JUDGMENT 1. The appellant, who is the defendant in the original suit filed this second appeal against the Decree and Judgment dated 14.07.2003 made in A.S. No. 19 of 2003 on the file of Principal District Court, Nagapatinam, confirming the Decree and Judgment dated 27.12.2002 made in O.S. No. 44 of 1999 on the file of District Munsif Court, Nagapatinam. 2. For the sake of convenience, the defendant in the original suit is referred as appellant and the plaintiff in the original suit is referred as respondent hereafter. 3. The respondent/plaintiff filed a suit for ejectment and directed the appellant to deliver the vacant possession after dismantling the superstructure. Briefly the case of the respondent is that the suit property is a wakf property and the husband of the respondent is present Trustee of the wakf property and the respondent is his power agent. The appellant executed a lease agreement on 02.10.1982 in favour of the respondent and accordingly, the respondent is land owner and the appellant is tenant and the tenancy commenced on 02.10.1982 and the monthly rent was fixed at Rs.40/- payable on or before 05th of succeeding month. The appellant has also paid a sum of Rs.500/- as advance. According to the respondent, the appellant was in arrears of rent for three months as on 30.04.1985 and hence, O.S. No. 245 of 1985 was filed for recovery of arrears of rent and for ejectment, but the suit was dismissed as notice to quit was not in proper. As against the dismissal of the above said suit, the first appeal in A.S. No. 13/89 was filed and it was partly allowed in respect of claim of arrears of rent alone. The respondent had issued proper notice on 19.06.1998, terminating the tenancy with effect from 02.09.1998, but, the appellant sent a reply, containing false averments through his counsel on 30.11.1998. Further, the appellant has sub-leased the suit property to another person and therefore, the appellant is liable to evict from the suit property after dismantling the super-structure, since the appellant is not entitled to the benefits of City Tenants Protection Act and also on the ground of arrears of rent. Hence, the suit. 4. Further, the appellant has sub-leased the suit property to another person and therefore, the appellant is liable to evict from the suit property after dismantling the super-structure, since the appellant is not entitled to the benefits of City Tenants Protection Act and also on the ground of arrears of rent. Hence, the suit. 4. The appellant/defendant filed written statement, in which, it is stated that the respondent’s husband, namely Hameed Sultan, in the year 1988, offered to give 300 sq.ft., property to the appellant as lease and orally he informed as it is a trust property, and it was in his possession. Believing the same, the appellant took the 300 sq.ft., and entered into an agreement to pay Rs.40/- as rent per month, for the site and also paid Rs.500/- as advance. Apart from the above said amount, the appellant has paid Rs.30,000/- to the respondent’s husband. The appellant regularly paid the rent from 02.10.1982 to May 1985. The tenancy agreement was made only for a period of 11 months from 02.10.1982 and hence, the respondent agreed to continue the tenancy right and also the respondent was receiving rent given on 05.05.1985. The respondent wanted to vacate the appellant, so as to give other person to run a shop and hence the respondent did not accept the rent for the months (i.e.,) June, July and August 1985. The appellant sent the rent by way of money order for Rs.120/-, but it was refused by the respondent and returned. Further, the appellant has paid arrears of rent of Rs.1,000/- by Demand Draft to the respondent’s counsel as per direction of the Appellate Court in A.S. No. 77 of 1996. Further, during the pendency of the suit, the respondent entered into the suit site and built up a hotel and running a business. Therefore, the appellant automatically shifted to other area for which he has not executed any agreement with the respondent. The boundaries for suit property also wrongly given and hence, the suit is not maintainable. 5. The trial court, on the basis of the above said pleadings framed two issues. On the side of the respondent/plaintiff examined one witness and marked five documents as Exs.A1 to A5 and on the side of the appellant/defendant examined one witness as DW1 and marked one document as Ex.B1. 6. 5. The trial court, on the basis of the above said pleadings framed two issues. On the side of the respondent/plaintiff examined one witness and marked five documents as Exs.A1 to A5 and on the side of the appellant/defendant examined one witness as DW1 and marked one document as Ex.B1. 6. The trial court has discussed about the oral and documentary evidence and finally decreed the suit as prayed for in the plaint and three months time was given to remove the super-structure and handed over the possession. Aggrieved over the above said Decree and Judgment passed by the trial court, the appellant herein filed first appeal in A.S. No. 19/2003. During the pendency of the first appeal, the appellant herein filed three petitions (i.e.,) in I.A. No. 72/03, to receive additional documents, I.A. No. 73/03, filed to receive additional written statement and I.A. No. 74/03 filed to appoint Advocate Commissioner. The first appellate court has discussed in detail about both sides contentions and finally held that the Decree and Judgment passed by the trial court is valid in law and all the Miscellaneous Petitions are liable to be dismissed and therefore, first appellate court confirmed the Decree and Judgment passed by the trial court and dismissed all the three petitions. 