MADANLAL AND ANOTHER Vs. GOVARDHANDAS AND ANOTHER

JUDGEMENT

(1.) This appeal arises out of an action for specific performance of an agreement of lease entered into on 10th March, 1964. The two defendants who are brothers agreed to take on a five year lease the premises bearing Municipal No. 5-1-715 situate at Bank Street, Hyderabad as also open space measuring 1150 Sq. feet adjacent to the building. The second defendant's tenancy is to relate to the open and whereas in so far as the 1st defendant is concerned it is in respect of the building which consists of three mulgies. In order to appreciate the relative contentions of the parties it is necessary to set out the facts that led to the agreement on which the suit is founded.

(2.) It is common ground that the 1st defendant was a tenant of the building for a long time and that the lease had its origin more than 20 years ago. On the assertion that the 1st defendant unlawfully occupied the open space though it was no part of the demised premises a suit had been launched by the lessor. The dispute between the parties was settled and a memorandum of compromise filed into Court. The basis of the settlement was that the 1st defendant was to be the tenant of the mulgi as well as the open with effect from 1st April, 1954 on a monthly rent of Rs. 375/-. At the request of the tenant the rent was subsequently reduced to Rs. 350/-.

(3.) The plaintiff alleges that in substitution for the agreement embodied in the compromise, the parties entered into a new one in or about first week of December, 1961, the result of which was to split the composite tenancy of the mulgies and the open land. It is pleaded by the plaintiff that the first defendant agreed to have a tenancy arrangement separating the open land from the mulgies. As a result of the novation the tenant agreed under two distinct agreements to hold the mulgies and the open land separately at Rs. 300/- and Rs. 50/- per month respectively. The new agreement was given effect to and separate receipts were being passed for the rents in respect of the two properties.