Andhra HC (Pre-Telangana)
Mr. A.G. Chandrasekhar vs Smt. Ramagiri Mahalaxmi on 16 August, 2002
Equivalent citations: 2002(5)ALD573, 2003 A I H C 4884, (2004) 1 RENCR 236, (2002) 5 ANDHLD 573, (2004) 2 RECCIVR 387, (2003) 1 ALLINDCAS 170 (AP)
JUDGMENT
1. This appeal is filed against the judgment and decree dated 29.11.2001 in A.S.No.434 of 2000 on the file of XII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, confirming the judgment dated 29.9.2000 in O.S.No.771 of 1992 on the file of 1st Senior Civil Judge, City Civil Court, Hyderabad. Defendant in the suit is the appellant. Plaintiff is the respondent in this appeal.
2. Necessary facts for the disposal of this appeal are as follows:
The appellant is a tenant in possession of the plaint schedule property belonging to the respondent from 19.9.1983 onwards under an unregistered lease deed executed by him in favour of the respondent. Monthly rent agreed between the parties is Rs.1,100=00 per month. There is escalation in the monthly rent every year at the rate of Rs.50=00 per month. There is exchange of notices before suit between the parties. On 11.10.1991 the respondent issued a quit notice Ex.A.6 under Section 106 of Transfer of Property Act terminating the tenancy in favour of the appellant by the end of tenancy month of April, 1992 and calling upon the appellant to handover possession of the plaint schedule premises on the next date of the termination. The period of lease is seven years. The said quit notice was issued after expiry of the lease term agreed between the parties. The appellant issued a reply notice dated 25.4.1992 marked as Ex.A.10 taking the plea that he is a statutory tenant as per the provisions of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 and therefore he is not liable to be evicted from the plaint schedule property. Before issuing the said reply notice Ex.A.10, the appellant issued another notice dated 6.12.1991 marked as Ex.B.12 styling it as an interim reply notice to the quit notice Ex.A.6 issued by the respondent. In this interim reply notice Ex.B.12, he merely informed the respondent that he deposited rent at the rate of Rs.1500=00 in the bank account of the respondent for the period from 1.10.1991 to 30.9.1992 through cheque No.497368 dated 5.10.1991 and called upon her to send a stamped receipt for the same. In fact the said amount was not deposited in the bank account of the respondent - plaintiff. On the other hand, it was deposited by the appellant in the bank account of the husband of the respondent. He made such a deposit long after the husband of the respondent - plaintiff closing the said account in the bank concerned. Further, discussion on this aspect will be made at a later part of this judgment. On 14.7.1992 the respondent filed the suit seeking four reliefs. The reliefs are (i) to evict the defendant from the suit property and deliver possession of the same to the plaintiff; (ii) to direct the defendant to pay a sum of Rs.25,000=00 by way of damages; (iii) to direct the defendant to pay past mesne profits (future mesne profits) at the rate of Rs.2500=00 per month from the date of the suit till the defendant delivers vacant possession to the plaintiff; and (iv) to direct the defendant to pay the plaintiff past mesne profits of Rs.6250=00 for the period from 1.5.1992 to 15.7.1992. According to the respondent the appellant caused damage to the plaint schedule property. On that ground the respondent claimed damages of Rs.25,000=00 from the appellant. The appellant filed a written statement denying the allegations in the plaint. He pleaded that the quit notice Ex.A.6 is not valid and enforceable, he is a statutory tenant under the provisions of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960, he did not cause any damage to the plaint schedule property and he is not liable to pay past or future mesne profits to the plaintiff. He did not dispute that he is a tenant of the respondent in the plaint schedule property. He did not also dispute that as per the understanding between the parties, the period of lease is seven years. On the basis of the pleadings of both the parties, the trial court settled appropriate issues. Both parties adduced oral and documentary evidence before the trial court. On a consideration of the entire evidence adduced by both the parties, the trial court opined that the tenancy is month to month, the tenancy month starts on 19th of every month, the quit notice Ex.A.6 was issued terminating the tenancy during the middle of the tenancy month and therefore the quit notice is not valid and enforceable. It also held that there is no proof to show that the appellant caused damages to the plaint schedule property. Accordingly it refused to grant the damages of Rs.25,000=00 sought for by the respondent. It did not grant the past mesne profits sought for by the respondent. Regarding the future mesne profits, the respondent claimed the damages at the rate of Rs.2500=00 per month. The trial court fixed the quantum of damages regarding future mesne profits at the rate of Rs.1550=00 per month. It accordingly passed a decree for mesne profits at the rate of Rs.1550=00 per month in favour of the respondents. Regarding the main relief of eviction, after holding that the quit notice Ex.A.6 is not valid and enforceable, on issue No.(2) relating to the delivery of possession of the suit property to the respondent - plaintiff, the trial court held that as lease term agreed between the parties expired by efflux of time, the respondent is entitled to evict the appellant from the possession of the suit property without issuing quit notice under Section 106 of Transfer of Property Act. Aggrieved by the judgment and decree passed by the trial court, the defendant preferred an appeal in A.S.No.434 of 2000 on the file of the lower Appellate Court. Aggrieved by the quantum of future mesne profits fixed at the rate of Rs.1550=00 per month, the respondent - plaintiff preferred an appeal in A.S.No.39 of 2001 in the lower Appellate Court. The lower Appellate Court disposed of both the appeals by common judgment dated 29.11.2001. The lower Appellate Court dismissed both the appeals. Aggrieved by the judgment and decree in A.S.No.434 of 2000, the defendant preferred the present appeal. The respondent - plaintiff did not prefer any appeal against the dismissal of her appeal in A.S.No.39 of 2001. She did not also prefer any cross-objections in the present appeal.
