MOHAMMAD NINAVE RAWTHER Vs. NEELACANDAN

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 plaintiffs 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 his southern-most room, which is separated from a row of three or four rooms on the north, by a covered passage or corridor, about 3 1/2' in width. According to the plaintiff, the building was leased to tho 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 noncompliance 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, find 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 the points and decreed the suit; but on appeal the Addl. 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 important question arising for determination in the appeal is, as to who put up the building. There is no dispute that the plaintiff is the owner of the row of rooms immediately to the north and separated by the passage. The defendant's case was that the land was Jungly, and as he stated in his deposition was infested by wild elephants. It is difficult to believe this case, when only a few feet away the plaintiff had his rooms, all of which were occupied. The defendant in his first written statement had denied the title of the plaintiff, but in the second, set up a case of perpetual lease in his favour. This has been found against, and though that issue does not appear to have been pressed in the lower appellate court, an objection memorandum has been preferred by him in this court, and counsel for the respondent was not able to sustain it. It would also appear, that while the defendant's case, as stated above was that the site of the building was cleared by him. and that he put the building on the land so cleared, his witnesses Dws. 2 and 3 have testified, that there had been a building previously in existence and they differed between themselves only as to the manner of the disappearance of that building. Dw. 2 stated that it was destroyed by fire, while Dw. 3 gave evidence that it was demolished by one Closckaka. The learned Judge explained this discrepancy, stating that Dws. 2 and 3 were not referring to the same point of time as the defendant, but to an anterior period. Ho omitted to note, that the defendant's case was, that, the land had not been previously built upon. Thus, it appears to me, that the case of the defendant and the evidence of his witnesses cannot be accepted. Ext. I relied on by the defendant, which contains a few items of account relating to the construction of the building, is, as the learned Judge pointed out, no account book in any sense of the term and is at best, a memoraduan of a few entries. Other entries in it, Exts. II and III relating to the discharge of rent have been found to be spurious. I have no hesitation in rejecting Ext. I as a fabricated account.