VENKITAPATHI NAIDU Vs. SETHU UDAYAR

JUDGEMENT

(1.) THE first defendant in a suit for recovery of possession with arrears of rent is the appellant in this appeal. THE plaintiff sought to recover 3 items of properties, which, according to him had been entrusted to the defendants under an oral arrangement entered into on 17th september, 1955 whereunder Rs. 162/-was agreed to be payable as rent, Rs. 100/-being rent of item 1 and Rs. 62/- being rent of items 2 and 3 and whereunder the defendants also agreed to surrender the property on demand. THE plaint mentions default of payment of rent and the plaintiff seeks a decree for rent for the period from 17101958. For rent upto 17101958 a decree had already been obtained. This was in O. S. 73 of 1958 on the file of the Subordinate Judge, palghat. In that suit the first defendant had denied the rental arrangement but it had been found. THE plaintiff claimed in the present suit, in the alternative, a decree for damages for use and occupation of the plaintiff's premises. THEre is also an allegation in the plaint that due to want of proper care and timely maintenance one of the buildings had fallen into ruins, and had practically collapsed. On this account the claim is made for damages to the extent of 30,000/ -. A notice was issued to the first defendant on 317 1961, ext. B7 whereupon the first defendant in his reply disowned any liability for payment of rent as he disclaimed to be in possession.

(2.) ACCORDING to the first defendant he was not liable either, for payment of rent or for damages. He admitted that he was conducting a match factory in the plaint item No. 1 but, according to him, the premises were taken on rent from the plaintiff by the second defendant. He would say that on account of his relationship with the second defendant having become strained he had to stop the functioning of the factory from February 1968. He further alleged that on 17 51968 he went to the factory premises and entrusted to the plaintiff the entire machinery belonging to him under a list and the plaintiff is said to have taken over the premises to his possession on that date and continued in possession ever since so that the first defendant cannot be made liable either for rent after that date or for damages. It is said that the plaintiff allowed the second defendant to remove the machinery entrusted to the plaintiff's care and the suit itself was filed in collusion with the second defendant with whom the first defendant had fallen out.

(3.) WE will first consider the liability of the first defendant to answer the claim for rent. Even in the earlier suit, O. S. 73 of 1958, he had disputed the averment of the plaintiff that he was a tenant. According to him, the building was taken on rent by the second defendant, and therefore, he alone was liable to answer. It appears from the evidence that some time after the commencement of working of the match factory in the leased premises, defendants 1 and 2 fell out and the functioning of the factory ceased. There was some proceeding between them before the criminal court in which the first defendant took up the stand that the second defendant had nothing to do with the business, that he had fraudulently removed the machinery and that he, the first defendant, was the tenant paying the rent. It appears that originally there was a rent deed taken by the plaintiff from the second defendant alone, but that was for item I only. But the case of the plaintiff that Ist defendant also was a tenant, was substantiated by the stand taken by the first defendant in the criminal proceedings against the second defendant, and therefore in O. S. 73 of 1958 the court found that the first defendant was also answerable as a tenant. Hence it is not open to the first defendant now to contend that the lease was not binding on him or that he was not liable as a lessee. It is also not open to him to contend that he had surrendered the lease on 17th May 1958 since the same contention was raised in the earlier suit and a decree was granted to the plaintiff for recovery of arrears of rent upto 17101958. This was necessarily negativing the plea of surrender in May. Therefore, the court below was right in holding that the first defendant's case of surrender set up in this case must also be found against. WE have necessarily to consider whether the case of the plaintiff in the cross-objection that the decree for rent must continue even after the date for which decree was granted by the court below is sustainable. It is true that the first defendant had done whatever was in his power to make it clear that he was no longer in possession. Even in the written statement, Ext. A4 dated 24 21959 filed by the first defendant in the suit O. S. 73 of 1958 he had categorically stated that he had left the premises lock, stock, and barrel on May 1958 and the plaintiff had been put in possession. Of course, there was no independent evidence as to the plaintiff having been so put in possession. But the facts do indicate that the defendants had removed themselves from the premises and the machinery therein had also been removed some time in 1958 itself. In our opinion, the plaintiff is right in saying that notwithstanding this there was no surrender. Mere abandonment by a tenant of his possession will not amount to surrender. The abandonment must also be accompanied by acceptance on the part of the landlord. Even subsequent acceptance would be sufficient. But the attitude taken by the plaintiff was not one which would imply that he was accepting the surrender. Therefore notwithstanding the stand taken by the defendants, there has been no surrender in May 1958 as has been pleaded. It is true that as a prudent landlord plaintiff could have taken possession at the time. But that is not to say he got possession of the property merely by reason of the fact that the first defendant asserted in Ext. A4 that he was not in possession and possession had already been given over to the plaintiff. He would have been better advised to state that he was prepared to surrender possession and was so surrendering possession and if such surrender was possible at that time and he could have put the landlord in possession that would have operated to terminate the lease.