ANANTHANARAYANA IYER Vs. MUHAMMAD KUNJU
HIGH COURT OF KERALA
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(1.)The 1st defendant is the appellant. The suit was for recovery of a plot of land with a building thereon with mesne profits and damages. The property belonged to the 1st defendant. He sold it under Ext. A for Rs. 1,500/- on 20-2-1123 to the plaintiff. The plaintiff's case was that at the time of the sale, defendants 2 to 5 were in occupation of the building as tenants, and that the 1st defendant had agreed to give actual possession of the plot and the building to him and as the 1st defendant did not give actual possession he was liable in damages for breach of the covenant to give vacant possession. The 1st defendant contended, that the plaintiff inspected the property before purchasing it, that he knew that there were tenants in possession of the building, that it was with the knowledge that the tenants were in occupation that he purchased the property, that his only obligation was to give such possession as the nature of property admits at the time of the sale and that he was not liable for damages for breach of any express or implied covenant. The 2nd defendant contended that the 1st defendant's predecessor in interest had agreed to sell 15 cents of land together with the building to him and that he was in occupation of the property by virtue of that contract.
(2.)The court below came to the conclusion that the plaintiff was entitled to recover damages from the 1st defendant on the ground that the 1st defendant had the obligation to give khas possession to the plaintiff and that he had not fulfilled that obligation as defendants 2 to 5 continued to be in possession of the building and were taking the income from the land. Therefore the court below passed a decree for recovery of possession in favour of the plaintiff with mesne profits from defendants 1 to 5 at the rate of Rs. 60/- per annum from the date of the plaint upto the date of surrender of possession of the property or for three years from the date of the decree whichever event happened first.
(3.)The 1st defendant appellant contended before me that the decree of the court below is wrong on the ground that he had not undertaken to give vacant possession of the land or of the building to the plaintiff. Ext. A would make it clear that the purchaser was put in possession of the property. On the same day as Ext. A plaintiff executed a mortgage in favour of a stranger and in the mortgage deed also it has been stated that the plaintiff was possession of the property. The main submission on behalf of the 1st defendant was that the plaintiff had inspected the property and the building and had known that tenants were in occupation of the building and the land and therefore the plaintiff was entitled only to get symbolic possession of the land and building. The evidence of the plaintiff is clear that he had notice that tenants were in occupation of the land and building. Counsel for the appellant relied on the ruling reported in Subba Rao v. Vasudeva Sastry (AIR 1956 AP 113) for the proposition that even in the case of a purchaser of a building if he has notice of the tenancy the seller need give only symbolic possession. In that case it was held by Viswanatha Sastry, J. that under S.55(1)(f) of the T.P. Act, a seller is bound to give, on being so required, to the buyer or his nominee such possession of the property as its nature admits and that possession does not necessarily mean personal occupation but might include a landlord's possession if the property sold is in the occupation of a tenant to the knowledge of the buyer. It was further held that the contract of sale might, however, provide for delivery of vacant possession of the property even though it is in the occupation of the tenant to the knowledge of the buyer.
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