 3 to 1/4 and the defendants 5 to 7 together 1/4 in the leasehold right as well as the superstructure of the cinema theatre viz., Shanti Theatre. In the absence of any plea and evidence by the defendant 3 or his son, the defendant 4. the so-called lessee, the defendant 3 in 0. S. 671 of 1978, was held liable to render an account to the plaintiff in 0. S. 671 of 1978 in respect of his management of Shanti Theatre. On these finding, a decree as prayed for was granted in 0. S. 671, of 1978, the correctness of which is disputed in the appeal.

8. The main yet common contention in these appeals urged by the learned counsel for the appellants is that on the deposit by the appellants of a sum of Rupees 88,940 on 29-9-1972, the plaintiff, defendants 3 and 5 to 7 in 0. S. 671 of 1978 lost their right, title and interest in the superstructure Shanti Theatre and thereafter, the plaintiff in 0. S. 671 of 1978 could not claim that he is entitled to a half ;share therein, nor can the defendant 3 or defendants 5 to 7 in that suit claim that they are entitled to 1/4th share respectively as the appellants be came entitled to be put -in possession of the land and the superstructures there on. The deposit made on 29-9-1972 was a valid deposit according to counsel as the period within which such a deposit should be made could be varied by contract or even waived by the parties and that in any event. having regard to the dismissal of the applications filed by the plaintiff, defendant 3 and predecessors in interest of defendants 5 to 7 in 0.. S.671 of 1978, under S. 9 of the Act, the provisions of that Act were inapplicable and that deposit was made the provisions of the Act and would therefore avail the appellants to claim that the interest of the plaintiff, defendants 3 and defendants 5 to 7 in 0. S. 671of 1978 in the super structure Shanti Theatre became extinguished on such deposit. On the other hand, the learned counsel for the contesting respondents would submit that though the applications filed by the plaint defendant 3 and the predecessors in interest of defendants 5 to 7in 0. S. 671 of 1978 under S. 9 of the Act had been dismissed on the ground that they. were out of time, yet, it had been found that they were tenants who had put up superstructures and were also entitled to its value and further that the appellants in these appeals should pay a reasonable value in respect of the super structures and that it was this which was later on quantified by the Commissioner at Rs. 88,940 and directed to be deposited within six months from 29-9-1970 and that not being in accordance with the provisions of S. 4(1) of the Act would not *in any manner enable the appellants to claim that the rights in the superstructure Shanti Theatre belonging, to the plaintiff, defendant 3 and defendants 5 to7 in 0. S. 671 of 1978,became extinguished or that possession of the land and buildings s hould be surrendered to the appellants. On the non-deposit of the value of the superstructures within the dine Prescribed under S. 4(1) of the Act, according to learned counsel, the suit in 0, S. 15 of 1954, stood dismissed under S6 4 (4) of the Act and thereafter the parties were not only relegated to the position which they occupied earlier in that the plaintiff, defendant 3 and defendants 5 to 7 in 0. S, 671 of IM continued to hold the leasehold rights in the site and the superstructure there an in accordance with their respective shares vix, 1/2, 1/4 and 1/4 but had 090 secured immunity from eviction for a further period of five years and therefore the appellants cannot be heard to deny their title in the leasehold rights and the superstructures thereon. Reliance in this awnection was also placed upon the decision of the Supreme Court in V- YL A. Ranganatha Konar v. TirucNiraPalli MmiciPal Council, . It was

Pointed out by the learned counsel that this case fen squarely under S& 4(1) and 4(4) of the Act and that there was no scope at an for an ex gratia deposit or claim outside the provisions, of the Act and that parties cannot agree to vary or waive the statutory requirements and at the same time claim benefits there under. The prior proceedings according to counsel had gone on the. footing that the provisions of the Act would be applicable and that the rights Of the Parties have to be decided only in accordance with the provisions of the Act 9D that the applicability of the Provisions of the general law (Transfer of Property Act etc.) relating to fixtures stood excluded since at the inception the lease was of a vacant site and the superstructures had been put up by the tenants and the tenants had continued to remain in possession after the obtain in of the decree in ejectment and after the extension of the provisions of the Act to the area in question.

