The central legal point established in the judgment is that unauthorized construction by a tenant, in breach of Section 108(b) of the Transfer of Property Act, can lead to eviction based on a valid notice issued under Section 106.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 20.12.2007 made in A.S.No.573 of 207 on the file of the III-Additional City Civil Court, Chennai, confirming the judgment and decree dated 11.09.2006 made in O.S.No.7900 of 1998 on the file of the II-Assistant City Civil Court, Chennai.)

1. The defendant appeals against the order of ejectment passed by the II-Assistant City Civil Court, Chennai in O.S.No.7900 of 1998 dated 11.09.2006, which was confirmed by the III-Additional City Civil Court at Chennai in A.S.No.573 of 2007 dated 20.12.2007.

2. The facts leading to the appeal are that the plaintiff / Arulmighu Parthasarathy Swamy Thirukoil represented by its Assistant Commissioner / Executive Officer is the owner of the suit schedule mentioned property. The tenancy was granted in favour of one G.G.Thiruvengdam Pillai for a monthly rent of Rs.12/-. The said Thiruvengadam Pillai passed away in the year 1980. Thereafter, the tenancy was not transferred in the name of his legal heirs. The appellant without permission of the landlord / Temple authorities started putting up construction over the existing ground and first floor. Immediately, the Temple authorities have proceeded against this unauthorized and illegal construction. It is unauthorized and illegal, because, according to the Temple, being the owner of the land, their permission should have been taken prior to putting up of the construction.

3. Despite a letter / Ex.B2 dated 01.04.1998, the appellant proceeded ahead and completed the construction. Consequently, the respondent / plaintiff issued notice to quit and deliver vacant possession on 03.07.1998. This was responded too by the appellant on 20.07.1998. Be on the safer side, as the first notice had been sent on certificate of posting, the second notice was sent through Registered Post with acknowledgment due on 21.07.1998. As the construction had been completed, the plaintiff filed a suit sought for the following reliefs:-

a) to deliver vacant possession.

b) to pay damages from the date of plaint till date of deliver of possession at the rate of Rs.1,000/- per month.

c) for permanent injunction restraining the defendant from putting up any further construction in and over the suit schedule property without the permission and sanctioned plan from the Corporation of Chennai and

d) for mandatory injunction to remove the illegal, additional construction put up by the 1st defendant.

4. Detailed written statement was filed whereby, the fact that Thiruvengadam Pillai was the tenant under the Temple was admitted. The plea of the defendant was he had sought for transfer of lease and tenancy in his favour and it was the Temple, which had not transferred the tenancy. He further pleaded that the other legal heirs had not been impleaded and therefore, the suit is untenable.

5. It is pertinent to note here that in the reply given to the issuance of 106 notice was not denied by the tenant. He would take a plea that since constitutional validity of the amendment made to the Madras City Tenants Protection Act is pending before the Full Bench, the eviction petition is not maintainable. This position does not exist any more as the constitutional validity has been upheld subsequently.

6. The Trial Court framed the following issues for consideration

“TAMIL”

7. Before the Trial Court, the plaintiff examined one C.Sellappa as P.W.1 and marked Exs.A1 to A12. The 1st defendant examined himself as D.W.1 and marked Exs.B1 to B3. After a detailed trial, the Trial Court found that the other legal heirs, even on the pleading of the defendant, had released their right in his favour. Therefore, the objection that the other legal heirs are not been impleaded was rejected. Consequently, the suit was held to be maintainable with the appellant / defendant as the sole defendant.

8. With respect to eviction, the Trial judge found that the construction was unaut