Plaintiff permitted to withdraw the earlier suit.

Plaintiff in O.S.No.1459 of 1977, on the file of City Civil Court, Madras, filed the above second appeal. She died later, and appellants 2 and 3 and 6th respondent have been impleaded as her legal representatives.

2. Suit filed by plaintiff was one for permanent injunction on the following allegations: Plaintiff purchased the property mentioned in the plaint, on 19. 1974 as per Ex.A-1 and was in exclusive possession of the property. She is the second wife of one Sattar Khan. Before her marriage with Sattar Khan, her elder sister Zainub Bi was his wife. On the death of Zainub Bi, plaintiff married Sattar khan. It is further said that in the earlier marriage, Sattar Khan had a daughter, and she was given in marriage to one Sulaiman, and Sulaiman and his wife were residing in the suit property. It is said that Sulaiman’s wife died, and afterwards Sulaiman is keeping first defendant as his mistress. Sulaiman, along with the first defendant, taking advantage of their occupation, have leased out portions of the suit property to second defendant, who has sub-leased the same to defendants 3 to 5. It is said that first defendant is also claiming title to the suit property. There was exchange of notices. It is said that the occupation of first defendant was as a licensee and the same has been revoked. It is said that since first defendant attempted to meddle with the property, the suit was instituted for injunction.

3. Defendants 1 to 5 filed a joint written statement. According to them, defendants 4 and 5 and Ameer Bi are tenants of second defendant. The sale deed in favour of plaintiff is not valid and is not binding on defendants 1 and 2. It was obtained fraudulently. At any rate, it was only in respect of the land. It does not confer on the plaintiff any title to the superstructure. It is said that on the basis of the sale deed, plaintiff cannot claim any title to the superstructure. It is further said that the plaintiff is residing in a portion of the suit property. It is further averred that the allegation that Zainub Bi and her husband Sulaiman were permitted to reside in the suit land is false. It is also said that Sulaiman is the husband of first defendant, and that he has put up all the huts and superstructures. According to defendants 1 to 5, children of first defendant are also necessary parties to the suit. It is further said that Sulaiman entered into an agreement with Muthiah, the owner of the land, and he is entitled to the benefits of the City Tenants Protection Act. Muthiah agreed to sell the land to Sulaiman and has also received a sum of Rs.1,500. But the sale could not be completed, and Sulaiman died. After his death, plaintiff and her husband approached Muthiah and fraudulently obtained a sale deed. According to defendants 1 to 5, Sulaiman permitted the plaintiff and her husband to reside in one of the houses. It is said that the occupation of the plaintiff is only that of a licensee, she being the mother-in-law. Taking advantage of the permission given to her she is claiming title. No portion of the plaint property belonged to plaintiff. Defendants 1 to 5 prayed for dismissal of the suit.

4. Trial Court, as per judgment dated 21. 1980, decreed the suit with costs. Injunction prayed for was also granted. In paragraph 13 of the trial Court, it observed that the suit ought to have been one for declaration of title over the land and superstructure. But the non-claim of relief, according to trial Court, will not disentitle the plaintiff from getting the relief of injunction, if she is found to be in possession.

5. When the matter was taken in appeal, as A.S.No.106 of 1981, on the file of City Civil Court, Madras, the lower appellate Court took a different view. The suit was dismissed holding that the defendant is not in possession. It is against the said judgment, plaintiff preferred this second appeal.

6. At the time of admission of the second appeal, the following substantia] questions of law were raise