EYYO Vs. VARKEY

JUDGEMENT

(1.) This second Appeal is by the defendant in a suit for recovery of property with arrears of rent till the date of suit and mesne profits from the date of suit till the date of recovery. The court below held that after the termination of the term of six years mentioned in the lease deed which was dated 8-8-1113, the defendant was only a tenant by sufferance and therefore the claim for mesne profits from the date of suit was justified. Accordingly a decree for mesne profits at the rate of 100 paras of paddy and Rs. 10/- per annum was awarded by the court below while the rent fixed under the lease was only 75 paras and Rs. 10/- per annum. The question of eviction does not arise in this case because it is admitted by the appellant that he has already surrendered the property during the course of this suit,

(2.) The award of mesne profits in the circumstances of this case cannot be sustained. This appeal, having been stayed under Act I of 1957 has now come up for disposal in accordance with the provisions of the Kerala Agrarian. Relations Act IV of 1961 as provided in S.95 of the latter Act. Even though the term of the contractual tenancy has expired before the institution of the suit, the plaintiff has claimed only arrears of rent till the institution of the suit. On the date of the suit the defendant was therefore treated as a tenant only. The lease was on 8-8-1113, and the suit was instituted on 17-10-1120. The tenancy that was on the date of the suit must therefore have continued at least till 8-8-1121. It follows that the suit was against a tenant. As was held in Ouseph Thommen v. Lekshmikutty Amma Kunjikutty Amma ( 1955 KLT 622 ) the facts whereof are parallel to those in this case, even if the lease was terminated before the statutes prohibiting eviction of tenants came to be, the continuance of the tenant on the holding cannot be characterised as wrongful. As the eviction of tenants even in execution of decree was prohibited from 1124, the continuance of the tenant on the holding has been legalised by statutes ; it is as if a statutory tenancy was granted in favour of the tenant; and if his possession was any way lawful, no question of mesne profits can arise. Hence, the decree of the court below awarding mesne profits at 100 paras of paddy and Rs. 10/- per annum from the date of suit cannot be sustained. For all the period from the institution of the suit till the date of surrender of the property, the plaintiff would be entitled only to the contractual rate of rent at 75 paras of paddy and Rs. 10/- per annum. The decree will be modified accordingly. The Second Appeal is thus allowed.