OUSEPH Vs. NEELAKANDAN NAMBUDIRI

JUDGEMENT

(1.) A learned single Judge of this court before whom the Second Appeal came up for hearing referred it to a Division Bench as per the following order:-

(2.) It is settled law that a tenant is at the time of restoring the property to the landlord bound to restore it in as good a condition as it was in at the time he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and that when accounts are taken at that time he is liable to make good the loss, if any, caused by his failure to perform any of the duties imposed upon him by law. S.108(m) and the last clause of S. 76 of the Transfer of Property Act may usefully be referred to in this context. Long before the Transfer of Property Act became law in Cochin - from which part of Travancore - Cochin this case arises - courts in that State had recognised that at the time of the landlord recovering possession he was entitled to claim any loss caused to the property notwithstanding that the injury complained of had been caused more years ago than a suit for damages would lie for. So long ago as 1898 the Appeal Court of Cochin had recognised this position - see Anna v. Kunjkavu Numbasthadiri II Select Decisions 134. The appellants contention is that the landlords right to recover damages is confined to claim it at the time of the recovery of possession of the holding and not at any time anterior to it.

(3.) A decision of the Appeal Court of Cochin reported in the same volume had repelled this position. In Mathu v. Ittivarah II Select Decisions 164 the learned Judges observed:-