D.V. SANJEEVI NAIDU Vs. M.N. CHITTIBABU MUDALIAR

JUDGEMENT

(1.) THESE two appeals arise out of further proceedings in C. S. No. 115 of 1947 the main appeal (O. S. A. No. 102 of 1949) from which we have just disposed of. As already mentioned, in this suit Sanjeevi claimed not only possession but also mesne profits, and Rajagopalan J. directed that mesne profits should be ascertained by the Official Referee in proceedings subsequent to the decree. The Official Referee accordingly ascertained the mesne profits and his report came up for consideration before Rajagopalan J. who accepted the figures arrived at by the Official Referee and granted a decree to Sanjeevi for mesne profits on that basis by his order dated 2 -11 -1950. O. S. A. No. 133 of 1950 is by Chittibabu against the order. The main ground of appeal is that he is not liable in mesne profits as he must be deemed to be a tenant.

(2.) SANJEEVI filed an execution petition, E. P. No. 34 of 1950 for delivery of possession. Chittibabu raised the objection that notwithstanding the decree he was not liable to be evicted because of the provisions of Section 7(1), Madras Buildings (Lease and Rent Control) Act of 1949. The Master before whom the execution petition came on for hearing first, upheld Chittibabu's contention and dismissed the execution petition. On appeal to the Judge in Chambers, Krishnaswami Nayudu J. confirmed the order of the Master and held that execution could not issue as Chittibabu must be deemed to be a tenant entitled to the protection of the Act. O. S. A. No. 70 of 1950 is by Sanjeevi against this order.

(3.) THE contention on behalf of Chittibabu is that he came into possession of the building as a tenant under the lease executed by Mohanasundara in his favour on 15th April 1944 End that though that lease expired in 1947 he must be deemed to be holding over as a tenant, since his claim under the agreement to sell in his favour had been negatived by Court. On the other hand, Mr. Srinivasachari for Sanjeevi contended that though he might have come into possession as a tenant he subsequently set up title in himself as owner and denied his title to the property. On account of this disclaimer of his status as a tenant he could not after his failure in the suit be permitted to fall back upon his original position. According to learned counsel a person who has denied that he was a tenant could not, after such denial, be treated as a tenant within the meaning of the Act.