MASILAMANI NADAR Vs. KUTTIAMMA

JUDGEMENT

(1.) THE defendant, in a suit for recovery of property with arrears of rent, is the appellant. THE property belonged to the 1st plaintiff. It was leased out to the defendant as per Ext. A dated 1-11-1116 for an annual rent of Rs. 61/ -. THE lease deed was executed by the defendant in favour of the 1st plaintiff's husband and mukthiar holder, Pw. 1, on behalf of the 1st plaintiff. It contained a provision that the defendant may put up any building that may be found necessary for his purposes, over and above the shed that existed on the date of the lease, and that if any such building was put up, the defendant would remove the same and surrender the property and the building that were let to him without any objection at the termination of the lease. Ext. A was for a term of one year but it contained a provision for renewal for another two years. According to the plaintiffs, after the expiry of three years from the date of Ext. A the term of the lease was extended by another six months and therefore the lease terminated on 30-4-1120. According to the defendant, on the expiry of three years from the date of Ext. A the term was renewed for another term, of three years. THE only documentary evidence in connection with the renewal of the lease after 30-10-1119 is Ext. 1 which is a receipt, dated 7-11-1119 executed by the 1st plaintiff's husband, Pw. 1, wherein he acknowledged receipt of Rs. 75/- "being the rent due to me for the first instalment from Ani 1st, 1119, up to the end of Vrischikam 1120 for the premises and. buildings. . . . ". It is agreed by both parties that the rent was enhanced to Rs. 150/- per annum at the time of the renewal of the lease in 1119. THE expression in Ext.I that Rs. 75/- represent the first instalment of rent due from 1-11-1119 would clearly show that the term of the renewal could not be six months only for which the rent of Rs. 75/- was paid under Ext. I; but must certainly be a longer period. THEre is no reliable proof as to the exact term for which the lease was extended in Ani 1119. Anyhow, one thing is clear, that is, that the term of such renewal could not be less than an year dating from 1-11-1119.

(2.) ON 8-3-1120 , the 1st plaintiff sold the property to the 2nd plaintiff as per Ext. IX in which it was averred that the property was outstanding on lease with the defendant and its term would expire by the end of Vrischikam 1120. ON the basis of the sale deed, plaintiffs 1 and 2 instituted the suit on 2-7-1120 for recovery of the property with enhanced rent at Rs. 250/- per mensem from 1-5-1120. The learned Munsiff gave a decree to the plaintiffs for recovery of the property "with arrears of rent by way of damages at Rs. 900/- per annum from 1-5-1120. " He negatived the defendant's claim for compensation for improvements on the ground that the provision in Ext. A amounted to a prohibition of any such claim. The learned District Judge, on appeal by the defendant, affirmed the decree of the trial court, holding that the defendant is not entitled to any value of improvements as per the terms of Ext. A, that the defendant's possession from 1-5-1120 was clearly wrongful and that therefore he was liable for mesne profits by way of damages which he assessed at Rs. 75/- per mensem as found by the trial Court. Hence this Second Appeal by the defendant.

(3.) AS regards the question of mesne profits, the learned District Judge took the view that the defendant's possession after 30-4-1120 was wrongful because the renewal of the lease in Ani 1119 as evidenced by Ext. I related, according to the learned judge, only to a period of six months from 1-11-1119. I have already found that the recitals in Ext. I clearly show that the lease was extended for more than six months from 1-11-1119 and that at any rate it could not have expired before 1-11-1120. Therefore the defendant's possession on the date of the suit, viz. , 2-7-1120 , cannot be held to be wrongful. It is also noteworthy that the plaint does not aver that the defendant's possession was wrongful from 1-5-1120. On the other hand, in the plaint the prayer is that the plaintiff may be awarded enhanced rent at the rate of Rs. 250/- per mensem since he has served the defendant with a notice that unless he surrendered the property within the time allowed in the notice, the defendant would have to pay rent at Rs. 250/- per mensem. If the defendant's possession was not wrongful, it follows that no award of mesne profits as such can be justified. Further, the only basis on which the quantum of ' mesne profits' as the learned judge would call it, or of 'enhanced rent by way of damages' as the learned Munsiff would put it, was assessed, was the statement of Pw. 1 in the box that the premises had been let out to Messrs. Harrison & Crossfield in 1102 and 1103 at a rent of Rs. 75/- per mensem. Even if that statement be taken at its face value, it cannot be of any help even to assess the mesne profits of the premises from 1120 onwards. It is admitted that the premises were leased out to the defendant in 1116 as per Ext. A on a rent of Rs. 61/- per annum. That arrangement continued till 1119 when the rent was enhanced to Rs. 150/- per annum. In view of these facts the rate at which the premises might have been let in 1102 and 1103 is of no consequence in this case. Barring the above-said statement of Pw. 1 there is no evidence worth the name in this case to assess the mesne profits of the suit premises. Anyhow the question as to the quantum of mesne profits need not be considered in view of my finding that the defendant need not be made liable for any mesne profits in this case. Since the lease was subsisting even on the date of the suit and thereafter, the plaintiffs cannot claim anything except the rent agreed to between the parties which is admitted to be Rs. 150/- per annum only. Therefore I set aside the decree as regards mesne profits and decree that the plaintiffs may recover from the defendant rent at the rate of Rs. 150/- per annum from 1-5-1120. Any amount paid or deposited by the defendant as rent or damages for occupation of the premises for any period after 1-5-1120 will be given credit to. The decree will be modified accordingly.