KILLUR RAMAKRISHNA RAO Vs. KOCHI MAHADEVA BHATTA

JUDGEMENT

(1.) The plaintiff is the appellant. This second appeal arises out of a suit by the plaintiff for the recovery of enhanced rent in the following circumstances.

(2.) In 1905 the plaintiff's father granted a permanent mulgeni lease under Ex. A, of certain lands to the defendants. The lease stipulated that the defendants were not to alienate their mulgeni interest in the lands. In case of alienation the rent payable was enhanced from Rs. 137-12-0 to Rs. 250. The restraint against alienation and the increase in rent in case of alienation are mentioned in the following provision of the lease deed; " In case we do not require the said plot, we shall hand it over to you only; but we shall have no right to alienate this mulgeni right to any one else by way of mortgage, arwar (usufructuary mortgage), sale, etc. If in contravention thereof we alienate it to others, we shall pay geni at Rs. 250 per year from that time". On 28 January, 1910, under Ex. B, the defendants sold their mulgeni right in the lands to their divided brother Ramachandra Bhatta and made over possession of the holding to him. Within a short time, on 8 March 1910, Ramachandra Bhatta reconveyed the mulgeni interest to the defendants under Ex. XV. It is admitted that though the lands were reconveyed they are still in the exclusive possession and enjoyment of Ramachandra Bhatta. Both the plaintiff and the plaintiff's father received, after alienation, the rent from the lands at the original rate. The plaintiff's case is that as soon as he came to know of the alienation he demanded rent at the enhanced rate and registered notices were exchanged between the parties. The District Munsif says that it is not proved on the evidence that till 1922 the plaintiff was aware of the alienation as per Ex. B. On this point the learned District Judge observes: I do not for a moment believe that plaintiff was ever ignorant of the temporary, alienation in 1910 or of the fact that Ramachandra Bhatta was actually cultivating the lands with the permission of the defendants.

(3.) The District Munsif also says that it is very likely that the defendants took Ex. XV, because the plaintiff's father threatened to enforce the clause for enhanced rent in the mulgeni. This is very probable; and this is also the opinion of the District Munsif. These latter facts were relied on in the first Court, only to prove that the plaintiff is estopped from enforcing the stipulation contained in Ex. A. This plea was specifically overruled by the District Munsif. The District Judge does not definitely say that the plaintiff is estopped from claiming the enhanced rent, but he says, referring to the conduct of the plaintiff, " such conduct is clearly inequitable and I decline to permit plaintiff to go back on a course of action and a policy which both his father and he himself have adopted since 1910". It is clear that no case of estoppel has been made out and in this Court the respondent's case was rightly not sought to be supported on the plea of estoppel. I may state here that the appellant has argued the case on the assumption that the plaintiff knew of the alienation when he received for some time the rent from the defendants. The question is whether in these circumstances the plaintiff is entitled to claim the enhanced rent asked for in the plaint.