LAWRENCE MASCERNHAS Vs. IGNATIUS PEREIRA

JUDGEMENT

(1.) The plaintiff has filed this second appeal against the order passed by the Civil Judge, Mangalore, in R.A.No.22 of 1969 dismissing the plaintiff's appeal filed against the judgment and decree passed by the Munsiff at Mangalore in O.S.No.170 of 1965 dismissing the plaintiff's suit for declaration that he is entitled to occupy the plaint schedule premises as a tenant on fair rent to be fixed by the Court and for possession of the plaint schedule premises marked in red colour in the plaint plan.

(2.) The plaintiff's case, as revealed by the plaint, is that he was a tenant in respect of the premises bearing No. 13-658 TS No.186/2, 13th ward, Mangalore Municipality, on a monthly rental of Rs.25 as per the rent bond dt.22-2-1958. The defendant obtained transfer of the premises and the lease-hold rights under a sale-deed dt. 16-3-63 and filed an application in RCOP No.244/63 for eviction against the plaintiff under S.21(j) of the Mysore Rent Control Act, 1961 (to be hereinafter referred to as the Act) on the ground that the defendant required the premises for immediate purpose of demolishing and reconstruction. The application was allowed directing the plaintiff to surrender possession of the premises for the purposes of demolishing and erection of a new building. The plaintiff surrendered possession of the premises on 8-4-64. The plaintiff, as required under the provisions of S.27 of the Act issued a notice to the defendant within the period allowed by law soon after the demolition of the building expressing his willingness to pay fair Tent and to occupy the new premises. The defendant gave evasive repy to the notice. His further contention is that the defendant failed to comply with the provisions of sub-sec (b) of clause(2) of S.28 of the Act by not placing the plaintiff in occupation of the new building which was erected on the site of the old building. This omission on the part of the defendant, according to the plaintiff, is illegal and criminal. His case is that he was in the old premises door No.658 having had continuously for a period of over 10 yeafs a book-seller's shop and that he had established his trade in this premises and had acquired a large number of customers. He kept the books and furniture in his house. The discontinuance of the business has caused him great hardship. He has also alleged that the defendant is negotiating to lease out the premises to someone else. Therefore he contends that he was constrained to file the suit for declaration that he is entitled to occupy the premises in question and for possession of the premises shown in the schedule which was erected on the site of the old building occupied by him as tenant thereof, on a fair rent. Hence the suit.

(3.) The defendant has filed a lengthy written statement. He has disputed the dimension of the shop which was in the occupation of the plaintiff. He has assered that the eviction of the plaintiff was not only under S.21 (j) but also under S.21 (h) of the said Act. His complaint is that the plaintiff did not surrender the premises even after due date and that he got delivery of premises on 14-4-1964 through Court process, and therefore, according to him, the plaintiff is disentitled to any relief conferred on him by S.27 of the Act. He has also denied his liability to intimate the plaintiff within 3 months before the date of the completion of the new building. He has pleaded that the ground floor was occupied by the defendant himself and since his son Charles contributed funds for the construction of the building he is carrying on business under the name and style 'Capital'. He has denied that the plaintiff is entitled under any circumstances to obtain possession of the building on the site door No.658 on the ground floor as required under S.28 of the Act. He has admitted that the plaintiff was running a book stall in door No.658 which measured 6' in width in front, 3' long and 3' broad at the back, inclusive of the verandha. He has also averred that the plaintiff has got alternative premises opposite the Maidan and that he has been running his business there. He has also denied that the premises coloured red in the plan was the premises occupied by him formerly.