D N SREERAMANAIK Vs. P L LAKSHMINARAYANA RAO

JUDGEMENT

(1.) The above Regular Second Appeal is directed against the Judgment and Decree passed by the 1st Additional Civil Judge, Kolar, confirming the Judgment and Decree dated 31-1-1977 passed by the learned Munsiff, Kolar, in O.S. No.139/74. The facts of the case in brief are as follows: The plaintiff filed a suit for eviction of the defendant from the suit schedule premises and for possession of the same, for damages amounting to Rs.500/- in respect of the damages caused to the suit schedule house by the defendant, for notice charges of Rs.34/- with costs and for direction to the defendant to pay rent for three years next before suit ie., in a sum of Rs.468/- for the eastern portion of the suit premises and Rs.80/- being the damages for use and occupation of the western portion of the suit schedule premises from about March, 1974 and for future mesne profits under Order 20 Rule 12 of the Code of Civil Procedure and for other consequential reliefs.

(2.) The plaintiff's case is that the schedule premises is joint family property of the plaintiff of which he is the manager. The defendant took the eastern portion on lease from the plaintiff's father P.Venkatachalaiah on 4-7-1966 on a monthly rent of Rs.13/-. The defendant paid Rs.90/- towards rent on 22-6-1969 and the same has been endorsed on the rent note. He did not pay any other rent. The plaintiff's father died on 19-10-1973. Taking advantage of it, and of the absence of the plaintiff, he being an employee of the Vysya Bank at Hindupur, damaged the premises let out to him, and dug up pits in front of his house. Then the plaintiff quarrelled with him and got issued a notice to the defendant terminating his tenancy with effect from 3-5-1974 and he demanded the payment of the arrears of rent and also damages of Rs.200/-. After the service of notice to the defendant, the defendant has forcibly occupied the western portion of the house which the plaintiff's father has reserved for himself which had included the vacant site. The defendant began to use that portion to tether his cattle, to store grass etc., thus he damaged the building also. Thereafter the plaintiff got issued a notice to the defendant on 8-3- 1974 but it was returned and un-served.

(3.) The defendant by his reply notice dated 5-4-1973 admitted the lease in his favour, but set up a false claim that the plaintiff's father had executed an agreement to sell in his favour and that he had spent Rs.1200/- towards the repairs of this house. Thus, according to the plaintiff, defendant is in possession of the eastern portion as a lessee and the western portion as a tresspasser. The defendant filed his written statement contending interalia that he took the entire plaint schedule house on lease on a rent of Rs.13/- from the plaintiff's father on 6-4-1961. He had paid rents upto 14-3-1973 on which date the plaintiff's father executed an agreement to sell for a sum of Rs.2000/- taking an advance of Rs.1,500/- agreeing to receive the balance amount of Rs.500/- at the time of Registration and after the dispute regarding the vacant site on the west between the plaintiff's father and Sharada Vidyarthy Sanga, Gudibanda, was settled in court. After the death of the plaintiff's father the defendant approached the plaintiff, his brother and their mother to execute a sale deed as agreed upon by receiving the balance amount of Rs.500/- and even though they promised to execute the sale deed they put it off. Hence I have filed this suit. Thus, according to the defendant, there is no subsisting relationship of landlord and tenant and he has been in occupation of the entire house by virtue of an agreement to sell executed in his favour by the plaintiff's father. He has also stated that he has spent Rs. 1200/- for repairs of the house after that agreement.