9. Earlier, while setting out the facts giving rise to the dispute, we had noticed that the appellants had leased out the vacant site to Ramaswami Konar who had also put up the superstructure there on and that subseqttently, the superstructure as well as the leasehold rights in the site of Shanti rMeatre came to be owned by Narayanan, the plaintiff in 0. S. 671 of 1978, Sundaram Chettiar, the defendant 3 and Bharatha Muthu Thevar, the predecessor-in-interest of defendants 5 to 7 in 0. S, 671 of 1978. Even after the passing of the decree in 0. S. 15 of 1954 on 10-1-1955, granting time for vacating the premises till 12-31958. they did not vacate and this necessitated the filing of E. P. 90 of 1958 by the appellants for the recovery of possession after removal of the superstructure. It is not in dispute that on and from 12-9-1955, the provisions of the Act were applied to the area in question and it was an this basis that Narayanan. Muthu Thevar and Sundaram Chettiar filed E. A. 467, 496 and 713 of 1958, claming that they were entitled to benefits under Section 9 of the Act. These applications had been filed on 10-7-1958, 15-7-1958 and 10-10-1958 respectively. A perusal of the order marked as Ex. R 1, dated '14-9-IWA, (in the second appeal) discloses that the lessees claimed that they as tenants were entitled to the benefits of the Act as amended by Tamil Nadu Act 19 of 1955, and that, in any event, the decree-holders in 0. S 15 of 1954 were bound to pay compensation for the building put up in the vacant site. The applications so filed were taken up along with E. P. 90 of 1958 filed by the appellants, The applications praying for the relief of fixation of the market value of the site were dismissed on the ground that they had not been filed within one mouth after the extension of the provisions of the Act by Tamil Nadu Act 19 of 1955. It was also further found by the court in para 16 of Ex. B. 1, that it was admitted that possession had passed to the tenants and the tenatris had put up costly superstructures and that the decree-holders in 0. S. 15 of 1954 must pay reasonable value as regards the superstructure to ascertain which a Commissioner was appointed. E. P. 90 of 1958 filed by the appellants was directed to be called on 19-10-1964. The Commissioner had thereafter valued the superstructure at Rs. 88.940 and E. P. go Of 1958 was pending till 29-9-1970 when a joint endorsement was made on behalf of the appellant I in these appeals and the plaintiff in 0. S. 671 of 1978, agreeing to adopt the fixation of the value of the superstructure by the Commissioner at Rs. 88,940 and praying that six months' time may be granted for payment. The other respondents in the E_ P. were set ex parte and the court ordered the E. P. in terms of the joint endorsement, The un of Rs. 88,940 was not deposited within the time granted v'1z., Ax months. There. after, as SCM firm Exs. B-25 an B-32, (in the second appeal) E. A~ 201 of 1971 in E. P. 90 of 1958 -was filed praying for an extension of time of the sale price of Rs. 88,940 by a further period of six months Lem 26-31971. From the affidavit Ex. B-25, it is seen that it has been stated by the appellants that the superstructure was directed to be sold to them on payment of Rs. 88,940 within six months, i. e., on or before 26-3-1971, and on account of certain difficulties, the amount could not be found and therefore. the time should be extended. Ex. B-32, the compitition in E. A. 201 of 1971, makes a reference to Ss. 148 and 151, C. P.C. and the provisions of the Act. on 31-7-1971, the first Additional Sub Court, Madurai, passed an order to the effect that 'he petition was allowed and the first appeallant in these appeals was grant three months' time from 31-7-1972 for payment of the compensation. It is pursuant to this order the appellants clairity have obtained a judgegment under Ex. B-9 (in the second appeal) on 28-9-1972 or the payment of a sum of Rs. 88,940 towards the cost of the superstructure and Paid that amount on 29-9-1972 and also produced the chalan before court on 30-9-1972.

10. The question is whether by reason of this deposit towards the cost of the superstructures by the appellants, the interest of the plaintiff. defendant 3 and defendants 5 to 7 in 0. S. 671 of 1978, in the superstructure Shanti theatre had in any- manner been affected and the appellants became entitled to it. It is necessary to briefly notice the provisions of the Act in so far as they are relevant for the purpose of these appeals. The Act is a special one enacted with a view to give protection to tenants who had Put up superstructures and constructions on the lands of others in the hope that they would not be evicted so long as they pay a fair rent for the land. S. 3 of the Act provides for payment as compensation to the tenant on ejectment, the value of the building erected by him or by a predecessor in interest or by a person not in occupation at the time of ejectment, who derived title from either of them. S. 4(1) of the Act runs thus -

"In a suit for ejectment against a tenant in which the landlord aueceeds the court shall ascertain the. amount of compensation if any payable under S. 3 and the decree in the shall declare the amount so found due and direct that on payment by the landlord into court, within three months,from the date of the decree of the amount so found due, the tenant shall put the landlord into possession of the land with the building and trees thereon."

