SIVARAJAN Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) Clause.2(1) -- Lease of land with building thereon -- Transaction cannot be said to amount to letting out of the buildings or huts separately for residential or non residential purposes

(2.) The lessee who had taken a property on lease from the interim receiver appointed by the District Court of Quilon in Insolvency Petition No. 11/1122 on the file of that court, is the appellant. The owner of the property is the 2nd respondent. One Dayanidhi Rao against whom insolvency petition No. 11/1122 has been filed bad only a leasehold right over this property. Pending the question of the adjudication of the debtor as an insolvent, the Official Receiver attached to the lower court was appointed as interim receiver to take possession of the properties, of the debtor. The Receiver accordingly took possession of the properties, and on 26-12-1950 leased them out to the present appellant for a period of one year. On the expiry of the lease period, certain orders were passed against the lessee for the surrender of possession of the property. In spite of those orders the lessee did not actually vacate the property but repeatedly applied for time for surrender of possession of the property. In view of such an attitude on his part, the receiver filed a report to the court on 18-2-1952 requesting necessary directions and orders for effectively recovering possession of the property from the lessee. On getting notice of that report the lessee appeared and questioned the jurisdiction of the court to order recovery of possession of the property from him. This objection was ruled out by the lower court and an order was passed on 8-3-1952 directing the lessee to surrender possession of the property to the receiver on or before 4-3-1952. In case of default, the Receiver was directed to take delivery of the property through court. The appeal is against this order.

(3.) For a proper appreciation of the points raised at the hearing of this appeal, it is necessary to bear in mind some more facts relating to the transaction in question. The property covered by the lease in favour of the present appellant consists of a garden land 35 cents in extent with certain buildings and structures thereon. As already stated, the lease was for a period of one year only. In the lease deed the lessee bad expressly undertaken to surrender possession of the compound and the buildings at the end of the period without raising any objection whatever. There was a further undertaking that he would surrender possession of the property and the buildings even before the expiry of the period, on such a demand being made by the court at any time during the currency of the lease. By about the close of the period of the lease, the receiver sold two temporary sheds in the property, in public auction. On the expiry of the lease the auction purchaser as authorised by the receiver, went to the property for removing these sheds. The lessee objected. The matter was reported to the court by the receiver. At that stage the lessee appeared through an advocate and filed an application on 8-1-1952 praying for 6 months' time to vacate the premises, after making other arrangements to shift his motor workshop. After hearing all the parties concerned, the court passed an order granting a month's time for the lessee to remove his workshop and to vacate the property. At the end of that period he tiled another application on 8-2-1952 praying for five months' time more. Finding that the matter was concluded by the prior order, the second application was dismissed by the court. The lessee has not chosen to challenge any of these orders in appropriate proceedings. But at the next stage when the receiver sought the intervention of the court to secure possession of the property, the stand taken by the lessee is that the Court has no jurisdiction to direct him to surrender possession of the property to the receiver.