Maintainability of suit for non-issuing of notice cannot be waived.

First defendant in O.S.No.43 of 1991 on the file of Sub Court, Tuticorin is the appellant herein.

2. Suit filed by plaintiffs is one for eviction of defendants and for damages for use and occupation on the following allegations:

Plaintiffs purchased the plaint property as per two sale deeds dated 11. 1967 from its previous owners. At the time when they purchased the property, there was a mortgage and the same was also redeemed on 10. 1972. Even at the time of sale, first defendant was in possession of property on the basis of registered lease deed dated 212. 1957 and the period of tenancy as per the lease deed was from 1. 1958 to 35. 1966 on a monthly rent of Rs.40. Lease deed further provided that lease is liable to be renewed if lessor so agrees on a monthly rent of Rs.45. But first defendant did not obtain any lease deed nor lease arrangement was renewed thereafter. It is further averred that after first term of renewal of lease deed ended on 35. 1976, first defendant is liable for damages for use and occupation at the prevailing market rate from 6. 1976. But plaintiffs are claiming damages only from 1. 1987 to 310. 1989, though arrears are payable from 10. 1972. It is also stated in the plaint that first defendant is lessee of vacant site and put up construction. Second defendant has been impleaded because he is in occupation of portion of property as sub-tenant of first defendant. According to plaintiffs, original sub-lessee was standard vacuum oil company which has now become Hindustan Petroleum Corporation Ltd. Plaintiffs have offered Rs.2,000 as value for the superstructure since City Tenants Protection Act do not apply for the area in question. A notice was also given after terminating tenancy.

3. In the written statement filed by appellant he admitted the rental arrangement. It is admitted therein that the original lease expired on 35. 1966. According to him, as per terms of lease, lease was renewed for further period of ten years from 6. 1967. It is further stated that plaintiffs became entitled to possession only on discharge of mortgage on 10. 1972. According to him, they have already sent draft lease deed to the then owner. He has also said that it is not a monthly tenancy. Cheques are paid only once in six months. When cheque was issued, the same was returned. First defendant thereafter was depositing rent in Bank after intimating the same to plaintiff. Claim for damages cannot be allowed since defendant is entitled to the benefits of Tamil Nadu City Tenants Protection Act. Plaintiffs can claim only fair rent. He also said that he is prepared to buy scheduled property and is also filing separate petition for the said purpose.

4. On the above pleadings, parties went on trial. Exs.A-1 to A-6 were marked on the side of plaintiffs and Exs.B-1 to B-19 were marked on the side of defendants. P.Ws.1 and 2 gave oral evidence on the side of plaintiffs and D.W.1 on the side of appellant. It may be noted that second defendant did not file any written statement and remained ex parte.

5. After evaluating entire evidence, trial court held that appellant is not entitled to the benefits of City Tenants Protection Act, since he is not in possession of the property. He is only dealer under second defendant and second defendant is in enjoyment of the property. It further held that after 1966, there had been no renewal and there is also no payment of rent. Possession of first defendant is only that of trespasser on the expiry of the term. Suit was decreed as prayed for.

6. Against the said judgment, appellant preferred A.S.No.207 of 1996 on the file of Principal District Court, Tuticorin. In A.S.No.207 of 1996 plaintiffs also filed cross-appeal. Cross-appeal was necessitated for not awarding profits at the rate demanded by plaintiffs. Lower appellate court after evaluating the entire evidence dismissed the appeal and cross-appeal. Lower appellate court also that second defendant is in possession of the property, and p