CHACKO Vs. VARGHESE

JUDGEMENT

(1.) These second appeals arise out of a lease suit. In S.A. No. 507 of 1950 plaintiff is the appellant, and in S.A. No. 610 of 1950 defendant is the appellant. According to the plaint allegations, in execution of the decree in O.S. No. 56 of 1108 of the Kanjirappalli Munsiff's Court obtained by him against the defendant, plaintiff purchased the plaint property and obtained delivery of possession of it through court on 19.7.1112, and he leased it to one Verghese Mathew for nine years on 24.7.1114. Plaintiff alleges that Verghese Mathew gave a sublease for one year to the defendant on 2.8.1114 and that the latter got possession of the property in pursuance of the said sublease. On 10.12.1116 Verghese Mathew gave to the plaintiff a release of the lease taken by him, and in 1117 on the strength of that release plaintiff brought the suit which has given rise to these second appeals for recovery of possession of the property from the defendant with arrears of rent and future mesne profits from date of suit. The rent payable under the sublease was B. Rs. 60 per year. Plaintiff claimed in the plaint arrears of rent at this rate from 2.8.1114 to 9.4.1117. From the latter date till date of suit he claimed arrears of rent at the rate of Rs. 1,000/- per year. The enhanced claim was made on the ground that on 9.4.1117 he had sent a registered notice to the defendant demanding surrender of possession of the property and payment of future rent at the rate of Rs. 1,000/- per year if the defendant did not surrender possession of the property and continued to remain in possession. The property is a rubber estate, and the plaintiff alleges that the income from it has gone up considerably after the sublease was granted on 2.8.1114. According to him, the income from the property would be far greater than Rs. 1,000/- per year. The defendant denied the lease as well as the sublease, and contended that the plaintiff had no right to the property and was not entitled to recover possession of it from him. After filing the suit the plaintiff applied for the appointment of a receiver for the plaint property. Defendant resisted that application also, but the Trial Court allowed it; and on 9.10.1120 the receiver appointed by that court took possession of the property from the defendant. The receiver has also deposited in court the profits taken by him after 9.10.1120. Repelling the defendant's contentions in the suit the Trial Court gave a decree to the plaintiff allowing him to recover possession of the property with arrears of rent as claimed in the plaint and future mesne profits from date of suit till 9.10.1120 at Rs. 1,000/- per year. In respect of the period from 9.10.1120 till date of recovery of possession by the plaintiff, the Trial Court allowed him to recover the net profits realised by the receiver. From the decree of the Trial Court the defendant took an appeal to the District Court of Kottayam, and the Temporary Second Judge of that court confirmed the Trial Court's decree and dismissed the appeal except in regard to the enhanced rent from 9.4.1117 and the mesne profits from date of suit claimed by the plaintiff. The learned Judge held that the plaintiff was entitled to get only B. Rs.60 per year as rent even after 9.4.1117 and that after the institution of the suit also the plaintiff was entitled to recover only rent at this rate and not mesne profits as claimed by him. Consequently he directed that the excess amount collected by the receiver should be paid back to the defendant. Against the portion of the lower appellate court's decree disallowing his claim for enhanced rent and mesne profits after the date of suit plaintiff has filed S.A. No. 507 of 1950, and against the portion of the decree allowing the plaintiff to recover possession of the property with arrears of and future rent the defendant has filed S.A. No. 610 of 1950.

(2.) So far as S.A. No. 610 of 1950 is concerned the findings of the courts below are concurrent. Ext. J is the copy of the delivery kychit in O.S. 56 of 1108 and Exts. A(1) and B are respectively the lease deed of 24.7.1114 and the sublease of 2.8.1114 relied upon by the plaintiff. According to the defendant there was no actual delivery of possession in O.S. No. 56 of 1108 and Exts. A(1) and B are not genuine documents. The courts below have concurrently found that there was real delivery of possession in O.S. No. 56 of 1108, that Exts. A(1) and B are genuine, and that the defendant got possession of property under those lease deeds. Absolutely nothing has been made out for disturbing these concurrent findings of fact. S.A. 610 of 1950 therefore fails and has to be dismissed with costs.

(3.) In S.A. No. 507 of 1950 it is urged on behalf of the plaintiff that he had sent a registered notice to the defendant on 9.4.1117 demanding surrender of the property and payment of future rent at the rate of Rs. 1,000/- per year if the defendant did not surrender possession of the property and continued to hold it. The defendant refused to accept this notice, and it has been produced as Ext. N in the case. Ext. N is a notice to quit coupled with a demand for enhanced rent. The demand is very clear and definite in it. The receiver's report shows that the property would easily fetch a rent of Rs.1,000/- per year. It cannot, therefore, be disputed that the plaintiff had a right to get enhanced rent at the rate of Rs. 1,000/- per year from 9.4.1117. But it is not on the ground that he had no such right that the lower court disallowed his claim for enhanced rent. The claim was refused because he had not paid court fee on the claim for the enhanced rent. In the plaint the suit was valued on the basis that the annual rent was only B. Rs.60 per year. The defendant contended that the court fee paid was insufficient, and in spite of that contention the plaintiff did not seek to amend the suit valuation and pay court fee on the enhanced rent claimed by him. The decision of the lower appellate court in regard to the claim for enhanced rent from 9.4.1117 to date of suit was, therefore, right; and in view of the plaintiff's omission to amend the suit valuation and pay court fee on the enhanced rent in spite of the defendant's contention regarding court fee, I am unable to accede to the prayer that a decree may be given to the plaintiff for claiming enhanced rent on payment of the necessary court fee in this court.