KRISHNA PILLAI Vs. MADHAYAN NAIR AND ANOTHER

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. A1 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 licensee 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 Section 106 of the Kerala Land Reforms Act. They pleaded discharge of rent due till 30th Dhanu 1149. 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.

(2.) IN appeal, the lower appellate court has confirmed the finding of the trial court that the rent of the building is only at the rate of Rs. 4| - per mensem. The enhancement of rent pleaded is not proved and the defendants have failed to prove the discharge of arrears of rent till 30th Dhanu 1149. The court below has however vacated the decree for eviction on the ground that there is no valid notice to quit as required by Section 106 of the Transfer of Property Act, and there was no valid termination of the tenancy of the 1st defendant. The decree for arrears of rent from 1st June 1971 was confirmed by the lower appellate court. It is against this that the plaintiff has come up in Second Appeal.

(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 paragraph 6 of the plaint it is stated as follows: