Plaintiff not entitled to recover possession.

JUDGMENT: The plaintiff in the suit is the appellant.

2. The case in brief is as follows: The plaintiff filed the suit for recovery of possession of the suit property. The plaintiff took the suit property from the original owner named Naga Naicker on a monthly rent of Rs.14 to run a cycle shop from 19.10.1962. In July, 1982, the plaintiff was asked to vacate the property and rent was also refused by the landlord. The plaintiff sent the rent by money order, but it was refused. On 17.5.1983, the plaintiff met with an accident and taking treatment for two months and taking advantage of this, the 1st defendant in collusion with the 2nd defendant, demolished the building in the property and removed the articles as well as cash. A police complaint was also given, but no action was taken. The defendants are trying to put up new building in the property after taking forcible possession.

The defendants resisted the suit stating that the plaintiff was running the cycle shop in the premises. The first defendant purchased the property along with other site from one Naga Naicker and his son on 5.7.1982 for a sum of Rs.3,400. Even prior to the sale in his favour, the 1st defendant insisted to get delivery of possession. The plaintiff also agreed to vacate on payment of a sum of Rs.1,000 and the 1st defendant paid a sum of Rs.1,000 to the plaintiff on 2.7.1982 and after receiving the same only, he vacated the property and delivered possession. In fact, the plaintiff also acknowledged the delivery of possession of the suit property to the 1st defendant by attesting the sale deed dated 5.7.1982. The 1st defendant after purchase, demolished the building and put up a new construction after getting approval from the authorities concerned. The old building was not in existence and the plaintiff is not entitled to claim any relief.

The trial Court framed 5 issues and on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-34 were marked and on the side of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-4 were marked. The trial Court decreed the suit and aggrieved against this, the defendants preferred A.S. No.84 of 1987 on the file of II Additional District Court, Trichy and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit and aggrieved against this, the plaintiff has come forward with the present second appeal.

3. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:

(1) Whether the learned District Judge was right in holding that the suit for re-delivery is time barred since laid beyond 6 months after dispossession?

(2) Whether the judgment of the lower appellate Court is vitiated in not placing the burden of proof on the defendants that the plaintiff has surrendered his rights in the suit property?

4. Heard the learned counsel for the parties.

5. It is not in dispute that the appellant/ plaintiff was a tenant in the suit property on a monthly rent of Rs.14. The appellant was called upon to vacate the property and the erstwhile landlord refused to collect the rent. The defendants also demanded the plaintiff to vacate the property and because of the accident on 17.5.1983, the plaintiff was taking treatment for a period of two months and taking advantage of his position, the defendants demolished the building in the property and removed the articles also and attempted to put up construction.

6. Learned counsel for the appellant/ plaintiff contended that the lower appellate Court erred in over emphasizing the attestation of Ex.B-1 by the plaintiff and failed to see that the attestation was made by the plaintiff to safeguard his position as a tenant in the premises and that mere alteration will not prove delivery of vacant possession. The suit was not filed under Sec.6 of the Specific Relief Act. The Court below also erred in concluding that since the old building was demolished

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