3. In this second appeal, in the memorandum of grounds the appellant mentioned in all six grounds calling all of them as substantial questions of law to be determined in the second appeal. At the time of admission of this second appeal, the learned admission Judge treated ground No.1 alone as substantial question of law to be determined in this second appeal. The said substantial question of law, as framed in the memorandum of grounds of appeal, reads as follows:
In view of the un-registered lease deed being invalid on account of execution for a period of 7 years, whether the lease got determined by efflux of time under Section 111 of Transfer of Property Act, in spite of the appellant carrying on its manufacturing activities even after the expiry of the lease period by continuing the practice of depositing the enhanced rent in the bank account of the plaintiff, thus, the tenancy thereafter being month to month, as held by Apex Court in AIR 2000 SC 1696 and ?
4. POINT: Two decisions of the Supreme Court in SATISH CHAND Vs. GOVARDHAN DAS, and in SAMIR MUKHERJEE Vs. DAVINDER K. BAJAJ, form part of the above substantial question of law posed by the appellant in his memorandum of appeal. In that question reference is made by mistake to the decision of the Supreme Court reported in A.I.R. 2000 SC 1696. The said decision relates entirely to a criminal case. The correct decision is the decision . It is cited by learned counsel for appellant. I will consider those two decisions and other decisions cited by both the parties later. It is the main contention of the appellant that as the lease deed is an unregistered document, its contents cannot be looked into to ascertain the date of expiry of the lease period agreed between the parties, that the quit notice Ex.A.6 is invalid, that the respondent accepted the rent deposited by the appellant after issuing the notice Ex.A.6, it amounts to waiver of the notice Ex.A.6 and suit is not maintainable without issuing fresh notice under Section 106 of Transfer of Property Act. On the other hand, it is the contention of the learned counsel for the respondent that the lease term expired by efflux of time and no quit notice as required under Section 106 of Transfer of Property Act is required for filing a suit for eviction of the tenant and therefore the appellant is liable to be evicted from the suit property. It is also his contention that the appellant did not take the plea that he is the tenant holding over after expiry of the lease period and without such a plea being taken in the written statement, the suit for eviction without issuing a notice under Section 106 of Transfer of Property Act is maintainable. At this juncture itself it is necessary to point out that it is not disputed before me that the quit notice Ex.A.6 issued is not proper and valid. The respondent proceeded on the ground that even without any quit notice under Section 106 of Transfer of Property Act, the appellant is liable to be evicted from the suit property.
5. I would now consider without looking into the contents of the written unregistered lease document whether there is any period of expiry of the lease agreed between the parties and if so what is the said date. There is correspondence by exchange of notices between the parties before filing the suit. In all the notices issued by the respondent - plaintiff, it is clearly stated that the lease commenced from 19.9.1983 and the period of lease is seven years and thus the period of lease expired by 19.9.1990. In various reply notices issued by the appellant, he did not dispute that the period of lease expired by 19.9.1990. In the plaint also there is a specific averment regarding the period of expiry of the lease. This averment in the plaint is not controverted in any manner by the appellant in his written statement as well as additional written statement filed by him. Plaintiff examined her son as P.W.1 in the suit. His evidence regarding the expiry of the lease period is also to the same effect. It was not challenged during his cross-examination. Appellant gave evidence as D.W.1. He did not depose that no period of lease was agreed upon between the parties. In his cross-examination he categorically deposed that "the original lease was obtained for seven years". At another stage in his cross-examination he deposed as "The lease period came to be expired by 1990. No document of extension of lease is executed by the landlord in our favour". In view of these circumstances it is evident that the period of lease expired by efflux of time during September, 1990.
