MOHAMMED NINAVE RAWTHER Vs. NEELAKANDAN

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff, arising out of a suit for the declaration of his title to the suit property which is a building, and for the recovery of possession thereof with arrears of rent and future rent at an enhanced rate. Originally, the suit was laid for the recovery of possession and other reliefs, but on denial by the defendant of the plaintiff's title, and of the lease set up, the suit was converted into one on title, for the reliefs set forth above. The building in question is the southernmost room, which, is separated from a row of three or four rooms on the north, by a covered passage or corridor, about 31/2" in width. According to the plaintiff, the building was leased to the defendants in Medom 1123 M. E. for a term of two years, at a monthly rent of Rs. 5/ -. The defendant was alleged to have defaulted in the payment of rent, when the plaintiff issued a notice on the 23rd February, 1951, demanding surrender of the building with arrears of rent, and intimating that in the event of non-oompliance he would be charged with future rent at Rs. 15/- a month. The defendant in his reply stated, that the site of the building was originally jungly, that at his request the plaintiff and his father entrusted it to him at a ground rent of rs. 2/- per mensem for him to build upon, and that he erected the building at his expense. He denied that he had defaulted in the payment of rent or that he could be held liable for enhanced rent.

(2.) TO the amended plaint, the defendant contended that he had taken a perpetual lease of the site and erected a building in the year 1120, and that in the year 1123, he agreed to pay a rent of Rs. 5/- per mensem, and that in the event of surrender of the building he must be paid its value amounting to Rs. 400/ -. The court of first instance held against the defendant on all points and decreed the suit; but on appeal the Additional District Judge held, that the defendant had put up the building and therefore granted a decree to the plaintiff allowing recovery of possession but only on payment of Rs. 200/-to the defendant towards the value of the building; future rent at Rs. 5/- was also decreed.

(3.) THE learned judge thought, that the probabilities are opposed to the case of the plaintiff. THE chief circumstance relied on by him was, that there are differences in the materials used for the construction of this building and in the situation and location of the verandahs. THE outstanding fact remains, and has been admitted by Dw. 3, that the roof over the building touches the roof over the passage so closely, that no water will leak in through. Dw. 2 differed from him only in thinking, that water might leak. According to the evidence of the plaintiff and his witnesses, there was only one roof over the entire building comprising all the rooms. THE defendant had put up a glass frontage to the room occupied by him, for using it for the purpose of his business as a barber. It is the plaintiff's case, as disclosed by the evidence he has let in, that he had made some improvements in this part of the building previously to the lease in favour of the defendant. I consider, that the probabilities are in favour of the plaintiff. THE case of the defendant has been shifting from time to time, and as already noticed, is discrepant and unacceptable. I therefore agree with the learned Munsiff in holding, that the building was put up by the plaintiff, and not by the defendant.