11. Section 4(2) deals with an application under S. 41 of the Presidency Shall Cause Courts Acct and the passing of an interim order clairing the amount of compensation payable S. 3 and directing payment by the Iandlord into court of that amount within three months from the date of the interim order. S. 4(3) of the Act is to the following effect -

"If in such suit or application the court fields that any sum of money is due by the tenant,to the landlord for rent or otherwise in respect of the tenancy, the court all set off such sum against the sum found due under subsec v. (1) or sub-sec. (2), as the case may be. and shall pass a decree or in the order declaring as the amount payable to the tenant on ejectment. the amount, 7 any, remaining due to him after such setoff."

Section 4(4) reads thus-

"If the amount found due is not paid into court within three months from the date of decree under, sub-see. fl) or of the interim order under sub-see. (2), or if no application is made under S. 6, the suit or application, as the case may be, shall stand dismissed and the landlord shall not be entitled to institute a fresh suit for ejectment, or present a fresh application for recovery of possession for a period of five years from the date of such dismissal."

Section 6 of the Act enables the landlord to have the reasonable rent ' for the land fixed in case the landlord is either unable or unwilling to deposit the compensation within three months in accordance with the S. 4(1), or 4(2), as the case may be. S. 9 confers the right on the tenant to file an application for directing the landlord to sell the land for a price to lb~ fixed by the court. S. 10 of the Act declares the applicabel of Ss. 4, 5, 6. 8, 9 and 9-A of the Act to pending suit in abetment and application under S. 41 of the Presidency Ram all, Cause Courts Act and to decrees for ejectment or orders -under S. 43 of the Presidency Small Cause Courts Act passed, but not executed. S. 12 provides that nothing in any contract made by a tenant shall take away or limit his rights under the Act. S. 13 of the Act enacts that to the extent necessary. to give effect to the provisions of the Act, the provisions of the Transfer of Property Act, shall be deemed to have been repealed or modified. The provisions of the Act thus confer rights and benefits on tenants as well as landlords.

12. In this case, the lease was of a vacant site over which superstructures had been Put up by tenants and the decree in ejectment had been passed when the Act had not come into force and the decree had remained unexecuted at the time when the provisions of the Act were given effect to in the area concerned and the tenants continued to remain in. possession and therefore the question arising under Ss. 3, 4 and 9 of the Act came to be dealt with at the time of the execution of the decree in. 0. S. 15 of 1954. We have already seen how under Ex. B-1 (in the second appeal) the court had earlier found that the tenants were in possession and had also put un costly superstructures and that the appellants should pay compensation there for, which was later fixed at Rs. 88,940. In other words. the court proceeded on the footing that the appellants were landlords and the petitioners in E. As. 467, 486 and 713 of 1958, were tenants entitled to the benefits of the Act, as otherwise, there was no need to go into the question of compensation for the superstructure under S. 3 of the Act and the ascertainment thereof. The tenants had unsuccessfully agitated their rights for the sale of the site to them in E. As. 467, 586 and 713 of 1958 and on the dismissal of those applications, they had lost their right to claim the benefit of S. 9 in those proceedings. The appellants would have become entitled thus to secure possession of the land with the superstructure put uder thereon by the tenants on payment info court of the amount of compensation. The court on 29-9-1970 directed the deposit of Rs. 89,940/- by the appelIant ,within six months from fliat date, thorl9b S 4 (1) of the Act provide~ For only three months. No payment within three months from the date of the. order, C e.. 29-9-070 had admittedly been made. Such non-payment, under S. 4 (4) of the Act, resulted in the dismissal of 0. S. No. 15 of 1954 and the appellants thereafter were not entitled either to execute the decree or even to institute a fresh suit in ejectment or present a fresh application for recovery of possession for a period of five years from that date. The order passed in this case in E. P. No. 90 of 1958 on 29-9-1970 is really an order passed by the executing court under S. 4 (1) of the Act read with S. 10 (2). The benefits conferred by the Act are purely statutory and anyone claiming such benefits, must strictly conform to the requirements of the statute. If the appellants had wanted to secure to themselves the benefit of surrender of possession by the tenants of the land with the superstructure thereon under S. 4 (1) of the Act, they should have fulfilled the requirement of the statute viz., the deposit of Rs. 88,940/- within three months from 29-9-1970 when the compensation was ascertained and ordered to be deposited by Court. The statutory prescription of a three months' time limit for deposit in S. 4 (1) of the Act is not a period of limitation as ordinarily understood but a vital condition on the fulfilment of which alone the statutory benefit of surrender of possession by the tenant of the land with the superstructure can be availed of. It may also be pointed out that as distinct from a period of limitation on the expiry of which the right may still survive but the remedy alone may be lost. the non-fulfilment of the condition regarding deposit within three months would not leave the right also intact, as by the combined operation of S. 4 (1) and (4) of the Act, the right of the landlord to be put back possession of the land by the tenant with the building thereon is lost and the suit will also stand dismissed and further the right of the landlord to evict the tenant will remain suspended for the next five years. The three months' time limit in S. 4 (1) of the Act is a rigid, fixed and inflexible, and unalterable one incapable of extension either by court or by agreement of parties. At the time,, when the order was passed on 29-9-1970 in E. P. No. 90 of 1958, the Court by granting six months time to the appellants had re-enacted the statutory provision under S. 4 (1) of the Act regarding the time for deposit which it was not competent. to do. Even if no time is fixed under a decree, only period of three months will be available under S 4 (1) of the Act and failure to deposit the amount within that time would automatically attract S. 4 (4) of the Act resulting in the dismissal of the suit. The Supreme Court in Ranganatha. Konar v. Thiruchirapalli Municipal Council has pointed this at page 68 as under:

