MOOL CHAND Vs. BRIJMANI DEVI

JUDGEMENT

(1.) THIS is an application for leave to appeal to the Supreme Court. The facts, briefly stated, are as follows:

(2.) CERTAIN plots of land were let out by three persons, Govind Prasad Sen, Krishna Prasad Sen and ram Prasad Sen, brothers, to one Moolchand by means of a deed of lease D/- 30-9-35 for a period of ten years on a monthly rent of Rs. 52/8/ -. The lease was renewable at the expiration of ten years for another period of ten years. There was a condition in the lease that in case of default of payment of rent for six months the lease was to determine and the lessors were given a right of re-entry over the land. The lessee Mool Chand made costly constructions over the land and it is alleged that this was done under an agreement of sale between the lessors and the lessee which, however, did not materialise. Later on Moolchand sublet the land and the buildings to the applicant before us, namely, Sri theatres Limited, on an annual rent of Rs. 1350/ -. Moolchand did not pay the monthly rent as agreed upon in the lease, and consequently the Sens gave him notice on 7-8-1952 determining his teancy and requiring him to vacate the land. On 27-9-1943 the Sens sold the land and all their rights over it in favour of Brijmani Devi, plaintiff-opposite party in the present application. Brij Mani Devi gave a fresh notice to moolchand on 21-10-1944 in which she stated after reciting the facts and that Moolchand had paid rent for only one year to her predecessors-in-interest and no rent thereafter, that Moolchand had contravened the conditions embodied in the lease and that the tenancy had been terminated by means of the notice dated 7-8-1942. She went on to state that "your tenancy has been and is hereby terminated, and now yon have no right or title to remain a tenant of the land aforesaid", but demanding the arrears of rent (instead of damages) for the past six years amounting to Rs. 3780/- with interest, and also the removal of the constructions which had been made as provided under the lease. Moolchand did not comply with the request contained in the notice, whereupon Brijmani Devi filed the suit, which has given rise to these proceedings, on 30-11-1944. In the plaint it was stated that Moolchand had paid rent only for one year and did not pay anything else by way of rent and that accordingly the vendors of the plaintiff had sent a notice under the provisions of section 111 (G), Transfer of Property Act on 7-8-1942 terminating the tenancy, and that the plaintiff herself had sent a fresh notice to Moolchand on 21-10-1944 reminding him of the termination of the tenancy and terminating his tenancy under the provisions of Section 111 (G), transfer of Property Act. The first two reliefs claimed in the plaint were that:

(3.) MOOLCHAND filed a counter-suit for the specific performance of the contract of sale on the basis of the agreement which was alleged to have been entered into between the Sens and himself. The plaintiff was a party to the suit and it was alleged that the plaintiff had notice of the agreement. The applicant was not a party to that suit. He was a party, however, to the suit for ejectment. The trial Court dismissed the suit of Moolchand for specific performance, and its decree was confirmed by this Court. Moolchand has submitted to the decree and there is no longer any question of specific performance of the contract entered into between him and the sens. The trial Court decreed the plaintiff's suit for ejectment as against Moolchand and the present applicant. No express direction was, however, given in the decree about the plaintiff being entitled, if the defendant did not remove the materials within the time fixed by the Court, to have them removed through Court. Further, the decree did not specifically mention that the plaintiff was to obtain possession over the materials if they were not removed by the defendant within the time fixed. In the judgment it was ordered that the defendant was to remove the constructions within six months, but as in the judgment there was no direction as to what would happen if the defendant failed to comply with this direction, so the decree passed in pursuance of the judgment was also silent about it. Against this judgment and the decree there was an appeal to this Court both by Moolchand and by the present applicant. In the appeal one of the points urged was that the determination of the tenancy by means of the notice dated 7-8-1942 must be deemed to have been waived by the second notice dated 21-10-1944 and the fresh determination of the tenancy by means of that notice must be deemed to have been waived by the plaint in the present suit itself. The reasoning was that both in the second notice, as well as in the plaint of the present suit, the plaintiff had claimed not damages but rent for the period after the tenancy had been determined by the first notice, and that, therefore, she had accepted the plaintiff as a tenant for the period prior to the suit and had waived the forfeiture of tenancy. The Bench hearing the appeal repelled this contention and held that neither by means of the second notice, nor by means of the plaint, had the determination of tenancy been waived or cancelled. It was urged on behalf of the plaintiff that the Court had awarded to the plaintiff not only a decree for possession over the land, but also a decree for possession over the materials since the defendant had failed to remove the materials within the period fixed by the Court. This contention also was repelled by the Court and the decree of the Court below was in substance affirmed by this Court. But in two respects the decree passed by this Court differed from the decree of the Court below. Firstly, the ambiguity in the decree of the Court below was removed by inserting in the decree a clause to the effect that if the defendant failed to remove the materials within the time fixed the plaintiff was to have the liberty to have the materials removed through the agency of the Court. Secondly, the time fixed for the removal of the materials by the trial Court was enlarged by this court from six months from the date of the trial Court's decree to one year from the date of this court's decree. There was no other variation in the decree as passed by this Court. The valuation of the suit was Rs. 5025/-, including Rs. 4195/-as arrears of rent with interest.