SAINABA Vs. SYED JAFFER AYDEED

JUDGEMENT

(1.) DEFENDANTS are the revision petitioners. Respondent herein filed O. S. 50/2003 before the Wakf Tribunal, Kozhikode against one Bapputty who was the predecessor-in-interest of the petitioners herein. The suit was one for getting vacant possession of the plaint schedule property and for damages for use and occupation. During the pendency of the proceedings, Bapputty died and the petitioners herein got themselves impleaded as his legal representatives, in the suit. According to the plaintiff, the plaint schedule shop room belonged to his father Puthiyamaliy akkal Syed Hassan Aydeed which forms part of a commercial building complex, put up by him, that Bapputty was a tenant in the plaint schedule property under his father based on an oral lease agreeing to pay a monthly rent of Rs. 500 (Rupees five hundred) per month and the lease was initially for a period of three months, that Ext. A-1 is a Wakf deed executed by the father of the plaintiff with respect to the plaint schedule property in the year 1998, and the plaintiff was made muthavalli of the Wakf, that after Ext. A-1 the original tenant Bapputty atoned to the plaintiff and was paying rent to him in the capacity as Muthavally of the Wakf, that while so, the tenancy was terminated by issuing notice evidenced by Ext. A-4 and A-6, that since the lease was thus terminated, the defendant was not entitled to continue in possession of the plaint schedule building, that possession after termination of the lease by the defendant is that of a trespasser and hence the plaintiff is entitled to get damages for user and occupation at the rate of Rs. 2,000 per month which is the prevalent rate in the locality. Since possession is not surrendered the suit was instituted.

(2.) THE defendant in his written statement contended that the suit is not maintainable, that the averment regarding entrustment etc. are not correct, that the property where his shop room is situated originally belonged to one Variyamthodi Achuthan Nair from whom he took the property on a monthly rent of Rs. 15 in the year 1955 and thereupon, he constructed a shed in the property and doing business there, that the landlord later assigned his right over the property in favour of Kurungattil Assya who demolished the shed situated there and constructed a new building there in the year 1962, that the defendants took the plaint schedule room and varandhas on three sides on lease on a monthly rent of Rs. 75 from the son- in-law of Assya, that since then the defendant had been in possession of the property, that the rent was subsequently enhanced to Rs. 125, that later he enclosed the varandah on the three sides of the room with the knowledge of the landlord after spending Rs. 25,000, that eastern portion of the room and a portion of the southern varandah were entrusted to the brother of the first defendant on a monthly rent of Rs. 45 and he is in possession of the same, that it is for security of the room that he extended the same, that the building now possessed is not owned by the landlord, that the extended portion stands on a purampoke land, that rent was enhanced on several occasions and from 1993 onwards rent was Rs. 500 per month, that though the alleged wakf created in respect of the plaint schedule property is not valid and the same is intended to exclude the property from the purview of the Kerala Buildings (Lease and Rent Control)Act, that the plaintiff is not entitled to claim any amount by way of use and occupation and if at all, the maximum rent prevailing in the area is Rs. 750 per month, that the valuation shown in the plaint and court fee paid are not correct and hence the suit is liable to be dismissed.

(3.) AFTER the death of the first defendant, supplementary defendants 2 to 9 were impleaded. They filed separate written statement taking the same contentions as was taken by the first defendant in the original written statement.