Rajagopala Ayyangar, J. - (1.) THE Civil Revision Petition and the Civil Miscellaneous Second Appeal in the alternative have been filed by the second defendant in O.S. No. 40 of 1945 on the file of the District Munsiff's Court of Kumbakonam in the following circumstances. I shall be referring to the 2nd defendant as the appellant in the rest of the judgment.
(2.) O .S. No. 40 of 1945 was a suit brought by the plaintiff for redemption of a usufructuary mortgage executed in favour of the first defendant, wherein the second defendant, who is the present appellant, was a co -mortgagor. The redemption suit was decreed, the preliminary decree having been passed on 30th April, 1947, and this was confirmed on 16th April, 1948, by the Sub -Court of Kumbakonam on appeal. The 2nd defendant and the plaintiff deposited the mortgage amount of Rs. 1000 in equal moieties on 30th July, 1947, and the first defendant drew the amount from Court on 22nd September, 1948. The present application LA. No. 781 of 1950, is for the purpose of passing a final decree for redemption under Order 34, Rule 8, of the Civil Procedure Code and for directing the first defendant to deliver possession of the mortgaged properties and render accounts in respect of future profits from 22nd September, 1941, until delivery of possession. This application was preferred by the second defendant, who, as stated before, was one of the mortgagors. The complications in the case have arisen out of the fact that subsequent to the usufructuary mortgage in favour of the first defendant, he let the third defendant into possession as a tenant under him, and it is the obstruction caused by this tenant that has been responsible for the proceedings now before this Court, and the effect of this obstruction on the rights of the parties is the subject -matter for adjudication in the Civil Revision Petition and the Civil Miscellaneous Second Appeal now before me. To continue the narration of the facts immediately after the receipt the mortgage money from Court on 22nd September, 1948, the first defendant issued a notice (Exhibit R. 5) to the third defendant, his tenant, directing him to pay the rent subsequent to 20th September, 1948, to the plaintiff and the 2nd defendant, the appellant here. He also gave another notice, dated 25th September, 1948, (Exhibit R. 1) to the appellant and the plaintiff directing them to receive the rent subsequent to 20th September, 1948, from the third defendant. The third defendant sent a reply (Exhibit R. 6) on 4th October, 1948, disputing the amount of arrears of rent due by him, but not questioning his status as a tenant or his liability to pay rent.
(3.) AFTER the despatch and receipt of these notices the appellant filed R.C.A. No. 132 of 1950 before the Rent Controller, Kumbakonam, for an order of eviction against the third defendant, the tenant in occupation of the suit property. In this petition he claimed that he was the landlord and the third defendant, the respondent to the petition, was the tenant of the non -residential building which was described in the schedule attached, and that the tenant had not paid any rent to him or to the plaintiff in the suit, who were the persons entitled to receive the rent by virtue of the decree in O.S. No. 40 of 1945. He also stated that the tenant had sub -let -the entire building and had further used the building for purposes other than that for which it was leased. On these ground he prayed for an order for eviction and for his being put in possession of the property, under the orders of the Court. The third defendant resisted that petition on the ground that the application was not maintainable and that without obtaining symbolical delivery against the first defendant no claim for ejectment could be maintained against him. This preliminary objection was upheld by the Rent Controller and the appellant took the matter in appeal to the appellate authority, the Subordinate Judge of Kumbakonam This appeal was dismissed, the appellate authority also holding the preliminary objection to be well -founded.;