HAMSA PATEL Vs. S BALAKRISHNAN

JUDGEMENT

(1.) ALL the four appeals under Clause 15 of the Letters Patent arise out of a suit filed by the two respondents in the appeals, against the appellants and two others, who had remained ex parte in the proceedings, seeking delivery of possession of the suit property, arrears of rent from 1.1.1975 to 31.12.1976, damages for use and occupation from 1.1.1977 to 29.4.1977 and for payment of future damages at the rate of Rs.375 per month. In the suit, the appellant in L.P.A. No.36 of 1989 and L.P.A. No.37 of 1989 was the 5th defendant and the appellants in L.P.A. No.39 of 1989 and 40 of 1989 were defendants 1 and 2. Defendants 3 and 4, are said to be the sub tenants of defendants 1 and 2, and they remained ex parte through-out the proceedings. The suit was filed originally against the first four defendants only. On defendants 1 and 2 filing a written statement stating that it was the fifth defendant who is the legatee under a Will of the original lessee, that the plaintiffs/respondents 1 and 2 filed I.A.No.568 of 1978 to implead the fifth defendant as a party. We will refer to the parties by their rank and status as per the cause title in the suit.

(2.) THE plaintiffs/respondents 1 and 2 are the owners of a site measuring 70' x 127' in Coimbatore Town. Under a lease deed dated 12.1.1957 marked as Ex.B.1 in the suit, the father of defendants 1 and 2 took the property on lease for running his business called "Diesel (India)". THE rent was Rs.300 per month and was subsequently raised to Rs.375 per month from 1-3-1974 onwards. For the purpose of the present appeals, only two clauses in the lease deed have some significance. THE first is that the lessee was given a right to construct tenements, sheds and superstructures on the property for his convenient enjoyment. THE second is that the lessee was given a right to sub-let a part or the whole of the property demised under the document, to any third party. THE plaintiffs had filed a suit O.S.No.50 of 1975 claiming arrears of rent from the father of defendants 1 and 2. During the pendency of this suit, the father passed away on 31.3.1975. Defendants 1 and 2 and their mother were impleaded as legal representatives of the deceased G.M.Patel. It is the case of the plaintiffs that defendants 1 and 2 alone continued the business and agreed to pay rent to the plaintiffs. THE suit O.S.No.50 of 1975 was decreed in favour of the plaintiffs on 25.3.1977. It is the case of the plaintiffs that defendants 1 and 2 failed to pay rent even after 31.12.1974, and had also sub-leased portions of the property to strangers namely, defendants 3 and 4. By a registered notice dated 26.9.1976, the plaintiffs called upon defendants 1 and 2 to vacate the premises by the end of 31.12.1976. THEy also offered to pay Rs. 15,000 towards the value of the superstructures constructed by the lessee. For the purpose of impleading the fifth defendant, the plaintiffs added paragraph 6-A in the plaint. In this paragraph the plaintiffs only state that as per the written statement of defendants 1 and 2, the original lessee G.M.Patel had bequeathed the business, M/S. Diesel (India), and the superstructure to and in favour of his daughter-in-law namely, the fifth defendant under a Will dated 11.4.1974. THE plaintiffs however, stated that the fifth defendant was never in possession of the property and never claimed to be a tenant of the suit property.

(3.) THE averments in the written statement of the fifth defendant are identical to the averments of defendants 1 and 2 in so far as the bequest made to the fifth defendant in support of the suit property. She also claims a right to purchase the property as a tenant by exercising the power under Section 9 of the Act. She agreed to pay the arrears of rent but denied the liability to pay the damages for use and occupation.