The plaintiff cannot raise the plea under section 116 of the Transfer of Property Act at the appellate stage.

1. This second appeal has been filed at the instance of the plaintiff, challenging the decree and judgment dated 23.10.2001 passed by the learned V Additional Judge, City Civil Court, Chennai, in A.S.No.43 of 2000, whereby the decree and judgment dated 28.12.1998 passed by the learned V Assistant Judge, City Civil Court, Chennai, in O.S.No.8186 of 1994, were partly modified.

2. The present civil revision petition has been filed at the instance of the 1st defendant, aggrieved over the decree and judgment dated 09.10.2003 in Ejectment Suit No.2 of 2000 passed by the learned III Judge, Small Causes Court, Chennai, whereby the suit filed by the plaintiff wakf was allowed, directing the 1st defendant to vacate and deliver the possession of the suit property with the plaintiff within the stipulated time.

3. Since the issue involved as well as the parties in both the matters are also one and the same, the second appeal and the civil revision petition are disposed of by this common judgment.

4. Firstly we deal with the second appeal.

The plaintiff herein, viz., Anser Bi, filed a suit in O.S.No.8186 of 1994 against the respondents/defendants stating that she is the owner of the suit property, namely, entire superstructure consisting of ground floor and the first floor in Plot No.83 bearing Municipal Door No.16, G.N.Chetty Road, Madras-6 and the land, on which the said superstructures stand belongs to the 1st respondent Wakf, viz., Sherfunnissa Begum Sahib Mosque Wakf. The appellant/plaintiff purchased the said superstructures from T.P.Abdul Jabbar Sahib along with the leasehold rights by a registered sale deed dated 27.02.1967 and since then, she is in possession and enjoyment of the same and is paying the corporation tax and rent for the said land to the Mosque endowment. The 2nd defendant became a tenant under the plaintiff in respect of the said property on a monthly rent of Rs.275/-by way of rental agreement for 11 months on 21.04.1971 and the said agreement was subsequently renewed from time to time and now he is paying the enhanced monthly rent of Rs.700/-. While so, the plaintiffs husband died in the year 1989 and by taking advantage of the situation, the 2nd defendant wanted to grab the said property and he instigated the 1st defendant wakf to issue a lease agreement in his favour. Under such circumstances, the 1st defendant wakf sent a letter dated 06.04.1994 to the plaintiff stating that the Executive Committee decided to terminate the plaintiff’s land tenancy; for which, the plaintiff sent a letter dated 10.04.1994 stating that the Executive Committee has no authority to do so as the rent has been paid regularly to the Trust. Hence, the plaintiff filed the said suit for a direction to the 1st defendant Wakf to renew the lease agreement in her favour and also for a permanent injunction restraining the 1st defendant Wakh from transferring the lease in favour of the second defendant.

5. The case of the plaintiff was resisted by the 1st defendant Wakf by filing a written statement alleging that the plaintiff is not the owner of the entire superstructure of the subject land and she is the owner of the ground floor portion only and the 1st floor portion was constructed by the 2nd defendant. The plaintiff purchased the superstructure of ground floor only under the sale deed dated 20.02.1967 and subsequently she has been recognised as a tenant for the land by the wakf and has been paying the land rent to the Mosque at the rate of Rs.100/-per month. In the said situation, the 2nd defendant, a mortgagee of the superstructure with leasehold rights of the land, put up the first floor portion at his cost. When the present Committee took charge on 11.01.1994, the Committee members inspected the property and after conducting enquiry, the Committeee took a view that though the plaintiff was not in actual physical possession, considering her status as a widow, it decided to execute the lease agreement in respect of both the partie