PERCY BHANU Vs. YOHANNAN SKARIA

JUDGEMENT

(1.) THE plaintiffs are the appellants in this second appeal. THE plaint property belonged to one Dr. Bhanu. On his death 1st plaintiff and her children became entitled to the property. 1st defendant took the plaint property on lease under Ext. A in the year 1953 on executing a lease deed in favour of the 1st plaintiff. THE lease was for a period of one year and for a rental of Rs. 200/- per annum. Only Rs. 100/-had been paid on the date of execution of Ext. A. No further payment was made towards rent. After the expiry of the term a demand was made for surrender of the property with arrears of rent. But, that was not complied with and hence in 1954 the present suit was filed by the 1st plaintiff alone for recovery of possession with arrears of rent. 1st defendant denied that he is in possession of the property under Ext. A. He contended that he came into possession of the property in the year 1115 on an arrangement that he should effect improvements in the property and that on eviction he will be paid for the value of improvements. According to him, when he took possession of the property there was an agreement to pay only Rs. 10/-per annum as pattom and that till the date of suit the same had been paid. When this written statement was filed the plaintiff moved for appointment of a receiver. Though a conditional order was passed directing the 1st defendant to furnish security for the amount claimed, that condition was not fulfilled and the Receiver took possession of the property in July, 1955. Subsequently the suit was stayed under Act 1 of 1957. Later the defendant assigned his rights to the 2nd defendant and the latter filed additional written statement claiming fixity of tenure under Act 4 of 1961. THEre was a partition between the Ist plaintiff and her children and the present 2nd appellant to whom the property was allotted got himself impleaded as an additional 2nd plaintiff. His prayer to amend the plaint was not allowed and the lower court finding that Ext. A lease deed is genuine decreed the suit for arrears of rent only. THE question whether the defendant is entitled to fixity of tenure and whether the plaintiff's prayer for recovery of possession is sustainable were left open to be agitated in other appropriate proceedings under Act 4 of 1961. THE receiver was directed to handover possession of the property to the 2nd defendant. Against this judgment the plaintiff filed A. S. No. 132 of 1962 before the lower appellate court and got a stay of the direction to hand over possession of the property to the 2nd defendant. By that time Act 4 of 1961 was struck down as ultra vires by this Court and in its place the Legislature enacted Act 1 of 1964. Following this the lower appellate court remanded the matter to the trial court for a proper adjudication after entering findings on all the issues and also directing the trial court to dispose of the suit in accordance with the provisions of Act 1 of 1964. THE trial court again disposed of the suit on 27 71964 without entering any findings on any of the issues apparently on the basis that the parties agreed to leave open the issues raised for consideration in other appropriate proceedings under the new Act. Practically the earlier judgment of the trial court was restored. THE plaintiff again filed an appeal, a. S. No. 329 of 1964, and got a stay of the operation of the decree. THE lower appellate court allowed the plaintiff to amend the plaint so as to raise such contentions as are open to the plaintiff under Act 1 of 1964. A direction was also given to the trial court to enter findings on all the issues and submit findings within a particular time. THE 2nd plaintiff pleaded that the lease ext. A was taken by the first plaintiff in her individual capacity only and that it does not bind him. THE trial court found Ext. A to be genuine and that defendants are entitled to fixity of tenure under Act 1 of 1964. On these findings the lower appellate court heard the matter over again. That court accepted plaintiff's case that Ext. A lease was taken by the 1st plaintiff in her individual capacity only and that it is not binding on the other heirs of dr. Bhanu and even in respect of the 1st plaintiff's share, she being entitled only to a limited interest, the lessee was found entitled to fixity of tenure for the life time of the 1st plaintiff alone. THE 2nd plaintiff's contention that by the partition deed the 1st plaintiff bad ceased to have any interest in the property and as such her lessee's right also got terminated was not accepted. Both sides were dissatisfied with this decree. S. A. Nos. 71 and 75 of 1967 were filed by the defendants and the plaintiff respectively. Before these appeals were heard Act 35 of 1969 came into force on 111970 which created fresh tenancies and additional rights on the tenants. So, this Court set aside the findings of the lower appellate court and remanded the whole matter to the trial court for a fresh decision of the case. THE parties were allowed to amend the pleadings, and put forward such contentions as may be available to the parties under the amended Act 1 of 1964. THE matter went back to the trial court again. THE trial court found Ext. A to be genuine, also found that the 1st plaintiff had the power of attorney of her children and accepted Ext. A on behalf of herself and her children and therefore the lease is binding on the entire property and on the heirs of Dr. Bhanu. THE possession of the Receiver was held to enure to the benefit of the defendant. Consequently fixity of tenure was found in favour of the defendant and a decree for arrears of rent was granted to the plaintiffs subject to the provisions of S. 73 of Act 1 of 1964. THE plaintiffs appealed. THE lower appellate court concurred with the trial court in holding that the lease Ext. A was accepted by the 1st plaintiff on her own behalf and on behalf of the other heirs as their power of attorney holder Consequently the 2nd defendant was found entitled to fixity of tenure under the Act. It is against this that the present second appeal has been filed.

(2.) IT is not open to the appellants to go behind the concurrent finding of fact that the lease Ext. A was accepted by the 1st plaintiff on behalf of all the heirs of Dr. Bhanu and rightly the learned counsel for the appellants did not attempt to challenge it. On the basis of that finding his submission was that in the circumstances of this case that finding will not be sufficient to confer fixity of tenure on the defendant in view of certain orders passed and change of possession effected pending suit. The lease Ext. A was only for a term of one year. After expiry of the term the 1st defendant had no right to continue in possession. Arrears of rent was also there. As per the finding of the court he had then no valid claim on the property or any valid defence against eviction. He was removed from possession of the property when the Receiver was appointed in 1955. The effect of appointment of a Receiver is that there is a change of possession. The quondam tenant ceased to have possession. The expression "holding", "to hold" and "tenant" which are defined in the Act all indicate that the person who claims fixity must be in possession either directly or indirectly. This is absent in this case and so the principle of the decision in Lonan v. Kochunarayana Pisharady (1971 KLT. 155 FB.) which holds that a quondam tenant continuing in possession when Act I of 1964 came into force is entitled to fixity will not apply. To this the respondents' counsel answered by saying that the appointment of a Receiver and removal of the defendant from the possession of the property does dot amount to a dispossession of the defendant and the possession of the Receiver enures to the benefit of the defendant and therefore he must be deemed to be in possession of the property and as such entitled to fixity under S. 13 of the Act. This leads to the consideration of the question whether the possession of the Receiver enures to the benefit of the defendant.

(3.) HENCE, I allow this second appeal, set aside the judgments and decrees of the courts below and grant a decree to the 2nd plaintiff to get possession of the property from the Receiver and if the 2nd defendant had taken possession of the property from the Receiver pending the appeal, to recover possession of the property from him. The plaintiffs are also entitled to recover arrears of rent as claimed in the plaint from the 1st defendant and to recover mesne profits at the rate of Rs. 200/- per year from the date of suit till the Receiver took possession. The proceeds of the property brought to court by the Receiver also will be disbursed to the 2nd plaintiff. In the circumstances of this case, I direct the parties to suffer their costs of this appeal. Allowed. . .