S VENKATARAMU Vs. K SHAMANNA

JUDGEMENT

(1.) AN interesting point has been canvassed in this civil revision petition which is in fact the only issue that falls for consideration. The petitioner before me was the original tenant in an eviction case No. 16 of 1982. A decree was passed against him on 3-9-1983 pursuant to a compromise that was entered into between the parties. One of the terms of the compromise was that the petitioner was granted one year's time to vacate the premises. It is alleged that he failed to do so whereupon execution petition No. 7 of 1985 was institution against him. On 18-10-1985, the petitioner left the premises and the executing court was accordingly informed. The respondent pressed his claim in respect of the amounts that he was eligible to recover from the petitioner-tenant under two heads, the first being the unpaid rent, etc. , about which there is no dispute, but the second one was on the ground that the respondent was entitled to recover compensation at the rate of Rs. 175/- per month for the entire period after 3-9-1984 upto the date of vacating the premises on the ground that the present petitioner was liable to pay damages for having occupied the premises during this period. The trial court disallowed this claim whereupon the matter was carried in appeal and the appeal court not only passed a decree in respect of the arrears, but held that in respect of the extended period, that the present petitioner was liable to pay damages at the rate of Rs. 175/- per month. It is basically this second part of the order that has been challenged by the petitioner through the present proceeding.

(2.) I need to record here that the respondent-landlord had contended that the petitioner had requested for extension of time after the initial period of one year had elapsed and that he had mutually agreed to this on condition that the petitioner would pay him at the rate of Rs. 175/- per month. Both the courts have held that no such agreement has been established. The petitioner's learned Advocate relies heavily on this finding and he submits that in the light of this finding of the appeal court, that the award of damages was erroneous. There are references in the record to the effect that at one stage, the petitioner himself had agreed to pay Rs. 150/- per month which is one of the factors which the appeal court had relied on and there is also evidence produced by the landlord that the one kulkarni who was occupying the adjoining house was paying a rent of Rs. 175/- per month and the appeal court has taken this as the basis for the award of this higher figure. The petitioner's learned Advocate submits that this aspect of the matter is entirely extraneous to the ground on which he is challenging the enhanced award. I need to record here that the appeal court had relied on an earlier decision of this court in a revenue proceeding in the case of basayya v land tribunal, hungund and another, wherein the court recorded the fact that after the tenancy has been determined, that the party who continues in occupation does so as a trespasser. This was the essential basis on which the appeal court has awarded damages in this case.

(3.) THE petitioner's learned Advocate has assailed the award of the higher amount of Rs. 175/- per month for the extended period on a pure point of law. His contention is that admittedly, the petitioner was a tenant in occupation and that the legal proceedings instituted were for recovery of possession. He points out that this was a case in which a compromise was recorded as a result of which the trial court never adjudicated the matter nor did the court formally determine the tenancy of the petitioner. It was for this reason that by agreement of the parties, the tenancy stood extended for a period of one year after the compromise decree was passed. The learned Advocate submits that even in respect of the extended period during which the petitioner did not vacate is concerned, that only the rate at which he was originally paying the rent would apply in the peculiar facts and circumstances of this case because, there has been no formal determination of the tenancy. Had a decree been passed on merits, the rate at which the petitioner was paying the rent would no longer have been applicable and the principles on which the appeal court proceeded and awarded damages would have been absolutely valid. In the present instance however, the learned Advocate points out, that the tenancy must be deemed to have been continued right upto the point of time at which the executing court finally restored possession which in this case was unnecessary because, the petitioner himself vacated on 18-10-1985. This is one aspect of the matter which has been overlooked by the appeal court, according to petitioner's learned advocate. Order continued on 5-8-1996: