MOHAMMED KUNJU ISHA BEEVI Vs. ELAYAKUNJU SHAHUL HAMEED
HIGH COURT OF KERALA
MOHAMMED KUNJU ISHA BEEVI
ELAYAKUNJU SHAHUL HAMEED
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(1.)Plaintiffs are the appellants. The suit was for recovery of possession with arrears of rent. According to the plaintiffs plaint A schedule Building belonging to them was leased out to the defendant on 8-10-1982 on a monthly rent of Rs.150/- as per Ext.A1 agreement. Plaint B schedule movables belong to the defendant. As per Ext.A1 agreement plaintiffs agreed to purchase B schedule movables for a consideration of Rs.9,610/-. On Ext.A1 date the defendant paid Rs.9,000/- to the plaintiffs as security for the rent arrangement. After the period of lease the plaintiffs were ready and willing to repay the advance and purchase B schedule movables on paying the sale consideration. The defendant did not agree to execute the sale deed in respect of plaint B schedule movables. He was also not willing to surrender vacant possession of A schedule building. Rent was paid only upto 12-9-1985. Due to the damages caused by the defendant to plaint A schedule building the plaintiffs have sustained a loss of Rs.2,000/-. Plaintiffs caused to send Ext. A2 lawyer's notice dated 8-10-1985 terminating the tenancy. Subsequently the suit was filed.
(2.)Defendant contended that his father Elayakunju had taken plaint A schedule building on rent from the original owner in 1957. He was conducting business in the building. B schedule movables were purchased by him for conducting tea-shop in the building. In 1982 when defendant's father was laid up defendant and his brother were conducting the business on his behalf. In October,1982 plaintiffs demanded to enhance the rent and to pay a sum of Rs. 10,000/- as advance. They also compelled the defendant to execute a rent deed in their favour. Since the defendant was not amenable to this, plaintiff's husband and their supporters trespassed into the building and finally they forced the defendant to sign Ext. A1 agreement. They have also received Rs.9,000/- from the defendant. By Ext.A1 no new tenancy was created. Defendant did not agree to sell the plaint B schedule movables. Defendant was forced to execute Ext.A1 as he was put to fear. Defendant's father was in possession of the building till his death on 21-8-1984. He was paying the enhanced rent also. After the death of defendant's father his right in A & B schedule items devolved on all of his legal representatives including the defendant. Defendant and his brother have been conducting the business for and on behalf of themselves and the other legal representatives. Suit is bad for non joinder of necessary parties. Ext.A1 agreement is invalid and unenforceable. Defendant has paid rent up to 12th September, 1985. Thereafter plaintiffs refused to receive the rent. After receiving the notice certain mediators intervened and the defendant and others agreed to enhance the rent to Rs. 175/- per month.
(3.)Exts. A1 to A4 series were produced On behalf of the plaintiffs. Second plaintiff was examined as P.W.1. Another witness was examined as P.W.2. The defendant produced Exts.B1 to B15. Defendant was examined as P.W.1. Another witness was examined as D.W.2. The Trial Court held that Ext.A1 was a genuine document and that the defendant alone is the tenant of plaint A schedule building. The Trial Court further held that the plaintiffs are not entitled to the relief of specific performance regarding the sale of plaint B schedule movables. The court further held that rent was in arrears from 13-9-1985 onwards. Recovery of arrears of rent on that basis was also allowed. Accordingly the suit was decreed in part and the plaintiffs were allowed to recover plaint A schedule building on repayment , Rs.9,000/- paid to them as security. Plaintiffs were also allowed to recover arrears of rent at the rate of Rs.150/- per month.
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