Kerala High Court
Madhavan Nair vs Ankan And Ors. on 11 January, 1961
Equivalent citations: AIR1962KER55, AIR 1962 KERALA 55, 1961 KER LJ 305 1961 KER LT 704, 1961 KER LT 704
JUDGMENT M. Madhavan Nair, J.
1. The 9th defendant is the appellant. The decree in the case was for recovery of the property with arrears of rent at 16 1/2 parahs (local) of paddy per annum till date of deposit of compensation for improvements found due to the defendant, and thereafter mesne profits at the rate of Rs. 180/- per annum. Compensation for defendants' improvements having been deposited on 7-2-1955, the plaintiff claimed mesne profits from that date. The 9th defendant objected to the claim on the ground that all proceedings in delivery of possession of a leasehold having been stayed by statute his possession was not wrongful and as such the plaintiff is not entitled to mesne profits from him.
2. The effect of the statute prohibiting eviction of the tenants, whether in execution of the decree or otherwise, is statutorily to continue the tenancy even though the lease has been determined. This is so even if the determination of the lease by the decree of court was before the statute prohibiting resumption of the holding came into force. In such cases the effect of the provision debarring recovery of the property from the lessee by the landlord is to revive the tenancy as between them. Such a new tenancy is aptly called a "statutory tenancy". Award of mesne profits is virtually one mode of enforcement of the right to possession, the principle underlying the award being that whatever the person in wrongful possession has collected from the property, has to be accounted for to the person entitled to the possession of the property. It follows that unless possession is wrongful there cannot be any liability for mesne profits. When a court decrees mesne profits, it is declaring the possession of the person concerned as wrongful; when such possession is subsequently declared by statute to be rightful the decree becomes otiose, and the award of mesne profits becomes ineffective and unenforceable for the period the statute has superseded the decree. Eviction having been prohibited by statute, the continuance of the defendant-tenant in possession has to be held lawful and therefore the decree for mesne profits has to be held abrogated by virtue of the statute for the period the statute remains in force. According to the decree in this case the lease did not come to an end on the date of the decree hut was to continue till deposit of compensation for improvements by the plaintiff : and even before it was deposited, the statute prohibiting eviction of lessees in execution of decrees had come into force. As such the contractual lease in this case has been continued without any breek in the statutory tenancy created by Act VIII of 1950 and 1 of 1957. The respondent decree-holder is therefore not entitled to any mesne profits for arty period so far from the appellant.
3. Second Appeal is therefore allowed and the orders of the Courts below are reversed. No costs.