6. In support of his contention that suit for ejectment without fresh notice under Section 106 of Transfer of Property Act is not maintainable, lot of reliance was placed by the learned counsel for the appellant on the decision of the Supreme Court in Satish Chand Vs. Govardhan Das (1 supra). The facts of this case are as follows:
By a registered indenture of lease dated 8.1.1965 a piece of open land was leased out to the first defendant for a period of five years. First defendant put up a superstructure and carried on business of running a hotel in the demised premises. After expiry of the lease period of five years, the parties entered into an unregistered draft lease agreement renewing the lease for a further period of nine years with effect from 1.6.1971. Before expiry of the renewed period of lease, on 1.2.1976 the plaintiffs served a notice upon the defendants determining the tenancy on the ground of forfeiture under Section 111 (g) of the Transfer of Property Act complaining of breach of the terms of the lease. Thereafter they laid a suit for ejectment on 27.3.1976. The defendants contested the suit inter alia taking the plea that they were tenants holding over from month to month under Section 116 of Transfer of Property Act and as there had been no determination of the lease by service of notice under Section 106 of the Act, the suit as framed was not maintainable. The trial court and the High Court, on the basis of the plea allegedly taken by the defendants in their written statement that there was a renewal of initial lease by a further term of nine years, held that the plaintiffs were entitled to the reliefs claimed for. The High Court as well as the trial court held that under Order VII Rule 7 C.P.C., it was incumbent upon the courts to take notice of the altered circumstances since the institution of the suit and mould the relief accordingly in order to shorten the litigation and to do complete justice between the parties. They held that the lease was determined by efflux of time under Section 111 (a) of Transfer of Property Act and no notice was required under Section 106 of the Act for determination of the lease. In para 5 of its judgment, the Supreme Court observed that the High Court and the courts below wrongly termed that the plaintiffs were entitled to the reliefs claimed for under Order VII Rule 7 C.P.C., on the alleged admission of the defendants in their written statement that the renewed term under the unregistered draft lease agreement was for a period of nine years. The Supreme Court held that upon that wrongful assumption, the courts have held that the lease was determined by efflux of time under Section 111 (a) of the Transfer of Property Act and no notice of termination of the tenancy under Section 106 was required. In para 6 of its judgment the Supreme Court observed as follows:
" The defendants have nowhere admitted that the lease was for a specific term of nine years. On the contrary, they have pleaded that they were tenants holding over under Section 116 of the Transfer of Property Act".
In para 7 of its judgment the Supreme Court further observed as follows:
" It was definitely wrong on the part of the High Court to have proceeded on the assumption that the lease was for a specific term of nine years and therefore the lease stood determined by efflux of time under Section 111(a) of the Transfer of Property Act and that the defendants were tenants at sufferance and no quit notice was required".
7. In my considered opinion the principle of law stated in the above decision is not applicable to the facts of the present appeal. In that case, as pointed out by the Supreme Court, the defendants therein have nowhere admitted that the lease was for a specific term of nine years. In the present case the facts mentioned in the preceding para clearly indicate that the appellant-defendant admitted that the period of lease is seven years from September, 1983 .
8. There is another reason also to come to the conclusion that the above decision has no application to the facts of the present appeal. In that case the defendants therein took the definite plea that they were tenants holding over in the suit property. In the present case the appellant - defendant never took the plea at any stage of the proceedings that he is a tenant holding over. On the other hand, he took the plea that he is a statutory tenant under the provisions of A.P. Buildings (Lease, Rent & Eviction) Control Act and therefore he is not liable to be evicted from the suit property. He is not a statutory tenant under the provisions of the said Act. The said Act applies to the buildings whose monthly rent is less than Rs.1,000=00. In the present case even on the date of commencement of the lease the monthly rent is Rs.1100=00. So, it is more than Rs.1,000=00. Therefore, the appellant is not entitled for protection under the provisions of the said Act. He is not a statutory tenant under the provisions of any other enactment. Further, he did not take the plea that he is a tenant holding over.