"The two operative parts of the decree as contemplated by S. 4 (1) are the declaration of the amount due to the_, tenant and the direction to the tenant to deliver possession of the land to the landlord in case he paid into Court within three months of the date of the decree, the amount declared due. It is true that the decree would state that the landlord has to pay the amount within three months from its date, but having regard to the specific and mandatory terms in which S. 4 (4) is couched, it would not be reasonable to construe S. 4 (1) as controlling S. 4 (4). The relevant clause provides that the decree shall direct that on payment by the landlord into Court, within three months, of the amount found due, the tenant shall put the landlord into possession. The clause in respect of the payment by the landlord into court within, three months amounts to a condition which has to be satisfied by the landlord before the tenant is required the deliver to him possession of the property in question. In other words, reference to the payment by the landlord of the amount found due within the specific period in S. 4 (1) is not so much a direction issued by the Court as specification of a condition expressly and independently provided by S. 4 (4)."

Again, at page 69. the Supreme Court has observed thus:

"The applicability of S. 4 (4) cannot be repelled merely on the ground that the Aecree passed under S. 4 (1) does not specify e period of three months within which the amount found due has to be paid6 In our opinion, the logical way to reconcile S. 4 (1) and S. 4 (4) would be to treat the provision prescribed by S. 4 (4) as mandatory and paramount and read the relevant -portion of S. 4 (1) accordingly. That is why even if the decree does not mention that the amount has to be paid within three months, the landlord's obligation to make the payment within three months is still enforceable under S. 4 (4), otherwise defective decree would deprive the tenants of the benefit intended to be conferred on them by S. 4 (4).".

From the above observations Of the Supreme Court, it is clear that even if no time limit is prescribed in a decree. nevertheless, such Period would not extend beyond three months and that such defective decrees cannot deprive the benefits intended to- be conferred on the tenants by the statutory provisions. We are of the view that the same principle would govern even a case where the decree or order is defective on account of grant of time beyond the limits set out in S. 4 (1) of the Act. Plainly, the grant of six months time to the appellants ran counter to S. 4 (1) of the Act and as pointed out earlier. the Court had rewritten the statute. which it had no business to do. Nevertheless. applying S. 4 (4) read with S. 4 (1) of the Art, as pointed out by the Supreme Court, the time granted has to be construed as three months from 29-9-1970, It is not in dispute that the amount of Rupees 88,940/- was not deposited within three months from 29-9-1970 and as a consequence thereof, under S. '4 (4) of the Act, the suit in

0. 9. No. 15 of 1954 stood dismissed. The subsequent application for the extension of time in K A. No. 201 of 1971, the order passed thereon on 31-7-1972 granting further time of three months and the deposit of the amount on 29-9-1972 would' all be of no avail, as the vital condition for securing the benefit of surrender of possession of the land and superstructure by the tenant under S. 4 (1) of the Act had not been fulfilled by the appellants. In view of this, the appellants cannot be heard to contented that by reason of the deposit made by them. the rights of the plaintiff defendant and defendants 5 to 7 in 0. S. No. 671 of 1978 in the superstructure "Shanti Theatre" stood extinguished.

