T KUPPUSWAMI PILLAI Vs. SMUHAMMAD KASIM SAHIB

JUDGEMENT

(1.) This is a case in which it is important to look at the plaint. The plaintiff entered into a lease with defendants Nos. 1 and 2 in 1907. These two persons are said to have since become insolvents and are not represented in second appeal. In 1913 defendants Nos. 1 and 2 sub- leased to the 3 defendant. The plaint sets out that defendants Nos. 1 and 2 were in enjoyment of the plaintiff's property as tenants and that the 3 defendant is in enjoyment of the premises as a partner of defendants Nos. 1 and 2. It may at once be said that this case of partnership was given up in both the lower Courts and was not pressed before me here. The plaint then goes on to ask for "losses on account of rent from January 1916 to 15 December 1918" when the plaintiff sold the property to a stranger. Paragraph 7 of the plaint runs as follows: The plaintiff claims relief in this suit for losses on account of rent and for damages for use and occupation at Rs. 50 per month.

(2.) The material issue settled in the case is, Is the plaintiff entitled to collect the rent of the suit building....

(3.) It is now contended before me that the plaintiff is entitled to succeed as against the 3 defendant on any one of the several grounds, (1) as a tenant of the plaintiff under Section 116 of the Transfer of Property Act; (2) as a trespasser on the premises of the plaintiff and, therefore, liable for damages for use and occupation. I have set out the only paragraph in the plaint in which damages for use and occupation are referred to except the prayer and there are no introductory averments whatever showing how the plaintiff would be entitled to damages for use and occupation against one or more of the defendants. The plaintiff, no doubt, had a cause of action against the 3 defendant; but the question is whether on the plaint as framed he could be granted any relief. The District Munsif held that he could, on the ground that the 3 defendant after the notice Ex. B (1) which will be referred to in detail in a moment, made himself directly responsible for the rent and continued in possession. The District Judge held that there was no contract express or implied by the 3 defendant, to become the tenant of the plaintiff and to pay rent. As stated above the 3 defendant is joined clearly in the plaint as a partner of defendants Nos. 1 and 2. The suit is not one in ejectment and he was nowhere treated as a trespasser. Therefore any damages for use and occupation against him as a trespasser were out of question. Can any damages for use and occupation or by way of rent be awarded against him as a tenant? That the plaintiff knew that the 3rd defendant was a sub-lessee is clear. No objection was raised to the sub-lease and the possession of the 3 defendant is said to have been more than once admitted by the plaintiff. Now, the plaintiff terminated the lease to defendants Nos. 1 and 2 by a notice. He sent Ex. B (1) to the 3 defendant specifically as sub-tenant enclosing the notice he had addressed to defendants Nos. 1 and 2 terminating their tenancy. Exhibit B (1) demands that the 3rd defendant should vacate the premises within a month of the receipt of the notice and concludes: In default of so vacating I write this, with a pure mind, that Rs. 75 per month will be collected for the said tenancy, along with the costs of the Court.