RAVURU PUNNAMMA Vs. LAKKARAJU VENKATA SUBBA RAO

JUDGEMENT

(1.) THIS second appeal arises out of O.S. No. 199 of 1946 on the file of the Court of the District Munsif, Tenali, for recovery of plaint schedule site and for removal of the wall standing thereon. The facts found and admitted may be briefly narrated. The plaintiff and defendant are the owners of adjacent houses in Tenali Municipality, In the year 1917 the defendant's father, Ramakrishniah entered into an agreement in respect of 15 -5/9 square yards' in D. No. 55 belonging to the plaintiff. Ramakrishniah intended to construct a building on his site and he found it necessary to have a boundary wall between his site and the plaintiff's site. They agreed that Ramakrishniah should be allowed to construct a masonry wall on the suit site to serve as a boundary and the plaintiff should continue to be the owner of the site. Another stipulation was that Ramakrishniah should not build any house or project his eaves over the wall at any time. He also agreed to keep the said wall in good repair at all times and in case it was damaged or got demolished, he was to get it repaired and restored. According to the agreement if he did not repair it or restore it within three months from the day the plaintiff asked him to do so, she could take back the site. If the wall was kept in good condition, it was agreed that the plaintiff should not ask for the demolition of the wall or for recovery of the site. Subsequently Ramakrishniah put up buildings on his site. In so building, the roof of his kitchen was made to extend over the boundary wall by 3' 5" The bath room also rested on the wall. The Commissioner pointed out that east of the kitchen, on the top of the boundary wall, a little southward from the middle, there were two pillars 3' 8" high and resting on them was a wooden beam 51/2" thick and on this the northern wall of the defendant's bath room 6' 6" by 4' 4" was supported. So too the plaintiff in constructing her house allowed her cement beam of the terrace to rest on the wall.

(2.) THE first question is whether under the terms of Ex. A. 1, in the circumstances that happened, the plaintiff will be entitled to evict the defendant. A perusal of Ex. A. 1 shows that the parties made a clear distinction between the stipulation prohibiting the defendant from building any house or projecting his eaves over the wall and the stipulation asking him to keep the wall in good repair or restoring the wall if demolished. Under the agreement the plaintiff was entitled to recover back the site only if the defendant broke the second condition. So long as he kept the wall in good repair, the plaintiff cannot recover back the site. Therefore both the Courts found that the first stipulation is only a warranty, the breach whereof enables the plaintiff to recover damages and in regard to the second condition that it goes to the root of the contract and its breach will enable the plaintiff to recover possession. I agree with the construction put upon the documents by the Courts below.

(3.) LEARNED counsel for the appellant relied upon Section 116, Evidence Act, in support of his contention that the law of forfeiture will apply equally to a lease as well as licence. Under Section 116, Evidence Act,