13. The question whether the parties can contract out of the Act or waive rights available under the Act may next be considered. We may observe that' in regard to waiver the re is no clear or specific plea by the appellants and therefore, rightly, the matter was not dealt with by the lower court. Section 12 of the Act is relevant in this connection and that provides that nothing in any contract made by a tenant shall take away or limit his rights under the Act The rights under the Act, among others, include the right to claim compensation on ejectment under Ss. .1, and 4, the fixation of fair and reasonable rent at the instance of the tenant under S. 7-A and the right under S. 9 to obtain a direction from court to the landlord to sell the land to the tenant and the requirement as to notice under S. 11, Originally, by means of a proviso that S. 12, an exception to the prohibition against the operation of any stipulation in a contract limiting the rights conferred on the tenants by the Act vz carved out; but that has since been deleted by S. 3 of Tamil Nadu Act, 4 art 1972, which also declared that the proviso shall be deem ed always to have been omitted. It, therefore, follows that under S. 12 of the Act, as it stands. tenants will be entitled to the benefit of every right available under the Act. In this case, the joint endorsement made in E. P. No. go of 1958 can at best be considered as an agreement by the tenant to curtail or cut down or not to avail the rights and benefits under the Act and would not be operative -in that regard by virtue of S. 12 -of the Act. personally, the result of deposit of the amount towards compensation with in the time provided under S. 4 (1) of the Act would be to free the tenant 11rorn the obligation to surrender possession of the land with the buildings and the trees thereon, as provided in the concluding portion of S. 4 of the Act. By reason of such non-deposit owing to the operation of- 4 (1) of the Act, the suit in ejectment, that it might have proceeded to declare will also stand dismissed resulting in the ejectment being vacated and the tenant being enabled to continue to remain in possession and enjoyment of the site as well as the super structure as before Besides. By the operation of S. 4 (4) of the Act, the tenant secures a five year holiday from eviction. The rights Statute flowing from non-compliance with S. 4 0 1 of the Act by the landlord within the time provided therein. The effect & the extension of the limit of three months provided in S. 4 (1) of the Act by agreement between the landlord and tenant would be to deprive the tenant of all these valuable rights and privileges available to the teriant. on the expiry of the period timed in 'S. 4 (1) of the Act. it would also result in great hardship and uncertainty to (sic) under S. 4 (1) of the Act can be considered as a period alterable by agreement or mutual consent, then the consequences thereof may easily be visualised. By periodical ext ension of the time limit prescribed in S. 4 (1), the landlord can indefinitely postpone his obligation to deposit the compensation, while the tenant will continue to be liable all the while to surrender possession of the land with the superstructure, The right to secure a termination of the proceedings, be it a suit or an application, will be lost and the threat of ejectment will continue. More than this, the tenant will be deprived of a right to peaceful possession and enjoyment of the property for a period of five years but will at the same time be exposed to the peril of ejectment repeatedly at the hands of the landlord. The Act had been passed with a view to give protection to tenants, who in certain areas, had put uD buildings in the lands of others in the hope that they would not be evicted so long as they paid the fair rent for the lands, If this is borne in mind. the reason for malcing a provision like. S. 12 of the Act is clear. That provision was specifically enacted to prevent tenants contracting out of the rights and benefits conferred by the Act, or even limiting such rights in any manner. Taldng the aforesaid aspects into consideration, we are of the view that the tenant- cannot contract out of the provisions of the Act and agree for a periodical extension of time under S. 4 (1) of the Act, as by such a course, serious inroads will be made into the rights of the tenant available under the Act. We have earlier noticed how the appellants had not whispered anything about waiver at all. We have therefore no hesitation in rejecting the contention of the learned counsel for the appellants.

14. The contention that on the dismissal of the applications filed by the plaintiff, third defendant and the predecessors-in-title of defendants 5 to 7 in 0. S. No. 671 of 1978 under S. 9 of *P Act, the Act ceased to apply and therefore, the deposit could be made beyond the time limit provided under S. 4 (1) of the Act has no substance. The order in Ex. B-1, dated 14-9-1964 (in the second appeal) recogniged the right of the tenants to compensation and para 16 thereof had been referred to already,The right to get compensation is one of the rights conferred on the tenant under S. 3 of the Act and it is only on the footing that as tenants they were entitled to compensation, the court below directed the appointment of a Commissioner to ascertain the value of the superstructure. At the inception. in this case, the lease was of the vacant site and the superstructure had also been put by the tenants and they had continued in possession despite the decree in 0. S. No. 15 of 1954 with the result that on the extention of the provisions of the Act to the area in question, the relationship between the parties came to be governed only by the provisions of the Act. The contention of the learned counsel for the appellants that the provisions of the Act were not applicable and therefore, the deposit was not applicable the Act cannot be accepted.

