C.V Gokulapathy And Others v. K.S Venkatarama Sarma, Advocate, Receiver.

(Delivered by V. Ramaswsmi J.)

These are appeals by the defendants in O.S Nos. 867, 1109 and 1411 of 1962 on the file of the City Civil Court, Madras, against the decrees directing eviction from the suit plots.

The plaintiff in all the suits is the Receiver appointed by the High Court in O.S.A No. 52 of 1960 in respect of the suit properties and other properties belonging to one late P.S Narayana Iyer and his sons. The plaint allegations were as follows: The suit properties were comprised in R.S No. 132, 244/2 and 133. They belonged to the estate of P.S Narayana Iyer. They were purchased by Narayana Iyer and his son Krishna Iyer. These lands were cultivated by Narayana Iyer and Krishna Iyer through one Lakskmana Naicker. Krishna Iyer predeceased his father. After the death of Narayana Iyer, there were disputes relating to the estate and a suit was filed in the High Court and in those proceedings, the plaintiff was appointed as Receiver. The plaintiff on enquiry found that the defendants had trespassed into the properties subsequent to the death of Narayana Iyer in 1952. Lakshmana Naieker gave a statement to him, in which he admitted that Narayana Iyer was cultivating the properties through him and that after his death, on account of the pending litigation, no one gave necessary advance for cultivating the lands and the therefore he discontinued the cultivation and the properties remained vacant. It is the farther case of the plaintiff that on account of the absence of the owners, Lakhmana Naicker appears to have allowed the defendants to trespass into the properties in 1952 or 1953. After issuing notices calling upon the defendants to vacate and hand over vacant possession, the plaintiff has filed the present suits praying for a decree directing the defendants to vacate and deliver vacant possession and for mesne profits.

The defendants contended that Lakshmana Naicker was not cultivating the lands under Narayana Iyer and Krishna Iyer, but Lakshmana Naicker was in occupation of the lands in his own right and as owner of the properties he had leased out portions of the properties to the defendants and that the defendants had put up pucca superstructures thereon and were enjoying the same. They further contended that they were entitled to the benefits of the City Tenants Protection Act.

These suits were tried along with some other suits. All the suits Were decreed. Only the defendants in these three suits have filed the present appeals and the defendants in the other suits have not filed any appeal.

The learned counsel for the appellants in the appeals contended that Lakshmana Naicker was the owner of the properties and that he leased ant the properties to the defendants and that as lessees, they have pat up superstructures, and that therefore they are entitled to the benefits of the City Tenants Protection Act. Alternatively he contended that they have bona fides made improvements by filling up pits in the suit plots and putting up superstructures thereon and that therefore under S. 51 of the Transfer of Property Act, they are entitled to be paid compensation for the improvements effected before they are ordered to be evicted from the suit properties.

The plaintiff claimed that Narayana Iyer and his son Krishna Iyer were the owners of the suit properties and that the owners were cultivating the lands through one Lakshmana Naicker and that the said Lakshmana Naieker was not the owner of the suit properties.

[The discussion of the facts is omitted —Ed.]

If Lakshmana Naicker was not the owner, the defendants could not get any legal right under the tenancy agreement said to have been executed by Lakshmana Naicker and therefore the defendants could not get any rights under the City Tenants Protection Act as well.

The next contention of the learned counsel for the appellants, based on S. 51 of the Transfer fer of Property Act, is not also tenable. First of all, the trial court has found that the defendants were not bona fide occupants in their own right and that they are only squatters and trespassers. It is seen from the evidence of D.W 1 that Lakshmana Naicker told him that it was the owner who asked him to let out the lands and that after he took the properties on lease on two occasions, some two Brahmins went there and that Lakshmana Naicker told him that they were the owners of the lands. D.W 2 (the first appellant in A.S No. 329 of 1964) also admits in cross-examination that he did not ask Lakshmana Naicker about his right after the suit was filed, because he was convinced that he is not the owner of the suit properties. D.W 3 is the brother of D.W 2. and he affirms to what is stated by D.W 2 D.W 4 admitted in cross-examination that he did not know who the owner of the properties was and that he knew definitely that Lakshmana Naicker was not the owner. D.W 7 also admitted that he did not ask Lakshmana Naicker regarding his right over the suit properties either at the time of the lease or at the time of the salt. D.W 8 also admits that he never asked Lakshmana Naicker about his rights. Thus, the evidence discloses that the defendants could not have acted bona fide in making the improvements on the properties. Even assuming that they made the improvement, bona fide believing that the said Lakshmana Naicker was the owner of the properties and that he was entitled to lease the same, we do not see how S. 51 of the Transfer of Property Act is applicable to the lessees, the appellants herein. S. 51 relates to improvements made by bona fide holders under defective title. A lessee, in our opinion, cannot rely on this section. The lessee's rights are only those provided under S. 108, unless there is a contract or local usage to the contrary. The defendants have not pleaded any contract or local usage which enables them to get the value of the improvements. Their only right was that provided under S. 108(h) and the decree of the lower court has given them this right by permitting them to remove the superstructures constructed by them.

In the foregoing circumstances, we consider that there are absolutely no merits in these appeals and we dismiss the same with costs. The defendants are given three months' time to remove the superstructures and vacate and hand over vacant possession to the plaintiff.

V.C.S