MUHAMMADALI Vs. UMMAYA UMMA

JUDGEMENT

(1.) The 2nd defendant is the appellant. The suit is for recovery of possession of the plaint schedule property two cents in extent and a building thereon with arrears of rent. The property belongs to the 1st plaintiff, wife of the 2nd plaintiff. The 2nd plaintiff on behalf of his wife had let the building to the 1st defendant on 15-11-1969 for the purpose of running a mill on rent fixed at Rs. 25/- per month. The tenancy was terminated as per Ext. A1 notice to quit dated 16-8-1977. The rent is in arrears from 1-7-74 onwards. The 2nd defendant is impleaded as a person found to be in occupation of the building. The occupation of the 2nd defendant is without the consent of the plaintiffs. The tenancy of the 1st defendant is one from month to month and recovery of possession is sought on termination of the tenancy by Ext. A1 notice to quit.

(2.) The defendants admit the plaintiffs' title and also the lease of the premises to the 1st defendant on 15-11-1969 on rent at the rate of Rs. 25/- per month. The tenancy rights of the 1st defendant were transferred to the 2nd defendant as per Ext. B1 sale deed dated 6-7-1974 executed by the 1st defendant in favour of the 2nd defendant. According to the defendants the transfer of tenancy was with the consent of the plaintiffs. The 2nd defendant further pleads that he had paid rent to the 1st defendant. He claims value of improvements for substantial repairs effected to the building in case he is found liable to surrender the premises. It is further contended that the notice to quit is not proper and the suit is defective for want of a notice to quit to the 2nd defendant.

(3.) The Trial Court found that the 2nd defendant, by virtue of the transfer Ext. B1 in his favour, should be reckoned only as a subtenant who would be bound by a decree for eviction of the 1st defendant, the notice to quit was proper and on termination of the tenancy the defendants are liable to be evicted from the premises. The 2nd defendant was found not entitled to any value of improvements. On these findings the suit was decreed for recovery of possession of the premises with arrears of rent for a period of three years prior to the suit. In appeal the lower appellate court has confirmed the decree for recovery of possession of the property. The lower appellate court has however modified the decree of the Trial Court and directed payment of the expenses for repair of the building to the 2nd defendant fixed at Rs.2464.25. The lower appellate court has also decreed future profits at the rate of Rs. 25/- per month under O.20 R.12 of the Code of Civil Procedure. Both the courts below have concurrently found that the 2nd defendant has failed to prove attornment to the plaintiffs after his purchase of the tenancy from the 1st defendant as per the sale deed Ext. B1.