15. We are also not impressed by the argument of the learned counsel for the appellants that an exgratia deposit debhors the provisions of the Act and an arrangement to surrender possession out side the scope of the Act would avail the appellants to dispute the claim 3f the tenants. Under S. 110(h) of the Transfer of Property Act, even after the determination of the lease, the lessee can remove the superstructure and buildings put on the demised land, while the lessee continued in pos I session of the property leased, but not there after. Under *wt Section, the lessee can contract to handover any building or superstructure erected by him to the k1ssor without compensation. This would be a matter of contract between the Parties. But the normal position under the Transfer of property Act has been altered by the provisions of the Act and such alteration was made for the benefit of those tenants who had constructed buildings on others lands in the hope that they would not be evicted so I along as they Paid the fair rent for the 4and. ,Section 13 of the Act repeals or modifies the provisions of the Transfer of Property Act to the extent necessary to give effect to the provisions of the Act.

Admittedly, in this case, what was leased was only a vacant site over which a superstructure had been put and a decree in ejectment had been passed which had remained unexecuted and the tenants had remained in possession of the same at the time when the provisions of the Act were extended and in such cases also. the tenants in posesssion would be entitled to the benefits of the Act and that was how the 'tenants also filed E. A. Nos. 467. 486 and 713 of 19-58 claiming benefits under S. 9 of the Act. Therefore. with effect from the date on which the provisions of the Act was extended to the area in question viz. 12-9-1955 the rights of the parties were governed only by the provisions of the Act and not by any other provision of law or other general law. Apart from the pro- I visions of the Act and the provisions of the Transfer of Property Act, there is no other provision of law which would govern the rights of the parties ~ to the land and the superstructure. By repealing or modifying the provisions of the Transfer of Property Act by S. 13 of the Act, the provisions of the Act alone would be applicable and if that 1*5 so. it is inconceivable that there can be an evict deposit debhors the Act or even an understanding by the tenant to surrender possession of the land and the superstructure outside the provisions of the Act.

16. The learned counsel for the appellants in A. S. No. 529 of 1982 next submitted that the suit in 0. S. No. 671 of 1978, Sub Court. Madurak was instituted by a partner of an unregistered firm and therefore, barred under Section 69 of the Indian Partnership Act. In answer to this, the learned counsel for the contesting respondents contended that in the written statement filed by the appellants, no such plea was ever raised and that no issue was also framed On that aspect and, therefore, the appellants cannot be permitted to raise such a plea.

17. Under Order 8, R. 2, C.)P. C. the defendant must raise in his written statement all matters which could show how the suit is not maintainable and in this case the written statement filed by the a;;Ilants in 0. S. No. 671 of 1978 . does not disclose that any objection had been raised by them regarding the maintanability of the suit based on Section 69 of the Indian Partnership Act. Mulla on Civil Procedure Code (19th Edition, Page 769) states that a question of fact which had not been put forward in the written statement cannot be allowed to be raised. later and cites as example the plea of non-registration of a partnership. Further, the plea regarding the maintainability of the suit by reason of the operation of Section 69 of the Partnership Act is a mixed question of fact and law and if such a plea is not raised at all, there will be no evidence relating to that aspect with the result that facts necessary for its determination would be absent. It is on account of this that courts have consistently taken the view that if the plea had not been raised in the written statement, it would not be allowed to be raised at a later stage in the proceedings. Further, unlike the provisions in the Limitation Act, there is no provision in t1te Partnership Act which compels the Court to dismiss the suit on the ground of non-registration of the firm sec. 4 even if no plea in that regard had been raised by the defendants in the suit. We may . now briefly refer to a few decisions on this aspect. Abdur Rahman and Somayya, JJ. in Goverdhan doss Takersey v. M. Abdul Rahiman, (AIR 1942 Mad 6341 pointed out that it is not easy to accept the view that the Court is bound to dismiss a suit on the ground of non-registration. of a firm suo motu, even if no plea had been raised by any of the de7 fendants in the suit. In Mohamad Ali v. Kariji Kondho Rayaguru (AIR 1945 Pat 286), the objection based on S. 69 of the Partnership Act was not permitted to be taken - on the ground that it was not taken before the lower courts and being a mixed question of fact and law. ,)t be decided without a finding of fact (I the basis of materials placed in that regard. Indeed, the decision proceeds to the extent of holding that a defendant who intends to contest the performance of a condition precedent viz., the registration of the firm, should raise this point in the pleadings and if it was not so raised, the question was not before, the Court at all. Kalyan Sahai v. Firm 1951, Rai 11) had to deal with a similar question and it was pointed out that whether a firm is registered or not is a qiftestion of fact and unless this fact is enquired into and decided, the restrictions regarding the filing of suits under S. 69 of the Partnership Act, cannot be invoked by any of the parties to the suit. The decision in Chiman Ram Bhatar v. Ganga Saha, (AJR Orissa 94) also took the Lachminarain Shambhulal (AIR view that the plea that a suit as laid is not maintainable by reason of S. 69 of the Partnership Act is a mixed question of fact and law and such a plea cannot be allowed to be raised, when it was not pleaded in the written statement. In Jalal Mohammad Ibrahim v. Kakka Mohammed Ghouse Sahib , a

