MOHAMMED KUNJU BEEVI Vs. ELAYAKUNJU SHAHUL HAMEED

JUDGEMENT

(1.) PLAINTIFFS are the appellant. The suit was for recovery of possession with arrears of rent. According to the plaintiffs plaint A schedule building belonging to them was leased out to the defendant on 8.10.1982 on a monthly rent of Rs. 150/- as per Ext. A-1 agreement. Plaint B schedule movables belong to the defendant. As per Ext. A-1 agreement plaintiffs agreed to purchase B schedule movables for consideration of Rs. 9,610/-. On Ext. A-1 date of defendant pad Rs. 9,000/-, to the plaintiffs were ready and willing to repay the advance and purchase B schedule movables paying the sale consideration. The defendant did not agree to execute the sale deed in respect of plaint B schedule movables. He was also not willing to surrender vacant possession of A schedule building,. Rent was paid only upto 12.9.1985. Due to the damages caused by the defendant to plaint a schedule building the plaintiffs have sustained a loss of Rs. 2,000/-. Plaintiffs caused to sent Ext. A-2 lawyer's notice dated 8.10.1985 terminating the tenancy. Subsequently the suit was filed.

(2.) DEFENDANT contended that his father Elayakunju had taken plaint A schedule building on rent from the original owner in 1957. He was conducting business in the building. B schedule movables were purchased by his for conducting tea-shop in the building. In 1982 when defendant's father was laid up defendant and his brother were conducting the business on his behalf.In order, 1982 plaintiffs demanded to enhance the rent and to pay a sum of Rs. 10.000/- as advance. They also compelled the defendant to execute a rent deed in their favour. Since the defendant was not amenable to this, plaintiffs husband and their supporters trespassed into the building and finally they forced the defendant to sign Ext. A-1 agreement. They have also received Rs. 9,000/- from he defendant. By Ext. A-1 no new tenancy was created. Defendant did not agree to sell the plaint B schedule movables. Defendant was forced to execute to execute Ext. A-1 as he was put to fear. Defendant's father was in possession of the building till his death on 21.8.1984. He was paying the enhanced rent also. After the death of defendant's father his right in A and B schedule items devolved on all of his legal representatives including the defendant. Defendant and his brother have been conducting the business for and on behalf of themselves and the other legal representatives. Suit is bad for non-joinder or necessary parties Ext. A-1 agreement is invalid and unenforceable. Defendant has paid rent up to 12th September, 1985. Thereafter plaintiffs refused to receive the rent. After receiving the notice certain mediators intervened and the defendant and others agreed to enhance the rent to Rs. 175/- per month.

(3.) IN the appeal filed by the defendant the learned Additional District Judge held that Ext. A-1 was not admissible in evidence since it was an unregistered document.Plaintiffs had not challenged the decree of the trial court refusing specific performance of the agreement for sale of plaint B schedule items. The Appellate Court allowed the appeal and dismissed the suit. The Second Appeal is directed against the said judgment and decree.