7. Aggrieved the above said concurrent findings of both the courts below, the appellant, who is defendant in the suit preferred this second appeal. The second appeal is admitted on the following substantial questions of law : “1. Whether the binding as to the identity of the suit property in the earlier proceeding is A.S. No. 77/96 would be res-judicata when those proceedings had ended in favour of the appellant in entirety and if not, whether the Appellate Court ought not to have decided the said question afresh ? 2. Whether a suit instituted by an individual on the basis of notice under Section 106 of Transfer of Property Act, can be amended to bring some other Plaintiff on record, who had never issued any notice ?” 8. Heard the learned counsel appearing on either side and perused the materials available on records. 9. The respondent has filed a suit for ejectment on the grounds that the respondent has not paid the arrears of rent and also the appellant subleased the suit property to another person. Heard the learned counsel appearing on either side and perused the materials available on records. 9. The respondent has filed a suit for ejectment on the grounds that the respondent has not paid the arrears of rent and also the appellant subleased the suit property to another person. On the side of the respondent contended before the trial court, as if the suit property is not properly described and also denied the arrears of rent as alleged by the appellant. Both courts below have discussed in detail about the oral and documentary evidence adduced on either side, particularly, the specific admission of the appellant and finally held that the appellant is tenant and the respondent is landlord and the appellant committed wilful default in payment of rent and the period of tenancy already over and further, the respondent had issued proper notice on 19.06.1998, terminating the tenancy with effect from 02.09.1998 and therefore, the respondent is entitled to the relief sought for in the plaint and the trial court decreed the suit accordingly and the above said decree and judgment of the trial court have confirmed by the first appellate court. 10. The learned counsel appearing for the appellant has not seriously objected the findings that the appellant is tenant under the respondent and also not seriously objected the alleged arrears of rent. The main contention of the appellant before this Court is that the respondent has not issued proper eviction notice under Section 106 of Transfer of Property Act, and on the sole ground, the suit filed by the respondent is not valid in law, but, both courts below have not considered the above said legal aspects and therefore, prayed for to set aside the above said findings of both courts below and to dismiss the suit. 11. The learned counsel appearing for the appellant submitted that the present suit in O.S. No. 44 of 1999, originally filed by “H.N. Junitha Nachiar” as individual capacity and only during the pendency of the suit, on 03.12.2002 the respondent has filed a petition in I.A. No. 670 of 2002, to amend the cause title of the plaintiff as “Haji Abdul Khader Nagada Trust, represented by its Trustee, Hameed Sultan, represented by Power Agent, H.N. Junaitha Nachiar”. The learned counsel appearing for the appellant further submitted that before filing the suit, H.N. Junaitha Nachiar as Power Agent of her husband namely Hameed Sultan, issued eviction notice Ex.A1 to the appellant, as if the suit property belongs to her husband H. Hameed Sultan. The learned counsel further pointed out that the above said Ex.A1 notice not issued as a Trustee of the Haji Abdul Khader Nagada Trust and not at all averred in the above said notice that the property belongs to the above said Trust and therefore, the above said notice Ex.A1 issued as if the property belongs to Hameed Sultan is not a valid eviction notice as prescribed under Section 106 of Transfer of Property Act, and on that ground alone, the suit is not maintainable. 12. Per contra, the learned counsel appearing for the respondent would submit that originally, the above said H.N. Junaitha Nachiar issued legal notice on behalf of her husband as Power Agent and also on her own behalf. But, in the original plaint, it is specifically stated that the suit property is a wakf property and the husband of H.N. Junaitha Nachiar namely Hameed Sultan is a Trustee and on his behalf as Power Agent, the suit has been filed. But, in the long and short cause titles failed to aver such facts, the petition to amend the plaint was filed and accordingly, the plaint was amended. The learned counsel appearing for the respondent further pointed out that the appellant has not challenged the above said order passed in the amendment petition and now, the appellant is not entitled to challenge the above said amendment and the suit is now properly filed by the respondent. The learned counsel appearing for the respondent further submitted that the termination notice issued under Ex.A1 is valid notice, even though it is issued by H.N. Junaitha Nachiar as Power Agent of her husband and also on her behalf and further submitted that the appellant has not challenged the validity of Ex.A1 eviction notice issued under Section 106 of Transfer of Property Act, before the courts below and hence, the appellant is not entitled to challenge the above said notice. 13. The learned counsel appearing for the appellant admitted before this Court that the respondent herein (i.e.,) Haji Abdul Khader Nagada Trust is the landlord and the appellant is tenant in the suit property. 