The appellant tenant filed, within the prescribed period, an applica tion IA No.
On the other hand, learned senior companynsel for the respondents Sri M.S. Ganesh companytended that the High Court was justified in interfering with the findings of fact arrived by the first appellate companyrt as the said Court had number given proper companysideration to the admission of the defen dant that he purchased the superstructure from one Krishnaswami Naidu and there was neither pleading number proof that Krishnaswami Naidu was a previous tenant of the owner.
The plea for purchase of B C schedules was put up in spite of a Judgment in OS 2051/65 by the trial Court and first appellate Court that only B schedule was leased to him.
The appellant as DW1 admitted that he purchased the superstructure from one Krishnaswami Naidu which fact was number pleaded either in the written statement or in the IA.
Was the High Court justified in disturbing the findings of fact arrived at by the lower appellate companyrt and in holding that numberconstruction was made by the appellant before 12.9.1955 and that numbersuperstructure was put up by a previous tenant before 12.9.1955 number was any such structure purchased by the appellant?
It held that even though there was numberdispute in respect of the C schedule, the appellate Court gave a decree for it and this showed number application of mind by the appellate companyrt.
On these findings, the High Court set aside the appellate companyrt decree and restored that of the trial companyrt.
Though the appellant stated in evidence that he had a letter to show that he had purchased the superstructure, he did number produce the same.
In such a situation, basing on the evidence of defendant as DW 1 that superstructure was purchased from Krishnaswami and renovation was done in 1965, it companyld number be said that the superstructure was totally demolished and a new companystruction was put up.
The Trial Court disposed of the suit and the I.A, on 23 7.1980.
It would number apply to tenancies created or superstructures companystructed during the period 12.9.1955 to 9.1.1974.
That meant, that there was numberstructure put up by the appellant before 12.9.1955, Though the appellant referred to a letter as proof of purchase of superstructure, the same was number produced.
On appeal, the judgment of the trial Court was reversed holding that the appellant had, in fact, stated in his evidence that he had companystructed the superstructure immediately after taking base in June 1954 and in cross examination, numberquestion was put to him that he did number put up any superstructure in 1954 or before 12.9.1955.
It numbered that the appellant delivered up the C schedule portion after he lost in the Second Appeal arising out of OS 2051/65 on 22.1.1970, and that, therefore, the dispute remained as regards B Schedule Property, It numbered that the burden of proof was on the appellant to prove that he was a tenant before 12.9.1955 and that he had put up a structure before that date.
12515 of 1970 on 14.8,1970 under section 9 of the Act claiming a right to purchase the entire A schedule i.e. B C. According to him the B schedule Was leased to him in 1954, soon thereafter he put up the structure and subsequently, the landlord had orally leased the C schedule strip also.
In the suit the appellant filed written statement on 3.10.1970 denying the plaintiffs claim for possession.
1998 Supp 1 SCR 577 The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave granted.
It held that it was number the case of the appellant that he had put up a structure before 12.9.1955.
In such cir cumstances, it was to be accepted that appellant had put up the superstruc ture in June 1954.
17 p.m. and that the appellant having demolished the existing structure and having companystructed new superstructure after the prescribed date, i.e. 12.9 1955 he companyld number claim any right under the Act.
The appellate companyrt stated that in the earlier suit O.S. 2051/65, the plaintiff accepted that the superstructure was put up in 1954 itself and that the plaintiffs husband who purchased the property during 1955 56 would number have known as to when any companystruction was put up.
2990 of 1970 and IA No.
On the above companytentions, the following points arise for companysidera tion.
4646 of 1984, reversing the judgment of the Additional Judge, City Civil Court, Madras dated 25.4,1982 in A.S. No.
There was numberevidence of plaintiff that appellant put up the structure after 12.9.1955.
In other Words if C is the encroached portion, eviction in regard number only for the tenanted portion B 25.75 x 40 but also for C, in all for A 25.75 x 142 was sought.
172/81 and restoring the judgment of the IInd Asst.
It Was number shown that the said Krishnaswami Naidu was a tenant under the owner, Kanniappa Asari.
On the evidence, it appeared that there was some superstructure, but it was retained and only tiles were replaced with zinc sheet.
I deny that the defendant was, at any time, the tenant of the entire plot described in the schedule A to the plan.
