KRISHNA PILLAI Vs. MADHAVAN NAIR

JUDGEMENT

(1.) THE plaintiff is the appellant. THE suit is for eviction of a shop-building with arrears of rent from June 1971. THE building is in the occupation of the 1st defendant under Ext. Al rent-deed executed by him on 11-11-1957 agreeing to pay a monthly rent of Rs 4/-on the 11th day of every month. Rent was enhanced to Rs. 10/- from January 1970 and the 1st defendant has not paid rent from June 1971 onwards. THE 2nd defendant is the son of the 1st defendant, and he is impleaded in the suit as the panchayat licence for a tea shop in the premises stands in the name of the 2nd defendant. THE defendants denied the enhancement of rent and claimed fixity of tenure under S. 106 of the Kerala Land Reforms Act. THEy pleaded discharge of rent due till 30th Dhanu 1149.

(2.) THE trial court found that the plaintiff is entitled to a decree for recovery of possession of the shop-building with arrears of rent from June 1971, at the rate of Rs. 4/- per mensem. THE enhancement of rent pleaded by the plaintiff as well as the discharge of rent till 30th Dhanu, 1149 pleaded by the defendants were found against by the trial court.

(3.) THE argument of the learned Counsel for the appellant is that in the absence of a plea by the defendants that there is no valid termination of the tenancy, the lower appellate court should not have allowed the point to be raised and the prayer for eviction should not have been rejected for want of a proper notice to quit. In Para. 6 of the plaint it is stated as follows: THE defendants in their written statement do not deny the statement in Para. 6 of the plaint. Nor have they raised any plea of want of proper notice to quit terminating the tenancy. It is for the reason of the absence of such a plea that the learned Counsel submit that the court below should not have allowed the point to be raised at the appellate stage. THE learned Counsel relies on the decision of the Supreme Court reported in Bhagat singh & Others v. Jaswant Singh ( (1961) 1 KLR. 539) in support of his contention that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward" THE same principle is stated in the decision in Smt Chander Kali bai & Others v. Shri Jagdish Singh Thakur ( (1978) (1) SCWR. 260 ).