9. In this regard the learned counsel for the respondent relied upon some decisions of this High Court . In the decision in B. CHITRA RAMACHANDRNDAS Vs. NATIONAL REMOTE SENSING AGENCY, AIR 2001 AP 20 the facts are that in the written statement filed by the defendant there is no specific plea that the defendant was a tenant holding over within the meaning of Section 116 of the Transfer of Property Act. It was pleaded that as per the understanding the defendant was at liberty to continue in the premises till he gets alternative accommodation for shifting its establishment and the plaintiffs are not entitled to require the defendant to vacate the suit premises. In that case there was a quit notice. The defendant pleaded that it was not a valid quit notice. Following a decision of the Supreme Court in Santi Devi Vs. Amal Kumar (AIR 1981 SC 1550), the learned single Judge of this court in the above decision held that he is inclined to agree with the contention of the learned counsel for the plaintiffs that no quit notice under Section 106 of the Transfer of Property Act is really required as the lease expired by efflux of time.
10. A similar view was taken by another learned single Judge of this court in a decision in FARHAT ALI (DIED) PER L.Rs Vs. SAJID ALI, . It was held in the above decision as follows:
" In a case of lease for a specific period the tenancy comes to an end by efflux of time and if the tenant is continuing in possession as a tenant holding over, there should be a specific plea that he is continuing as tenant holding over within the meaning of Section 116 of the Act and therefore, the notice under Section 106 of the Act is necessary. On the basis of the pleadings in both the suits, it is clear that the appellants have set up the title in the plaint schedule property. They have not taken any plea that they are tenants holding over and therefore a notice under Section 106 of the Act is necessary. It is no doubt true that a sentence is added stating that no notice was issued terminating the tenancy in the written statement. It is true that the respondent stated that the appellant is continuing as a tenant. The fact that the respondent in the plaint has stated that the appellant is continuing as a tenant does not automatically give him the benefit of the rights as tenant holding over. He should approach the Court with a specific plea and there should be an issue on the plea and the appellant should adduce evidence in support of the said plea. Since there is no specific plea, the contention of the learned counsel that notwithstanding the efflux of time, he is entitled for the status of a tenant holding over, therefore, a notice is necessary cannot be sustained".
In the present appeal, in the written statement, appellant did not take the plea that he is a tenant holding over, he did not seek an issue on this aspect, adduce any evidence and prove that he is a tenant holding over.
11. It is the contention of the appellant that under cheque dated 5.10.1991 he paid rent from 1.10.1991 to 30.9.1992 at the rate of Rs.1500=00 per month, the respondent after issuing quit notice Ex.A.6 encashed the said cheque and the said conduct amounts to waiver of the notice Ex.A.6 and the suit is not maintainable for eviction. I have stated supra that the said cheque was not issued in favour of the respondent. It was issued in the name of the husband of the respondent. The appellant did not personally handover the cheque to the respondent's husband. He did not also send the cheque to the respondent's husband. On the other hand, he himself presented that cheque in the bank of the respondent's husband to be credited into the bank account of the respondent's husband. Ex.B.11 is the bank slip obtained by the appellant for depositing the amount of Rs.18,000/- on 5.10.1991 in the bank account of R. Venkata Ramaiah, husband of the respondent. Subsequently on 6.12.1991, in interim reply Ex.B.12 to the notice Ex.A.6, the appellant informed the respondent about depositing the cheque. In that notice he stated falsely that he deposited the cheque creditable to the account of the respondent. By the time of the said deposit by way of cheque by the appellant, the account of the husband of the respondent was already closed. This fact is clear from the letter addressed by the respondent's husband (Ex.A.12) on 13.5.1992 to the Branch Manager of the concerned bank and also the letter dated 28.5.1992 (Ex.A.13) written by the concerned bank to the husband of the respondent. It is not the case of appellant that by the date of issuance of said cheque by him after expiry of the lease period the respondent or the husband of the respondent ever treated the appellant as their tenant and in pursuance of that recognition of the appellant as a tenant, respondent encashed the cheque. The sole fact that the respondent subsequently realised the amount covered by the cheque issued by the appellant does not amount that respondent treated the appellant as her tenant. It is already stated supra, it is not the plea of the appellant at any stage of the proceedings that he is a tenant holding over the suit property. The remittance through cheque by the appellant after expiry of the lease period is a payment made in a stealthily manner. It is not a direct payment to the landlady under any circumstances. Perhaps in a stealthily manner the appellant wanted to gain wrongful advantage to him by remitting the amount by way of cheque curiously into the non-existing account of the respondent's husband. In this regard the learned counsel for the respondent relied upon a Division Bench decision of this court in R.V. BHUPAL PRASAD Vs. SALEHA BEGUM, . After the expiry of the period of lease by efflux of time, the landlord filed petitions in rent control proceedings seeking a direction to the respondent to deposit the arrears of rent. He accepted the amounts from the tenant in respect of the said building. This court held in the above decision that it does not amount to acceptance of rent from a lessee within the meaning of Section 116 of Transfer of Property Act. It was held that such acceptance or demanding rent by the landlord does not create a right in favour of the tenant to claim fresh tenancy. The Division Bench noticed that the tenant before filing his additional written statement in the suit did not make any assertion that he became a tenant holding over because of the landlord filing a petition seeking a direction to the tenant to deposit the rent. In the present appeal, it is already noticed, that at no stage of the eviction proceedings the appellant claimed that he is a tenant holding over. Regarding waiver of notice Ex.A.6, the Division Bench held in the above decision that to claim waiver there must be consensus ad idem between the parties for continuance of lease. I have stated supra that it is the evidence of the appellant in his cross-examination there was no agreement between the parties to extend the lease period after efflux of time.
