THOMMAN Vs. KUNJIKUTTY AMMA
HIGH COURT OF KERALA
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(1.) The question raised in the Second Appeal is whether the concurrent decisions of the two lower courts that from the date the tenancy was determined by a quit notice, the tenant defendant became liable for the mesne profits of the property. Apparently he had no valid reason to refuse to surrender. The rent fixed in the suit lease deed was Rs. 30/14/- per annum. By a notice dated 24.5.1124 the plaintiff demanded surrender or in the alternative that for the future the tenant should pay pattom at the rate of Rs.120/- per year. This demand was resisted by a reply notice and on 18.6.1124 the plaintiff brought the suit giving rise to the second appeal demanding surrender of the holding and mesne profits from the date of the quit notice at the rate of Rs. 120/- per year. The courts below besides decreeing surrender allowed the plaintiffs claim for mesne profits at the rate he claimed and in the second appeal the defendant contended that the plaintiff can only be allowed rent at the stipulated rate.
(2.) In the view we take as to how the second appeal should be disposed of it is unnecessary to consider whether the quantum of mesne profits fixed by the lower courts is correct. Perhaps in second appeal we are precluded from considering that question. Decided cases have held that when a tenant unlawfully withholds possession of the holding from the landlord after the tenancy is determined, the landlord can be allowed to recover mesne profits instead of the rent he was till then entitled to receive. That, however, is in lieu of the unlawful deprivation of the landlords right to the possession of his land. Soon after the present suit was brought Act XXI of 1124 (Travancore Holdings (Stay of Execution Proceedings) Act, 1124) came into force on 6th Meenam 1124 and S. 4 thereof enacted as follows:-
Notwithstanding any law to the contrary, proceedings in execution of a decree in a suit for the recovery of possession of a holding shall, so far as they relate to the delivery of possession of the holding, be stayed for a period of six months from the date of commencement of this Act:
Provided that the stay of such delivery of possession shall not preclude Our Courts from granting any other relief which the decree holder may be entitled to under the decree.
The specified period of 6 months has been kept extended by Ordinance II of 1125 and by Act VIII of 1950 with its various amendments. The last amending Act V of 1955 keeps the ban on recovery of possession of a holding in force till 5th October, 1955. No doubt commission of intentional and wilful acts of waste or non payment of rent that accrued due after the commencement of the Act (VIII of 1950) will entitle the court to order delivery - vide proviso (a) to S. 4 of Act VIII of 1950. Despite that we do not think the courts below were justified in allowing the plaintiff to recover mesne profits from the defendant. The Trial Courts decree was passed on 5th March, 1951 and the appellate courts on 31st December, 1951. On these dates, as now the ban against eviction remained in force. If even after a decree for surrender the landlord cannot recover possession unless the tenant entails forfeiture in terms of proviso (a) to S.4 of Act VIII of 1950, in a suit for eviction it would be illogical and unsound to make the tenant liable for mesne profits.
(3.) We therefore modify the concurrent decisions of the courts below by holding that the plaintiff will only be entitled to recover rent from the defendant at the specified rate of Rs. 30/14/- and not mesne profits. The tenancy legislation in contemplation will very likely contain some provisions for fixation of fair rent. If and when such provision is made it would be up to the landlord to take advantage of the same. It is almost certain he will lose the right to recover the land. For us to uphold the decisions impugned here would be to bring into existence a really anomalous and incongruous position.;
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