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2012 DIGILAW 4526 (MAD)

S. Balan v. Sabitha Prasad

2012-11-01

P.R.SHIVAKUMAR

body2012
Judgment :- The second defendant, who is only a tenant in respect of the suit property, is the appellant in the second appeal. The suit was filed by the first respondent against the second respondent for partition claiming that each one of them was entitled to ½ share in the suit property. Since admittedly the appellant is in possession as a tenant of the suit property, he was made a party defendant and arrayed as the second defendant as a proper party which may pave the way of attornment of tenancy in respect of the portions allotted to the sharers. 2. After trial, the learned trial Judge accepted the case of the plaintiff and passed a preliminary decree holding her entitled to ½ share in the suit property and directing division of the suit property into two equal shares and allotment of one such share to the first respondent herein/plaintiff. The appellant herein, having been arrayed as the second defendant, perhaps due to inappropriate advice, chose to file a written statement claiming benefits under the provisions of the City Tenants' Protection Act and also prayed for reimbursement of the amount equivalent to the improvements allegedly made by him in case of his eviction from the suit property. 3. The learned trial Judge, while holding the plaintiff to be entitled to the relief of partition, also seems to have rendered a finding that the appellant herein/second defendant was not entitled to the benefits under the provisions of City Tenants' Protection Act. As against the said finding, the appellant herein/second defendant preferred an appeal before the lower appellate Court in A.S.No.1 of 2009. The learned lower appellate Judge also proceeded on the misconception that such a plea could be entertained and decided in a suit for partition and gave a finding that the appellant/defendant had not proved that any improvement was made by him. Accordingly, the first appeal was dismissed by the learned lower appellate Judge. As against the decree of the lower appellate Judge dismissing the first appeal, the present second appeal has been filed. 4. The questions - "whether the appellant/second defendant who is a tenant, is entitled for protection under the provisions of the City Tenants' Protection Act? Accordingly, the first appeal was dismissed by the learned lower appellate Judge. As against the decree of the lower appellate Judge dismissing the first appeal, the present second appeal has been filed. 4. The questions - "whether the appellant/second defendant who is a tenant, is entitled for protection under the provisions of the City Tenants' Protection Act? whether he had made any improvements and whether he is entitled to recover the value of improvements made by him from the first respondent / plaintiff or the second respondent/first defendant or from both", are not germane to a suit for partition between the first respondent/plaintiff and the second respondent/first defendant, who alone are the co-owners of the suit property, especially when the position of the appellant/second defendant as a tenant is admitted and no prayer for eviction of the tenant has been made. The appellant/second defendant seems to have made an unnecessary plea in the written statement. Had he taken such a plea in support of a counter claim, then this Court can understand the propriety of making such a plea. Not even a counter claim was made by the appellant/second defendant. When that is so, the pleading regarding the entitlement of the benefits of protection under the City Tenants' Protection Act including one for reimbursement of the value of the improvements made by the tenant would not arise especially when eviction has not been sought for. As such, the finding given by the trial Court that the appellant/second defendant is entitled to the benefits of provision of the City Tenants' Protection Act is only a mere finding which has not been made the basis of the decree. 5. An appeal will lie against a decree or part of a decree alone. Even a cross objection against a mere finding, which does not form the basis of the decree, is not maintainable. When such is the case, the mere fact that such a finding was rendered will not amount to res judicata. The appellant herein/second defendant should not have made such a plea in the written statement. Having made such a plea and invited a finding, which was not the basis of the decree, ought not to have filed the first appeal thereby inviting a further finding that he had not made any improvements. The appellant herein/second defendant should not have made such a plea in the written statement. Having made such a plea and invited a finding, which was not the basis of the decree, ought not to have filed the first appeal thereby inviting a further finding that he had not made any improvements. The net result of the hearing of the appeal before the lower appellate Court was the dismissal of the appeal confirming the preliminary decree directing division of suit properties into two equal shares and allotment of one such share to the first respondent/plaintiff. Once again the appellant /second defendant has committed a mistake by filing the second appeal against the finding of the lower appellate Court which is not the basis of the decree of the lower appellate Court confirming the decree passed by the trial Court. The above said discussion shall be enough to hold that the second appeal is not maintainable. 6. Accordingly, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. In order to make it crystal clear that the findings rendered by the Courts below in respect of the plea made by the appellant/second defendant as to his entitlement to the benefits of the provisions of the City Tenants' Protection Act and for the recovery of the value of the improvements allegedly made by him shall be open to be adjudicated in an appropriate proceedings when eviction would be sought for against the second defendant /appellant.