13. The learned counsel appearing for the appellant admitted before this Court that the respondent herein (i.e.,) Haji Abdul Khader Nagada Trust is the landlord and the appellant is tenant in the suit property. Before this Court, on the side of the appellant only challenged Ex.A1 eviction notice issued under Section 106 of Transfer of Property Act, as it is not at all valid eviction notice. Admittedly, in the original plaint filed in the year 1999, described in the name of the plaintiff only as “H.N. Junaitha Nachiar”. After several years, on 03.12.2002, the above said plaint was amended as per order in I.A. No. 670 of 2002 as “Haji Abdul Khader Nagada Trust”. 14. A perusal of Ex.A1, the alleged eviction notice issued under Section 106 of Transfer of Property Act, revealed that nowhere it is stated that the suit property belongs to “Haji Abdul Khader Nagada Trust” and the notice issued only as Trustee or representative of the above said Trust. In the above said Ex.A1 notice, it is stated as follows: “1. That you are a monthly tenant and my clients are the landlords in respect of the property more particularly described hereunder and the monthly rent payable as agreed is Rs.40/-. The rental agreement was entered into on 02.10.1982 and the rent is payable on or before the 5th of succeeding month. The rent deed is for 11 months and got expired by efflux of time and you are a tenant by holding over. As advance of Rs.500/- paid by you on 02.10.1982 is repayable at the time of vacating the site. 2. Please note that your tenancy in respect of demised premises and all your relationship with my clients as between landlord and tenant has been determined with effect from 02.09.1998 and you are hereby required to remain in possession upto and inclusive of 01.09.1998 and deliver possession of the site to my clients or either of them on 02.09.1998 failing which suitable proceedings will be initiated for recovery of possession against you making you liable for mesne profits damages and costs.” 15. A careful reading of the above said eviction notice revealed that nowhere it is stated the plaintiff’s Trust namely “Haji Abdul Khader Nagada Trust” is owner of the property and the eviction notice issued only as Trustee or Representative of the above said Trust. A careful reading of the above said eviction notice revealed that nowhere it is stated the plaintiff’s Trust namely “Haji Abdul Khader Nagada Trust” is owner of the property and the eviction notice issued only as Trustee or Representative of the above said Trust. As rightly pointed out by the learned counsel appearing for the appellant, the above said notice issued as if the suit property is separate property of Hameed Sultan and as Power of Attorney, his wife namely “H.N. Junaitha Nachiar” issued eviction notice under Section 106 of Transfer of Property Act. Therefore, Ex.A1 eviction notice was not issued by the concerned landlord namely “Haji Abdul Khader Nagada Trust” and on that ground alone, this suit is not maintainable. 16. The learned counsel appearing for the appellant also pointed out that already “H.N. Junaitha Nachiar” filed a suit in O.S. No. 56 of 1990 and the above said suit itself, the appellant herein challenged the eviction notice issued under Section 106 of Transfer of Property Act, since it was issued as individual capacity, but, the trial court has not accepted the contention of the appellant and decreed the above said suit. Challenging the above said findings of the trial court, the appellant herein preferred first appeal in A.S. No. 79 of 1996. The first appellate court clearly held that the suit was filed as individual capacity, but, the suit property belongs to the Trust and therefore, on that ground the first appeal was allowed and dismissed the suit as per Ex.B1 judgment. Even after the above said dismissal of the suit, only the above said “H.N. Junaitha Nachiar” issued eviction notice as if the suit property belongs to her husband Hameed Sultan. The present main suit was originally filed only as individual capacity and not as trustee or representative of the Trust. Only during the pendency of the suit, the plaint was amended. Therefore, as rightly pointed out by the learned counsel for the appellant, the alleged eviction notice-Ex.A1 issued under Section 106 of Transfer of Property Act, is not a valid eviction notice, since it is not issued by the landlord. Both courts below have not at all considered the earlier proceedings in A.S. No. 77 of 1996, in which, it is clearly held that the landlord is Trust and the suit filed as individual capacity is not maintainable and dismissed the above said suit. Both courts below have not at all considered the earlier proceedings in A.S. No. 77 of 1996, in which, it is clearly held that the landlord is Trust and the suit filed as individual capacity is not maintainable and dismissed the above said suit. Therefore, the findings of both the courts below are not valid. Further, the alleged Ex.A1 eviction notice issued under Section 106 of Transfer of Property Act, is not valid eviction notice and on that ground, the respondent is not entitled to the relief sought for in the plaint and answered both substantial questions of law against the respondent and in favour of the appellant. In view of the above said discussion, the second appeal is liable to be allowed and the decree and judgment passed by both courts below are to be set aside. 17. In the result, the second appeal is allowed and the decree and the judgment passed by the both courts below are set aside and the suit filed by the respondent is dismissed. No order as to costs. Appeal allowed.