MANICKLAL Vs. TRUSTEES OF PORT TRUST AND ORS.

JUDGEMENT

(1.) This suit involves an examination of and investigation into a triangular contest and claim in respect of certain superstructures put up by the second Defendant herein on the land leased to him by the first Defendant, by a mortgagee -decree holder, the Plaintiff in the suit, an attaching decree holder, the third Defendant in the suit and the lessor himself who had obtained a decree against the second Defendant for arrears of rent.

(2.) The facts in this case are not largely in controversy and they have been almost exclusively borne out by documentary evidence produced in this case. As a matter of fact, almost the entire documentary evidence has been marked by consent and the documents have been given numbers, exhibits P -1 to P -35, irrespective of the party who produced the same except exhibits D -1 to D -4 which, at the instance of the Counsel for the Plaintiff have been marked as the documents of the Defendants, exhibits D -1 and D -2 being the documents of the first Defendant and exhibits D -3 and D -4 being the documents of the third Defendant. The only witness examined was one Mr. S.M. Patni, as D.W. 1 on behalf of the third Defendant to speak to the value of the superstructure.

(3.) Under exhibit P -1, dated November 2, 1950, a vacant site of an extend of 10,282 square feet belonging to the 1st Defendant was leased out in favour of the second Defendant for a term of five years from February 1, 1950, on a rental of Rs. 118 plus 50 per cent surcharge. One of the covenants in the lease deed provided that the lessee had no right to erect or cause to be erected any other building or erection upon the said premises other than a godown for storage of kerosene oil, etc., and such building and sidings as the lessee may consider necessary for the purpose thereof. It contained other usual covenants to some of which a reference will be made later. The second Defendant committed default in payment of rent for the period commencing from December 1, 1951, till January 31, 1953. By exhibit P -6, dated February 12, 1953, the first Defendant sent a notice stating that the first Defendant as lessor was entitled to re -enter and re -possess the leased premises for non -observance of the second Defendant's covenant as to punctual payment of rent under exhibit P -1 and expressing the lessor's intension to determine the lease re -enter and take possession of the leased premises. Exhibits D -1 and D -2 show that on February 16, 1953, arrangements were made for taking possession of the leased premises and exhibit D -2 in particular signed by S.M. III states as follows: