MOHAMMED Vs. UNNI

JUDGEMENT

(1.) The de fendant is the appellant. The plaintiff filed a suit for injunction restraining the defendant from interfering with his possession of the plaint schedule shop room. The courts below decreed the suit. The second appeal challenges the decree.

(2.) The plaintiff claimed that he was a tenant of the shop room under the redecessor of the defendant. The defendant had purchased the building from the original owner. The plaintiff had continued in possession as a tenant under him. But now the defendant was seeking to interfere with his possession of the shop room and throw him out of the shop room and hence he was entitled to be protected by the Court from such wrongful dispossession. The defendant in his written statement specifically pleaded that the plaintiff was in possession of the room when the defendant acquired title over the building. The plaintiff was not having any substantial business in the room. The plaintiff offered to surrender the building to the defendant. The plaintiff surrendered the room after receiving a sum of Rs. 10,000/- towards solatium and on the defendant purchasing the articles kept by the plaintiff in the plaint schedule room at the price of Rs. 7500/- and on the defendant waiving the arrears of rent due from the plaintiff. The case of surrender set up by the defendant was denied by the plaintiff who contended that he continued to be in possession as a tenant. The Courts below asked themselves the right question, whether .the defendant has established that the plaintiff surrendered the building which he held on tenancy. In the light of the clear plea in the written statement on the status of the plaintiff as a tenant at the time the defendant purchased the building and the further plea of a surrender by the plaintiff to the defendant, the case had necessarily to proceed on the defendant's plea and the question to be enquired into was whether the defendant had established that the plaintiff had surrendered the room. The Courts below, on an appreciation of the evidence in the case and in the absence of any scrap of paper in the possession of the defendant to establish any payment of solatium or the price of goods to the plaintiff, came to the conclusion that no such surrender has been established. This finding of fact in my view is fully justified on the materials available in the case and even inspite of the strenuous arguments in that behalf by learned senior counsel appearing for the defendant, I am not satisfied that there is any substantial error of law committed by the courts below in arriving at that finding.

(3.) Learned senior counsel Sri. S. Venkatasubramania Iyer raised a contention that the plaintiff at best was a tenant or a sub tenant whose tenancy or sub tenancy has determined by efflux of time. Counsel submitted that there was nothing to show that the Kerala Building (Lease & Rent Control) Act applied to the building during the relevant time. According to counsel thereof, such a tenant who claims to be in possession after the period of his lease has expired and who has not been able to establish a tenancy by holding over, would not be entitled to a decree for injunction against the owner of the building especially in the light of the principle recognised in Premji Katansey Shah v. Union of India With respect to learned counsel, I am not able to see much merit in this submission. Even when a tenancy expires by efflux of time, it is not the law in India that the landlord has right of re-entry. The landlord has still to seek recovery of possession from the tenant whose tenancy has expired either by approaching the concerned court or the concerned Tribunal. It is not open to a landlord to re-enter the premises or deprive the tenant or the former tenant of his possession without recourse to law and by taking up the stand that the tenancy has terminated by efflux of time. To permit such a course would be encouraging lawlessness and would be the very negation of the rule of law which we have given unto ourselves when we became a Republic. The title as a tenant, even if the period of tenancy has expired, is sufficient in law to clothe the tenant with a right to retain in possession until evicted by due process of law and to get a decree for injunction against the landlord so as to protect his continued possession. (State of Uttar Pradesh v. Dharmander Prasad Singh). It is therefore, not possible to accept the contention that even if the plaintiff was a tenant as admitted in the written statement he would still be not entitled to a decree for injunction against the defendant, the landlord of the building, because of the fact that the period of the lease has expired. All that the Supreme Court has now indicated in the series of decisions commencing from Premji Ratansey Shah v. Union of India (supra) is that the decree for injunction should not be granted by the court unless the person who claims the injunction has a colour of title or right to be in possession. Even a tenant whose tenancy has determined by efflux of time-assuming that he is not a statutory tenant in this case, there being no material either way-would have sufficient title to seek a decree for injunction to protect his possession even against the owner of the building whose right would only be to get recovery of possession of the building from him by approaching the appropriate court or Tribunal. I have therefore, no hesitation in rejecting this argument. I may also notice that the case that the tenancy of the plaintiff has come to an end by efflux of time, was not an aspect that was projected before the courts below and possibly could not have been projected in the light of the specific plea raised in the written statement of a positive surrender of the tenancy in favour of the defendant.