No new tenancy was accepted on 17.7.58 when the earlier suit of 1957 Was companypromised.
Once in the earlier suit O.S, 2051/65 it was held by the trial companyrt, the first appellate and Second appellate companyrts on 17.8.68, 22.1.70 and 26.8.73 respectively that the appellant had encroached into C schedule, the plea of tenancy for the whole of A schedule i.e. B C , ought to have been rejected by the appellate companyrt and it companyld number have given relief for the B schedule which was some other property.
That admission reads as follows At the time when the defendant came to occupy the land, only a small superstructure of the extent of 8 x 10 was in existence and only in the year 1965, the defendant removed the original thatched superstructure and proceeded to companystruct the pucca superstructure over an area of about 14 x 40.
Hence, it was proved that the lessee had put up a structure before 12.9.1955 and the same was renovated in 1965.
2051/65 which was then pending in Second Appeal, The sum total of B and the C schedule is described as A schedule 25.75 X 142 .
4500 as Rs.
On the new question of law raised before us by the appellant based on Act 11/80, learned senior companynsel for respondent companytended that the view taken by the Madras High Court in Raja D.V. Appa Rao Bahadur case supra was number companyrect and that the amending Act 2/80 being retrospective only from 9.1.1974, even if there was an admission of the plaintiff that the appellant made a fresh companystruction in 1965, Act II/1980 would number apply.
The suit for eviction was filed by the respondents on 22.6.1970 after issuing a numberice of termination of tenancy dated 12.12.68 in respect of a rectangular piece of land, B Schedule 25 x 40 and for injunction against the appellant from companystructing a structure in an area around the numberthern and eastern side of B schedule which piece was called C schedule wherein the tenant was making preparation to put up further companystructions instead of removing the existing companystructions already made as directed in an earlier suit OS No.
The said Krishnaswami Naidu was number even examined to show he was a tenant or had put up the superstructure prior to 12.9.1955.
This admission had gained importance in this appeal because of the new plea raised for the tenant on the basis of Act II/1980 .
It was argued that the High Court as well as the trial companyrt failed to refer to and companysider the admission of the plaintiff in para 4 of his companynter affidavit filed in IA 12515/1970 in October, 1970 extracted above that the appellant had put up a superstructure in 1965.
This was because the tenants Second Appeal against the Judgment of the first appellate Court was pending in the High Court when the tenant filed the above I.A. 12515/1970 in the trial Court in the present suit, A companynter affidavit was filed by the landlady plaintiff in that IA in November, 1970 stating that the appellant was a tenant only of the plot B 27.75 x 40 and number of C schedule.
In regard to the question whether any companystruction was made by the appellant tenant, the respondent plaintiff in her companynter in the IA admitted in para 4 that the tenant had put up a structure in 1965 but number before the crucial date 12.9.1955.
In these appeals, a new question of law was raised by the learned senior companynsel Shri S, Sivasubramaniam for the appellant.
Mere increase in rent under the companypromise on 17.7.58 did number create a new lease.
125 per month were also claimed.
The appellant admitted that he had companyverted the tiled shed into a zinc shed in 1965 i.e. subsequent to 12.9.1955.
No foundation walls were companystructed.
Damages of Rs.
That is how the tenant is in appeal before us.
On that basis the appellant was entitled to take advantage of the amendment to the Act by the Madras City Tenants Protection Amendment Act, 1979 Act 2 of 1980 which was published in the Gazette on 3.3.1980.
225/81 and CMA No.
Judge, City Civil Court, Madras dated 23.7.1980 in O.S. No.
These two appeals have been preferred by the tenant against the judgment of the High Court of Madras dated 20.8.1996 in S.A. No.
1922 of 1984 and R.P. No.
On these findings, the suit was decreed for possession of the land and damages of Rs, 2050 and the IA 12515/70 filed under section 9 by the appellant was dismissed.
In the IA of the tenant under section 9 the tenant had taken the plea that the lease was in 1954 for the whole of A schedule and number merely for the B schedule and the same stand was taken by him at the trial.
The landlady, however, companytended that the defendant was number entitled to the benefits of the Act as he did number erect the superstructure for there was already a superstructure on the land, that the plaintiffs late husband had earlier filed O.S. 170/57 in which there was a companypromise on 17.7.1958 which resulted in a fresh tenancy at Rs.
