LAKSHMI Vs. NARAYANA IYER

JUDGEMENT

(1.) The defendant in OS 851 of 1117 on the file of the District Munsiff of Perumpavoor is the appellant before us. The plaintiffs are the respondents. The suit was for recovery of possession of certain immovable properties on foot of a lease of year 1107. The lease deed is Ext. B. A period of 12 years is fixed as the term in the lease. The rent reserved in the lease is Rs. 88-4-0 per year. There is a provision in the lease deed for forfeiture of the term on default of payment of the rent reserved. On the allegation that the term had been forfeited on account of default in payment of rent pursuant to this provision the suit was filed in 1117 even though the term under the lease would expire only 2 years later. The defence was that the term had not been forfeited and that the suit was premature. In the event of a decree for surrender the defendant claimed value of certain improvements alleged to have been effected by her. In the plaint as originally filed the plaintiffs, claimed Rs. 88-4-0 per year by way of mesne profits from date of suit until date of delivery of possession. Afterwards by an amendment this figure 88 1/4 was enhanced to Rs. 700 per year. The plaintiffs claimed mesne profits on the ground that from the date on which the defendant should have delivered possession to the plaintiffs pursuant to a notice demanding possession filed as Ext. XIV in the case, the defendant's possession was wrongful and from that date or at any rate from the date of suit the defendant is liable to pay 'mesne profits' to the plaintiffs.

(2.) The courts below have concurrently found that the defendant is entitled to payment of Rs. 549 by way of value of improvements effected by her in the property and that the plaintiff is entitled to possession only on deposit of that amount and notice therefore to the defendant. The learned Munsiff decreed the suit on the 27th Dhanu 1124 decreeing profits at the rate of Rs. 88-4-0 as originally claimed in the plaint and disallowed the claim for the enhanced profits claimed by the plaintiffs on the ground that except a statement made by the defendant in her written statement that the sugarcane cultivation that she was having on the property would yield a net income of Rs.1500 a year 'there are no other materials to find out the proper yield from the property'. The sugarcane cultivation that is referred to in the written statement was not continued for any length of time but was stopped some time before the matter was argued before the learned Munsiff as is clear from the Munsiff's judgment. In appeal, the learned District Judge decreed the enhanced claim of Rs. 700 a year based on the said statement of the defendant that the property would yield Rs. 1500 a year.

(3.) Now on the date of the decree passed by the learned Munsiff the amount fixed by way of value of improvements payable to the defendant had not been deposited. In a case where a defendant is directed to deliver possession of property to a plaintiff on condition of depositing a certain amount payable to the defendant the possession of the defendant does not become wrongful until the deposit is made and notice thereof given. Admittedly the amount decreed to be paid by way of value of improvements had not been deposited in court on the date of the decree passed by the learned Munsiff. The possession of the defendant had not, therefore then become wrongful. If so, no question arose of any mesne profits to be considered by the learned Munsiff.