Tenant is not a trespasser.

Challenge is made to a judgment of the Principal Subordinate Judge, Erode, made in RCA No.5 of 2001 affirming an order of eviction made by the Rent Controller of the said place in RCOP No.26 of 1998 a petition for eviction on the ground of willful default and personal use and occupation filed by the respondents herein.

2. The Court heard the learned Senior Counsel on either side.

3. The respondents 1 to 3 herein filed the said RCOP alleging that they are the absolute owners of the property described in the Schedule to the petition; that the revision petitioner was put in possession by one Dhanapal, the power agent of Radhakrishnan, the husband of the first respondent and father of the respondents 2 and 3; that the revision petitioner-tenant filed O.S.No.87/89 before the Sub Court, Erode, against the said Radhakrishnan and the respondents 1 to 3 herein alleging that they attempted to evict him forcibly, and hence, permanent injunction should be granted restraining them from interfering with his possession except by due process of law; that from that time onwards, he called himself as a tenant; but, he has not paid rental for more than a decade, and thus, he has committed willful default; that apart from that, after the death of her husband Radhakrishnan in 1994, she has been living all along in her parental home at Salem; that she is to come back to her matrimonial home; that both her sons are in different places; that due to her old age, she wanted to be in her own house; that except the premises in question, they had no other property, and under the circumstances, they required the same bonafide for their own occupation, and hence, he was to be evicted.

4. The revision petitioner-tenant resisted the petition inter alia stating that originally, he was put in possession as a tenant by one Dhanapal, the power agent of Radhakrishnan; that there was an agreement executed between one Pongianna Gounder and the said Radhakrishnan, which was assigned in favour of the revision petitioner; that there was a notice issued by Radhakrishnan; that the stand that was taken by him was that the revision petitioner was only a trespasser; that after that, the revision petitioner filed O.S.No.87/89 wherein he sought for a permanent injunction stating that both Radhakrishnan and the respondents 1 to 3 herein were making attempts to evict him from the premises unlawfully, and hence, they should be injuncted; that the written statement was filed by all the defendants therein stating that he was a trespasser; that while the matter was pending so, he filed RCOP No.2/91 for deposit of rental; that he made the deposits accordingly for a period of three years; that pending the same, the respondents 1 to 3 filed O.S.No.53/89 showing Radhakrishnan as first defendant and others as other defendants, wherein it has been clearly stated that the petitioner was only a trespasser; that they sought for a declaration that the property exclusively belonged to them; that Radhakrishnan took a stand that the suit was to be decreed; that they also called the revision petitioner as a trespasser; that when the matter was pending, the said Radhakrishnan died on 29. 1994; that on 1. 1999, O.S.No.53/89 was withdrawn by them; that O.S.No.87/89 was decreed on 212. 1998 in view of the endorsement made by the opposite party recognising the revision petitioner as a tenant; that in all these proceedings, he has been termed only as a trespasser; that since he has been called as a trespasser all along, no question of allowing the respondents 1 to 3 to call him suddenly as a willful defaulter would arise; that apart from that, the property originally belonged to Radhakrishnan; that Radhakrishnan left behind him not only the respondents 1 to 3, but also one daughter by name Kanjana; that the RCOP itself could not be maintained; that as far as the grounds of willful default and personal use and occupation were concerned, it lacks thoroughly bonafide, and hence, the petition