(1.) The defendant is the appellant in this second appeal. The suit was for recovery of possession of the property together with arrears of rent of Rs. 1541 and also for future rent. The trial court refused the relief for possession but granted a decree for Rs. 163-5-4 being arrears of rent for the period from 15-11-1943 to 23-21944. On appeal by the plaintiff, this decision was reversed by the learned District Judge and the suit was decreed for possession and also for arrears as prayed for. Provision was also made for future rent at the rate of Rs. 50 per mensem from 108- 1946 till date of delivery of possession.
(2.) The suit was based on tenancy and court fee was also paid on that basis. The suit property belonged according to the plaintiff to his joint family. One Govmdaswami and Velappa Naidu were two brothers, wnether they were divided or undivided is a matter in dispute between the parties. By his first wile, Govindaswami had three sons, Venkataswami who died in 1935, Narayanaswami who died long ago and Ramaswami who died on 12-2-1943. By his second wife, he had two sons, the plaintiff, Ranganathan, and Balakrishnan. Velappa Naidu had no sons, but by his first wife he had two daughters Rangalu Animal & Rajammal & Rangalu Animal had three sons. Velappa Naidu also married a second wife Chinnammal. Valappa Naidu died sometime in 1919. On 15-3-1937 under Ex. B. 3, Ramaswami, who was the then manager of the family and the minor sons of Venkataswami, sold a half share in the house for a sum of Rs. 1000 to Palaniswami, his brother-in-law, i.e., sister's husband. Notwithstanding the sale, Ramaswami seems to have continued m possession either in his own right or partly in his own right and partly as the agent of Palaniswami. On 7-12-1938 the property was leased to the defendant for a period of five years and Ex. A. 1 the rent deed dated 20-5-1340 was executed between Ramaswami and Guruswami. After the death of Ramaswami on 12-2-1943, Ranganathan, the present plaintiff, who became the family manager, sued the defendant in S.C.S. No. 485 of 1943 for rent due for the period between 7-3-1943 and 7-6-1943. Exhibit A. 2 is a copy of that plaint. The suit however did not proceed to trial and was settled on 18-11-1943 (Vide Ex. B. 1) by an endorsement made on the plaint that a decree may be passed for a sum of Rs. 47-12-0 against the defendant in favour of the plaintiff. The Question of repairs to the house was left open. In pursuance of this endorsement, a decree followed. Vide Ex. A. 2(b). Before the period of five years expired on 22-11-1943 the defendant issued through his lawyer a notice Ex. A. 3 claiming a certain amount for repair charges and in that he added a note that he had to vacate the aforesaid building in December and as no other building was available due to war conditions, the period of lease might be extended for another year under the Defence of India Act. To this, Ranganathan sent a reply Ex. A. 4 on 6-12-1943. The lease expired on 712- 43 and there was no assent on the part of Ranganathan to extend the term of the lease. On 7-1-1944 Palanisami's sons, Palaniswami having died by that date, instituted a suit O. S. No. 46 of 1944 against the present defendant who was impleaded as the third defendant and the plaintiff and his brother who were impleaded as defendants 1 and 2, for partition of the house into two halves and for recovery of possession of a 1/2 share together with profits. In that, it was alleged that, Ramaswami, being the maternal uncle of the plaintiffs and a resident of Coimbatore, and the plaintiffs being residents of Kanur village, Avanashi taluk, Ramaswami was allowed to rent the house for the benefit of his brothers defendants 1 and 2 and also for the benefit of the plaintiffs. The lease to this defendant on 20-5-1940 is claimed therefore to be on behalf of these and also on behalf of other members of the family. In the same year, the plaintiff filed O. S. No. 132 of 1944 Sub Court, Coimbatore. Exhibits. 2 is the plaint for setting aside the alienations made by Ramaswami and in that suit he impleaded as party the present defendant as the 11th defendant, as by that date the defendant obtained two sale deeds for the two halves of the house viz., Ex. B. 4 dated 23-2-1944 from Chinnammal, the widow of Velappa Naidu, Rangalu Ammal the daughter and the daughter's sons of Velappa Naidu, and Ex. B. 6 dated 3-3-1944 from Palanisami's widow Rukmini Ammal and his sons. In this suit however the plaintiff was put to election and the suit as against the 11th defendant was dismissed, as he elected to proceed against the other defendants. The suit filed by Palaniswami's sons O. s. No. 48 Of 1944 was dismissed as settled out of court on 7-3-1944, four days after the execution of the sale deed by Palaniswami's widow and sons, Ex. B 6. There is an endorsement on the plaint by the advocate on 7-3-1944 that the matter was settled out of court and therefore not pressed. This fact, though it does not appear from Ex. B. 2, the typed copy of the plaint filed in that case, was admitted on behalf of the respondent by his advocate, who produced a certified copy of the plaint with the endorsement. The plaintiff Ranganatham filed the present suit on 9-8-1946 for recovery of possession and rent basing his suit on the tenancy evidenced by Ex. A. 1.
(3.) The defendant pleaded, inter alia, that he became the owner of the property by reason of his purchase under the two sale deeds Ess. B. 4 and B. 6 of the two halves of the house from Velappa Naidu's representatives and from Palaniswami's widow and sons. He therefore contended that the relationship of lessor and lessee between him and the plaintiff was determined and that the suit based on tenancy could not be decreed. The trial court on these facts held following the decision in -' Md. Hussain v. Abdul Gaffoor', AIR 1945 Mad 321 (A), that the relationship of lessor and lessee had ceased to exist by reason of the purchases, but that he became the owner of a half share of Velappa from 23-2-1944 but as regards the other half covered by Ex. B. 6 got from Palaniswami's widow, the defendant was estopped from pleading title as it practically amounted to saying that Ramaswami the lessor had no title on the date when the tenancy was created. The estoppel was based on Section 116 of the Evidence Act, but as the suit was based on tenancy and no partition was permissible, he refused the relief for possession but granted a decree for rent for 15-11-1943 to 23-2-1944 for the one half covered by Ex. B. 6 viz., for a sum of Rs. 162-5-4.;