GNANAMONI Vs. ABRAHAM

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants and the matter arises in execution. The decree was for recovery of possession of immovable property on foot of a lease and the suit was O. S. 12 of 1116. The defendants claimed value of improvements and did not contest redeemability as they could not do so then. A commission was issued by the Court and a report submitted in the year 1117 detailing the various items of improvements existing on the property. The improvements comprised trees as also a certain building. The lease sued on was of a vacant site and all the improvements on the property were effected by the defendants after the lease. This is not disputed.

(2.) After Act VIII of 1950 which came into force on 25-3-1950, an application for execution (E.P. No. 351 of 51) was presented by the decree holder on 6-11-1951. No claim was made therein for eviction on the ground that the defendants committed waste on the property. It is conceded that the Act applies to the case and unless it is brought under the exceptions which would entail forfeiture of permanency conferred upon the tenant, viz., either that the tenant has defaulted payment of rent or that he has committed waste a decree for eviction cannot be executed and the possession of the defendants disturbed. So far as the arrears of rent are concerned, it is admitted that the defendants have deposited all that is due. That was not a ground on which eviction was granted. As already stated even in the execution petition dated 6-11-1951, eviction was not sought on any of the grounds mentioned in Act VIII / 1950. In the objection petition (C.M. P. 13230) dated 23-11-1951 presented on behalf of the defendants, they claimed immunity from eviction based on two Acts, (1) Act XXII / 1124 and (2) Act VIII of 1950. To this application an objection was filed by the decree holder on 30-11-1951 (C.M.P. 13501). The courts below considered the matter and reached the conclusion that the defendants have committed waste on the property and that they have rendered themselves liable to be evicted notwithstanding the Act VIII of 1950. In other words the courts below found that a ground for eviction in the matter of waste has been made out by the decree holder.

(3.) The only ground relied upon by the courts below to sustain the finding that the defendants have committed waste upon the property is that out of the improvements that are found to exist in the first commissioner's report submitted in 1117, there were a few trees which are non existent and the branches of certain other trees have also ceased to exist. A commission was issued to assess the non existence either of the whole trees or of branches and a report was submitted on 19-1-1952. It says that the removal of the trees and branches would be about two years ago. It is upon the basis of this evidence and nothing else that the courts below found that the defendants were guilty of waste which would entail forfeiture of immunity from eviction conferred upon them by Act VIII of 1950.