Division, Bench of this Court to which one of us was a party, the question arose whether the defence regarding the non-registration of a firm and the invalidity of the decree passed in a suit relating to such a firm can be permitted to be raised in a separate suit. On a consideration of some of the decisions referred to earlier, the Division Bench held that the defence of non-registration of a firm is a plea that has to be raised in the suit itself and if it had not been so raised, it could not be permitted to be raised for the first time and more so it cannot be permitted to be raised in a separate suit. Bearing in mind the principles laid down in the decisions referred to above and the omission on the part of the appellants to raise a specific plea in that regard, we are of the opinion that it will not be open to the appellants at this stage to urge that the suit in 0. S. No. 6VI of 1978, Sub-Court. Maduraii is not maintainable by reason of S. 69 of the Partnershi13 A et. We have therefore no hesitation in rejecting this . contention of the learned counsel for the appellants in A. S. No. 529 of 1982.

18. The learned counsel for the appellants in Second Appeal No. 987 of 1982 next contended that the attachment effected by the plaintiff mi 0. S. No. 92 of 1976 was not valid and operative as it did not conform to the requirements of 0. 21, R. 49. C. P. C. Here again, we may point out that the appellants, in the course of the written statement filed in 0. S. No. 92 of 1976, did not put forth any plea relating to the invalidity of the attachment. Further, it is also seen that the appellants themselves had accepted the validity as well as the coperative nature of the attachment and it was only, on this footing they filed a claim petition in I. A. No. 527 of 1973 in 0. S. No. 72 of 1961 praying for the raising of the attachment. In the claim petition, after accepting that defendant 3 in 0. S. No. 92 of 1976 was entitled to a 114 share in "Shanti Theatre", the appellants had prayed for the raising of the attachment on the ground'that on 25-3-1973, the date of attachment, the third defendant iii 0. S. No. 92 of 19976 did not have any attachable interest, as his interest had become extinguisned by reason of the deposit of Rs. 88.940[- on 29-7-1972 in E. F. No. go of 1958 in 0. S. No. 15 of 1954. Precisely the same stand was taken by the appellants even in the course of the suit 0. S. No. 92 of 1976. At no stage of the proceedings was an objection raised touching upon the invalidity of or the inoperative nature of the attachment effected on the 1/4tb share of the defendant 3 in 0. S. No. 92 of 1976. We are therefore of the view that the appellants cannot now be heard to urge that the attachment effected in L A. No. 171 of 1972 in 0. S. No. 72 of 1961 was either invalid. or otherwise inoperative. We may also mention that the learned counsel for the appellants was unable to point out how the attachment was either invalid or inoperative. We, therefore, reject this contention of the learned counsel for the appellants as well.

19. The learned counsel. for the appellants next contended that, if at all, legal possession of the theatre might have continued with the plaintiff, defendant 3 and defendants 5 to 7 in 0. S. No. 671 of 1978, but that the physical possession was not with them in that the appellants had leased out on 14-8-1972 the theatre in favour of defendant 4 in 0. S. No. 671 of 1978 and, therefore, the benefits of the Act cannot be claimed either by the plaintiff or the third defendant or even defendants 5 to 7 in 0. S. No. 671 of 1978. We had already noticed how defendants 3 and 4 O. S. No~ 671 of 1978 who are related as father and son have not even filed any written statememt in the suit. The appellants, in the course of the written statement filed by them in 0. S. No. 671 of 1978, have not stated anything at all about the lease under Ex. A-7 dated 14-8-1972. The appellants have also carefully avoided the box during the course of the trial of 0. S. No. 671 of 1978. The 'first appellant. however, had been examined as D. W. 1 in 0. S. No. 92 of 1976: but his evidence as well as the lease on 14-8-1972 (marked as Ex. B-8 in those proceedings) rightly had not been accepted by the lower appellate court. Therefore, it may not be correct to assume that the plaintiff, defendant 3 and defendants 5 to 7 in 0. S. No. 671 of 1978 were; dispossessed by the appellants and physical possession was banded over to the lessee, the 4th defendant in 0. S, No. 671 of 1978. We have seen already how the appellants had obtained a decree for ejectment in respect of the theatre in 0. S. No. 15 of 1954, Sub-Court, Madurai, as far back as 10-1-1955 and how inspite of time having been granted till 12-3-1958, vacant possession was not surrendered by the owners of the superstructure, who were in possession. It was to secure possession after the removal of the superstructure. the appellants filed E. P. No. 90 of 1958 which had been kept pending till 20-9-1970 when the joint endorsement was made and subsequently in E. A. 201 of 1971 in E. P. No. 90 of 1958 or. 31-7-1972 time for depositin2 the amount of Rs. 88,940/- was further extended by three months from, that date. It. does riot. appear how, when proceedings had been taken. by the appellants to secure possession from those in occupation, the appellants claimed that they had come into physical possession from those in occupation, the appellants claimed that they hL.J come into physical possession of the theatre, while physical possession all the while continued with the tenants. Having regard to the decree in ejectment obtained by the appellants and the execution proceedings taken for the recovery of possession of the property, it is clear that the appellants could not have taken physical possession of the theatre at all from the tenants, who were admittedly in possession.

