Varkey Chacko vs Mathai Varkey

Vithayathil, J.—The Defendant is the Appellant. The suit is for recovery of possession of the plaint property with arrears of rent. Plaint Item No. 1 which is two cents in extent was leased to the Defendant by the Plaintiff in 1113 with a direction to put up a building'' thereon. Plaint item No. 2 is the building put up by the Defendant. The lease was renewed from year to year. The last lease deed is Ex. A dated 2-7-1118. That also was for one year. The suit is based on Ex. A. The Plaintiff prayed for recovery of possession of plaint item No. 1 and for compelling the Defendant to remove item No. 2, building, or in the alternative to surrender the same on receipt, of its value which as fixed at Rs. 10. The Plaintiff also claimed arrears of rent and future rent at an enhanced rate. The Defendant denied the execution of Ex. A and contended that the agreement between the parties was that the lease arrangement should last for a period of 12 years, that the building was worth Rs. 500, that he was not bound to surrender possession of the same, and that the Plaintiff was not entitled to the enhanced rent claimed in the plaint. The trial Court found Ex. A was executed by the Defendant and that the value of the building was Rs. 20. The Defendant was however, allowed to remove the same. The learned Munsiff was of the view that the Building Rent Control Order of 1122 applied to the case and that therefore, no enhancement of could be allowed and that eviction also could be effected only under the provisions of that Order.

The Defendant appealed from this decree as A.S. 410 of 1123 and the Plaintiff filed A. S. No. 277 of 1124. The learned District Judge confirmed \\he finding of the trial Court with regard to the value of the building. It was also found that the Defendant executed Ex. A and that it was binding on him. After the appeal was filed the Travancore Prevention of Eviction Act, 22 of 1124, was passed and on the basis of that Act it was argued before the lower appellate Court that the Defendant was ''kudikidappukaran'' within the purview of that Act and he could not, therefore, be evicted from the holding. The learned District Judge directed that the question should be considered by the executing Court.

In the appeal filed by the Plaintiff it was contended that the trial Court went wrong in holding that the Building Rent Control Order of 1122 applied to the case. The learned Judge held that the Building Rent Control Order applied only to the renting of buildings and not to leasing of lands, that the present case was one of lease of land, and that, therefore, the Building Rent Control Order would not apply to it. The Plaintiff was, therefore, allowed to recover possession of the property in execution of the decree without reference to the Rent Control Officer.

The main ground urged in this appeal is that the lower appellate Court has gone wrong in holding that the Building Rent Control Order would not apply to the case. I do not think that there is any force in this contention. It is alleged in the plaint that only item No. 1 land was leased to the Defendant and that item No. 2 building was put up by the Defendant on the basis of the direction in the lease deed. With regard to item No. 2 building the prayer in the plaint is for, compelling the Defendant to remove the same or in the alternative to surrender it on receipt of its value. The Defendant''s case, also is that that item No. 2 building was put up by him. Neither party has a case that item No. 2 building was rented by the Plaintiff to the Defendant. It is true that it is stated in the lease deed, Ex. A, that the land and the building were given on rent to the Defendant. There are similar statements in the prior lease deeds, Exs. D, E and P. But it is also stated in all these lease deeds, that the building was put up by the Defendant. Therefore, the statement that the building also was rented to the Defendant must clearly be due to mistake. I, therefore, agree with the learned District Judge in his view that the Building Rent Control Order does not apply to the case.

It was also argued on behalf of the Appellant that the learned District Judge should have considered the question whether the Travancore Prevention of Eviction Act, 22 of 1124, applies to the case and that he has gone wrong in directing that the matter should be considered by the executing Court. I do not think that there is anything wrong in the learned Judge making this direction. If that Act applies to the case and if the Defendant is a ''kudikidappukaran'' coming within the purview of the Act he can be evicted only under the provisions of that Act although a decree for possession has been passed by the Court. The proviso to Section 1 of the Act and Section 4 make this clear.

It was argued for the Appellant that even if the Travancore Prevention of Eviction Act, 22 of 1124, would not apply to the case, the Holdings (Stay of Execution Proceedings) Act 8 of 1950, would apply and that in any case, the Defendant is not liable to be evicted. This also is a question that should be raised before the executing Court, and it is, therefore, not necessary to consider it at this stage.

I find no reason to interfere with the judgment and decree of the lower appellate Court. The appeal is therefore dismissed with costs.