MITTER, J. - (1.) THESE are two appeals by Special Leave from a common judgment in two Second Appeals Nos. 1623 and 1639 of 1963, disposed of by the High Court of Judicature at Madras on 15th September, 1967. The present appeals are by the two defendants in two suits for ejectment filed in the Court of the Subordinate Judge of Nilgris in the year 1960. The Subordinate Judge found against the plaintiff but on appeal the District Judge reversed that finding and the High Court in Second Appeal upheld the District Judge's decision.
(2.) THE relevant facts are as follows. On 3rd February, 1941, a lease deed was executed between one Abdul Rahiman Dulla Sait (lessee) and one Mohamed Hashim Sait (Lessor) in respect of Ac. 2-00 of land in Goel Mohamed's compound being part of S.No. C-316 for a period of 10 years from 29th January, 1941, with an option of renewal for a further term often years at an annual rent of Rs. 260 excluding water tax and the taxes on the buildings and sheds which had been erected by the lessee at his own cost. The lessee authorised the landlord in case of default in the payment of the yearly rent to confiscate the said building and sheds. It was a further term of the lease that at the expiry thereof the lessee would be at liberty to remove at his own cost all the materials of the buildings and sheds which had been erected on the land within two months from the date of the said expiry. The lessee hypothecated the buildings and sheds as security for the payment of the yearly rent. In case of renewal of the lease for another period of 10 years, the lessee was to execute a fresh lease for the said period, the rates and taxes on the land having to be borne by the lessors. It appears that the lessee put up at his own cost and risk a cinema hall and some other buildings over the demised land and enjoyed the same as a lessee. In 1945 the lessor created a trust in respect of the demised property and other properties by a deed of trust dated 21st February, 1945, and appointed himself and Haji Abdul Rahim Saite the trustees of the said trust. The original lessee paid rent to the trustees, upto March, 1948, and thereafter the 2nd defendant-appellant paid the same. The option of renewal of the lease was not exercised but the lessee continued to occupy as before from year to year. In 1957, the defendants agreed to pay rent at Rs. 500 per annum. They started to make default in payment of the rent from the month of June of that year. On 7th July, 1959 the trustees decided to determine the lease after the expiry of the yearly lease on 29th January, 1960, and gave notice to the tenants accordingly. On 13th November, 1945, there was another lease between the said trustees and one Thiruvengadam in respect of a portion of the land bearing S.No. 434/1 measuring about Ac. 0-50 for a period of 7 years at an annual rental of Rs. 350 with an option of renewal for a further period of not more than 8 years on the same terms and conditions but at an increased rental of Rs. 400 per annum. The lease provided that the rent of the land for the first seven years was to commence from 1st January, 1945. The lessee was to have the right to use the land as a business place putting up shelters, erections and fixtures required for running his business at his own cost but he was not to have any right to remove or cause the same to be removed either before or after the expiration of the period or when it became necessary for the lessee to vacate the land for default in payment of rent. The lessee was further not to use the building as a cinema hall without the written permission of the lessor. The lessee exercised his option of renewal and got it for a further period up to 31st April, 1959. He however did not vacate the land and give possession thereof to the lessor in spite of demands.
(3.) A common defence taken in both the suits was that the property demised to the defendants had actually vested in a family trust even as early as 1918 and Hashim Sait had no right to deal with the same as lessor in 1941 nor was he competent to create the trust in 1945 and hence the plaintiffs could not institute the suit. By the amendment of written statements in both the suits the defendants raised a plea that the suit was barred under the Madras Buildings (Lease and Rent Control) Act, 1960. The Subordinate Judge found that the plaintiffs had no right or locus standi to maintain the suit; but he also held that the said Act did not apply to the suit property. ;