20. Apart from this, the very recitals in the lease deed under Ex. A-7 (Ex. B-8in the Second Appeal) would disclose that the appellants could not have been in physical Possession of the theatre. Therein, after referring to the procecings in 0. S. No. 15 of 1954 to recover possession of the theatre and the filling of E. P. No. 90 of 1958 to execute the decree for possession in-4-the joint endorsement for the payment crf Rs. 68,940/ towards compensation in respect of the superstructure. the lessors (Appellants herein) have stated that they have not been able to deposit the amount of Rs. 88,940/- that the lessee should deposit the same and further that, on the strength of the order passed in E. P. No. 90 of 1958, the lessors should the possession of the property and had over possession to the lessee and that from that date, the lessee shall be liable today-rent to the lessors. That the appellants -.were not in possession of the theatre even on the date of Ex. A-7 is thus clearly established. Ex. B-10 addressed by the appellants sometime in October 1972 to defendant 3 Sundaram Chettiar would also show that the -appellants were out of possession. There is no material placed before the court by the appellants or by the lessee, the fourth defendant in 0. S. No. 671 of 1978, to establish that there was any change in the physical possession of the theatre subsequent to the institution of the suit in 0. S. No. 15 of 1954. We may also point out that the learned District Judge, Madurai, had considered the truth of the lease deed dated 14-8-1972 stated to have been executed by the appellants in favour of defendant 4 in 0. S. No. 671 of 1978. It has been found that the appellants, defendant 3 and his son. have colluded together and the defendant 3 had made available amounts to be deposited into court through his son with the object of placing the superstructure of "Shanti Theatre" nominally in the name of appellants with a view to defeat the attachment. That finding recorded by the lower appellate court had not been in any manner challenged before us. . Takinz. this also into consideration, we have no hesitation in concluding that the lease deed dated 14-8-1972 was nothing but a make believe and the result of collusion between the appellants, the defendant 3 Sundaran Chettiar and his son. We therefore hold that the lease was of no consequence and as pointed out earlier, the physical possession of the 'Shanti Theatre" continued with the plaintiff, defendant 3 and defendants 5 to 7 in 0. S. No. 671 of 1978, Sub-Court, Madurai, in spite of the decree for ejectment in 0. S. No. 15 of 1954. As that decree had not been put into execution when the provisions of the Act were extended to the area in question and the plaintiff, defendants 3 and defendants 5 to 7 in 0. S. No. 671 of 1978 continued in possession. they were, as tenants defined in the Act, entitled to take advantage of the provisions of the Act.

21. A faint attempt was made by the learned counsel for the apellants to contend that the provisions of the Act ma-w not apply to the defendant I 2s the transfer in his favour was made subseqent to 12-9-1955 when the provisions of the Act were extended in the area in question We may observe that this objection had not been raised in the course of the proceedings in the court below. There is no evidence on behalf of the appellants to show how the defendant 3 is precluded from claiming the benefits of the Act. We may point out that 4n E. A. No. 713 of 1958 in 0. S. No. 15 of 1954, the defendant 3 urged that he was entitled to the benefits of the Act and on that footing claimed the benefits under S. 9 of the Act. In the course of these proceedings, the appellants did not deny the status of the third defendant as a tenant entitled to the benefits of the Act. On the contrary, the result of the adjudication was that the defendant 3 was also held entitled to the benefit of compensation under S. 3 of the Act. In any event, the inclusive definition under S. 2 (4) (ii) (b) of the Act would apply to the defendant 3 and therefore, there is absolutely no substance in thi~ contention of the learned counsel for the appellants. No other point was urged. Consequently, the appeals fail and are dismissed with costs of the respondent in A. S. No. 529 of 1082 and the first respondent in S. A. 987 of 1982.

22. Appeals dismissed.


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