Decided on August 22,1955

OUSEPH Appellant
KURIAKOSE Respondents


- (1.) These two second appeals arise out of two suits O.S. Nos. 121 of 1952 and O.S. 458 of 1952 on the file of the Ernakulam District Munsiffs Court. The parties to the two suits are the same and the property involved in the two suits is also the same.
(2.) It is common ground that the defendants are residing in a small hut situated in Sy. No. 445/2 within the Ernakulam Municipality and which was rented out to them by the plaintiff. According to the plaintiff, the terms of the rental arrangement are those embodied in Ext. J the rent deed executed by defendants 1 and 2 and their son Panjikka who died prior to the institution of the present suits. The annual rent fixed under Ext. J is Rs. 6 payable in monthly instalments of 8 annas. Provision is also made for payment of kazcha in the shape of articles worth Rs. 3 every year. The rent deed or coolicharthu Ext. J is an unregistered document and it was executed on 1.10.1117. On the allegation that the defendants were attempting to demolish the hut that had thus been rented out to them and to reconstruct a new house in its place without the permission of the plaintiff, the latter instituted the suit O.S. 121 of 1952 praying for the issue of a permanent injunction restraining the defendants from renewing or reconstructing the hut occupied by them under the terms of Ext. J. The temporary injunction which was granted in favour of the plaintiff in the first instance was subsequently modified by permitting the defendants to attend to the urgent repairs to the floor of the hut and also to the thatching of the hut so that the same may be rendered habitable. Subject to these liberties, the temporary injunction restraining the defendants from reconstructing the hut, was confirmed. The above mentioned items of work were attended to by the defendants. But the plaintiff complained that the defendants, in the guise of repairing the hut, have in effect unauthorisedly reconstructed a new house. The plaintiff further contended that this act of the defendants has resulted in a termination of the lease arrangement under Ext. J. On such allegations the plaintiff instituted the suit O.S. 458 of 1952 for getting recovery of the house site after demolishing the house reconstructed by the defendants. Compensation was also claimed for the destruction of the old hut, besides the claim for arrears of rent as also future rent at the enhanced rate of Rs.3 per month.
(3.) Both the suits were resisted by the defendants who contended that they are not liable to surrender the house of the site. They maintained that the plaintiffs suits are not maintainable, that the lease arrangement under which they were put in possession of the hut, subsists, and that they have only effected the necessary repairs to the hut and have not reconstructed the same. The Trial Court repelled these contentions and decreed the suit O.S. 458 of 1952. Finding that the reconstruction of the hut has been completed, the other suit O.S. 121 of 1952 was dismissed for the reason that no purpose would be served by granting the permanent injunction as prayed for by the plaintiff. All the same the defendants were directed to pay the costs of the suit to the plaintiff. Against the decrees in these two suits the defendants filed A.S. Nos. 136 and 137 of 1954 in the Anjikaimal District Court. That court confirmed the decrees of the Trial Court and dismissed both the appeals. The present second appeals have therefore been preferred by the defendants.;

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