AMINA ALIAS BEEPATHUMMA Vs. BAHMED BIN CHAYABBA

JUDGEMENT

(1.) The defendants are the appellants. The suit out of which this second appeal arises was instituted for recovery of possession of the suit property with building standing thereon together with profits, past and future.. The suit was decreed by the trial Court and was confirmed on appeal by the lower appellate Court. Hence this second appeal.

(2.) The plaintiff's predecessor-in-title let the suit property on 6 May, 1903, to one Hamed Beary, the predecessor of the defendant. The lessee died and the property came into the possession of his sister Kunhi Pathumma. The plaintiff's predecessor-in-title instituted a suit, O.S. No. 155 of 191 7 against Kunhi Pathumma and another for recovery of possession on the strength of the lease in favour of Hamed Beary. That suit was dismissed on the ground that there was no apportionment of rent. After the death of Kunhi Pathumma, the defendants who are her daughters continued in possession of the property. In 1930, the plaintiff's predecessor Akbar Khan issued a notice determining the tenancy and instituted the suit O.S. No. 198 of 1930 for recovery of possession of the property. That suit was compromised and a compromise decree was passed on 25 March, 1931. Under the compromise the plaintiff Akbar Khan had to pay a sum of Rs. 175 to the defendants for improvements and he undertook to deposit the amount into Court. The defendants were permitted to continue in possession of the property till 31 December, 1931 and they agreed to surrender the property with all the buildings after the expiry of that date, failing which liberty was given to the plaintiff to deposit the, amount of Rs. 175 in Court and recover possession of the property together with the buildings, and profits at the rate of Rs. 5 per mensem until delivery of possession by executing the decree itself. The parties also gave up their respective contentions in the suit. After this decree the plaintiff Akbar Khan did not pay or deposit the amount of Rs. 175 into Court and in 1935 there was a rent note, Ex. P-1, executed by the first defendant in favour of Akbar Khan.. The second defendant also continued in possession of the property; but she was. not a party to Ex. P-1. As the defendants did not surrender possession of the property notwithstanding the lawyer's notice dated 9 February, 1943, determining the tenancy under the rent bond, the plaintiff instituted the present suit for recovery of possession.

(3.) The defence to the suit was that the plaintiff had no subsisting title to the suit property and that the suit was barred by reason of the decree in O.S. No. 198: of 1930 and that the plaintiff's only remedy was to work out his rights by executing the decree in the suit and not to institute a separate suit. There was also an issue, relating to the rent or damages claimed by the plaintiff.