PADMANABHA SHENOI Vs. KADIR MOIDEEN
HIGH COURT OF KERALA
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(1.) THE appellant had leased a house in Ernakulam to the respondent. That house was situated in a compound, which, from the judgment of the lower appellate court as well as from the commission report in the case, appears to have been enclosed on all sides by walls and buildings. Besides living there, the respondent was also carrying on in this house a petty business in making steel trunks. In the court yard on one side of the house, he put up a small temporary shed, adjacent to the house itself, for keeping tin sheets and other materials used in his business. It is also alleged that he is carrying on part of his work itself in this shed. Alleging that the shed was constructed without the consent and knowledge of the landlord and that in making it the respondent has been guilty of trespass, the appellant brought the suit which has given rise to this second appeal for recovery of possession of the site on which the shed has been built with past and future mesne profits at the rate of Rs. 2 per year. THE respondent contested the suit. According to him, in constructing the shed he has not committed any trespass and the appellant is not entitled to recover possession of the site or get any mesne profits as claimed by him. Negativing these contentions, the trial court gave a decree to the appellant for recovery of possession of the site with past and future mesne profits, subject to a direction that recovery of possession should be effected only after obtaining an order from the Rent Controller as required by the Rent control Act. On appeal by the defendant, who is the respondent here, the district Judge of Anjikaimal reversed the trial court's decree and dismissed the suit holding that there was no trespass at all and that the plaintiff was not entitled to recover possession of the site of the shed. THE plaintiff has, therefore, filed this second appeal.
(2.) IN my opinion, the second appeal is entirely frivolous and ought not to have been filed. According to the appellant's counsel, what had been leased by the appellant to the respondent was the house building alone, and every inch of ground in the compound outside the doors and walls of the house was in the possession of the landlord, and so the construction of any temporary shed in the court yard by the tenant without the consent of the landlord would be an act of trespass. I am unable to subscribe to this broad proposition. It is well known in this country that when a house with a court yard is rented out the lease would include both the house and the court yard, although there is no special reference to the court yard itself in the lease deed. The court yard is part of the premises of the house, and it has of necessity to go along with the house. It is also well known that tenants in this country often put up temporary sheds in the premises of the house for the sake of convenience and to meet urgent and special demands. Fuel sheds, cattle sheds and pandals for marriages and other ceremonies are some well known instances of temporary constructions by tenants in the premises of the house rented by them. Cases of temporary constructions in court yards by tenants for purposes of ordinary living also, known by the name of adichukoottupura, (Aamyowpokoq) are also not of infrequent occurrence in this country. IN all such cases the rule is that the tenant can put the premises to any lawful use which is not inconsistent with the purpose of the lease of the house itself and which will not injuriously affect or cause any damage to the house. By the temporary construction, the tenant should not cast any burden on the landlord or cause any damage to him. There is evidence in this case that the respondent was living and also carrying on his business in the house and that it was also known to the landlord that the house was to be used for both purposes. IN these circumstances, the construction of a temporary shed in the court yard for keeping materials used by the respondent in his business or even for carrying on a part of his work can by no means be said to be an act of trespass. The fact that the landlord was taking the yield of the trees in the compound would not mean that possession of the court yard immediately surrounding the house was with the landlord. There is no tree at all on the site of the shed, and by its construction, the landlord's right of enjoyment of the trees has not been interfered with at all. I hold the appeal to be entirely groundless and dismiss the same with costs. Dismissed.;
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