A. MOSES PILLAI Vs. M.K. GOVINDAN

JUDGEMENT

(1.) THE appellant in this second appeal is the owner, and the respondent is the tenant, of a house in Coimbatore. The suit was for obtaining pos -session of the house and for the recovery of Its. 70 as arrears of rent due till the date of the plaint. Out of this amount, Rs. 25 was said to be the balance of rent due for five months from 3rd February, 1943 to 3rd July, 1943; and Rs. 45 was, claimed as the rent which was payable from 3rd July, 1943 to 3rd August, 1943. It was admitted in the plaint that from 3rd February, 1943 to 3rd July, 1943, the defendant paid at the rate of Rs. 40 per month; but the plaintiff claimed that he was entitled to Rs. 45 per month even for those 5 months and that was why he claimed Rs. 25 as the balance due in respect of that period. The learned District Munsiff of Coimbatore dismissed the suit. An appeal to the Subordinate Judge of Coimbatore was also unsuccessful. Hence, the present second appeal, which is confined to the claim for rent, the plaintiff conceding that the defendant cannot be evicted in view of the provisions of the Madras House Rent Control Order, 1941, which was made applicable to the district of Coimbatore from 17th March, 1942.

(2.) THE defendant executed in favour of the plaintiff what is described as a house rent chit on 4th February, 1942, the principal terms of which are the following: The tenancy was in the first instance to last for one year and terminate on 3rd February, 1943. During this period Rs. 40 per month was to be paid by way of rent. The defendant was to deliver possession of the house to the plaintiff on 3rd February, 1943. Then occurs the following sentence, on which considerable reliance is placed on behalf of the plaintiff:

(3.) AS already stated rent was paid at the rate of Rs. 40 per month for five months from 3rd February to 3rd July, 1943. The learned District Munsiff held that rent at that rate was accepted by the plaintiff without protest. But as no finding was given by the learned Subordinate Judge I called for a finding from him as to whether the receipt of Rs. 40 per month by the plaintiff was on protest or without protest. The learned Subordinate Judge has now returned a finding that the plaintiff received these amounts on protest. This, being a finding of fact, is not challengeable in second appeal.