POCKER Vs. KAMMU

JUDGEMENT

(1.) The defendant in O. S.139 of 1984 on the file of the Munsiff's Court, Tirur is the appellant. The appeal is against the judgment in A.S. No 36 of 1986 of the Court of the Subordinate Judge. Tirur. The suit is for eviction of the defendant from the plaint schedule shop room. The suit was decreed and the defendant was directed to surrender vacant possession of the plaint schedule shop building to the plaintiff within 3 months from the date of the judgment which was on 22-2-1986. The lower appellate court dismissed the appeal filed by the defendant as A. S.36/1986, with costs and the defendant was granted 6 months time to surrender the plaint schedule shop room to the plaintiff. It is thereafter the second appeal is filed raising the following questions of law :

(2.) I heard counsel on behalf of the appellant. There is no lease of land involved in the case. The tenant of a building is not entitled to make any improvements without the consent of the landlord. There is no evidence to show that the defendant has made any improvements. The lessee is also not entitled to make permanent structures without consent of the owner and there is no case that the landlord has permitted to make such improvements. Counsel for the appellant referred to the decision in Narayani Amma v. Parukutty Amma - 1980 KLT 26 to show that the appellant is entitled to compensation under the Kerala Compensation for Tenant Improvements Act 29/1958. But that decision will apply only to tenant of a land as defined in that Act and has no application to the facts in question i.e. of a building lease. Therefore the courts below rightly denied the claim for improvements.

(3.) Regarding the validity of notice three contentions are raised before me. S.106 of the Transfer of Property Act provides for termination of lease. A lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable by six months' notice expiring with the end of the year of tenancy by either side and a lease of immovable property for any other purpose shall be deemed to be a lease for month to month terminable on the part of either lessor or lessee by fifteen days notice expiring with the end of the month of the tenancy. Counsel argued that the lease in question was for manufacturing purpose. The argument is ingenious but there was no pleadings or foundation for such an argument. Appellant also had no such case before the Trial Court or even in the lower appellate court. Whether the lease in question is a lease for manufacturing purpose will depend upon the facts of the case which has to be pleaded and evidence to be adduced. The onus of proving that the lease is only for manufacturing purposes is on the tenant. Such a question cannot be allowed to be raised for the first time in the second appeal. Therefore the contention of the appellant that the lease in question is one for manufacturing purposes terminable with six months notice expiring with year of tenancy should fail because the original lease or the subsequent terms of entrustment are not in evidence.