VISWANATHA IYER Vs. KUNJU EZHUTHASSAN
LAWS(KER)-1967-7-28
HIGH COURT OF KERALA
Decided on July 04,1967

VISWANATHA IYER Appellant
VERSUS
KUNJU EZHUTHASSAN Respondents

JUDGEMENT

- (1.) The appellant herein had instituted a suit O. S. 173/63 in the Munsiff's Court, Irinjalakuda seeking a permanent injunction restraining the respondents defendants from quarrying earth from the plaint schedule properties of which they were tenants under the appellant and also for recovery of damages in respect of the earth already removed by them unauthorisedly. The defendants contested the suit putting forward the plea that the removal of the earth was really an act of improvement and did not amount to waste in respect of which any injunction or damages could be claimed by the landlord, They denied the plaintiff's allegation that the quarrying of earth had been done by them for the purpose of manufacture of tiles and according to them the earth from the plaint property was totally unfit for the said purpose. They put forward the case that they had deepened the land as an act of reclamation and made the property better suited for paddy cultivation. On this ground they pleaded that the plaintiff was not entitled to either of the reliefs of injunction or damages claimed in the plaint.
(2.) The Trial Court, after a review of all the evidence adduced in the case found that the defendants had dug up and removed quantities of earth from the plaint property which is a paddy field and such removal had the effect of rendering the property unfit for the purpose for which it was let. The Munsiff found that the removal of the earth had been effected by the defendants for the purpose of manufacture of bricks in their tile factory and that the defendants' case that it was an act or reclamation was totally untrue. The Munsiff was of opinion that the defendants had clearly committed waste on the property and that the plaintiff was entitled to prevent recurrence of such waste He however, took the view that, in law, a landlord is not entitled during the currency of the lease to claim damages in respect of any act of waste committed on the holding by the tenant and in this view, he felt constrained to disallow the plaintiff's claim for damages. While so disallowing the claim for damages the Munsiff has however recorded a finding that the damages claimed in the plaint are not factually excessive. In the result, the Trial Court granted the plaintiff only a decree for injunction permanently restraining the defendants from taking up or removing earth from the plaint schedule properties and, dismissed the suit in respect of the claim for damages.
(3.) The plaintiff having appealed to the Subordinate Judge's Court, Irinjalakuda, the learned Subordinate Judge concurred with the Trial Court in its finding that the defendants had committed waste on the property by digging and removing the earth for purposes of manufacture of bricks. In fact, the learned Subordinate Judge has observed that this action on the part of the defendants constitutes wilful and wanton waste which would render the property permanently unfit for paddy cultivation. In regard to the maintainability of a claim for damages during the subsistence of the lease, the lower appellate court concurred with the view of the Trial Court that such a claim is not maintainable in law while the tenancy is subsisting and on this ground the lower appellate court also disallowed the plaintiff's claim for damages The. decree of the Trial Court was thus confirmed by the lower appellate court and hence this appeal by the plaintiff.;


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