12. The other decision covered by the substantial question of law is the decision in Samir Mukherjee Vs. Davinder K. Bajaj (2 supra). It was held in this decision by the Supreme Court that if the lease is not created by a registered written lease, lease cannot be deemed to be from year to year terminable by six months notice as per the provisions of Section 106 of Transfer of Property Act and fifteen days notice terminating tenancy is valid. This principle of law is of no help to the appellant in the present case. It was already noticed that as the period of lease expired by efflux of time, no quit notice under Section 106 of Transfer of Property Act is necessary. Therefore, this decision is of no assistance to the appellant.
13. The learned counsel for the respondent relied upon a decision of the Supreme Court in M. VIJAYALAXMI Vs. G. GOVERDHAN REDDY, 1996 (3) ALT 32 (SC). In this case a quit notice under Section 106 of Transfer of Property Act was issued. It was found to be not a valid notice. The Supreme Court held that the tenant cannot be treated as a tenant holding over after expiry of term of lease in view of the quit notice under Section 106 of Transfer of Property Act. The Supreme Court held that landlord is entitled to seek possession of the premises after tenancy comes to an end by efflux of time even if notice issued is not valid under Section 106 of Transfer of Property Act. In my considered opinion this decision is helpful to the respondent from another angle also. Though the quit notice in that case was held to be not valid, the Supreme Court observed at the end of para 3 of its judgment as follows:
" The respondent cannot be treated as a tenant holding over in view of the express indication given by the appellant by his notice dated January 28, 1985 that he did not propose to continue the tenancy of the respondent".
In the present case also even though the quit notice Ex.A.6 is not a valid notice, the said notice is to be treated as an express indication given by the respondent that she did not propose to continue the tenancy of the appellant. Therefore, from the tenor and purpose of the notice Ex.A.6, he cannot be treated as a tenant holding over the suit property on the date of suit.
14. The learned counsel for the appellant relied upon a decision of the Supreme Court in SIKKIM SUBBA ASSOCIATES Vs. STATE OF SIKKIM, . I have carefully considered the facts of the above decision and the principles of law laid down in the above decision. They are not of any assistance to the appellant in the present case.
15. From a consideration of various decisions of the Supreme Court and this court as well as provisions of law incorporated in Sections 106, 107, 110 and 116 of the Transfer of Property Act, the following principles of law emerge. In cases where a lease is to be made only by a registered instrument as envisaged under Section 107 of the Transfer of Property Act, if the lease document is an unregistered document, its terms cannot be looked into to ascertain the period of lease agreed upon. In such cases, de hors the contents of the unregistered lease document from the material placed before the Court, the period of lease agreed upon between the parties can be ascertained. If the period of lease is ascertained from the evidence on record, de hors the contents of the unregistered lease document, lease of immoveable property becomes determined by efflux of time limited thereby as per the agreement between the lessor and lessee. In such a case after the lease expired by efflux of time, without issuing any quit notice under Section 106 of the Transfer of Property Act, the lessor is entitled to file a suit to evict the lessee from the possession of the demised immoveable property. If the period of lease de hors the contents of unregistered lease document cannot be ascertained, the lessor without issuing a prior quit notice under Section 106 of the Transfer of Property Act cannot maintain a suit for eviction of the lessee. Where a lease is evidenced by an unregistered document, even if the lease is for agricultural or manufacturing purposes, the lease can be validly determined by issuing a quit notice terminating the lease by fifteen days notice expiring with the end of the month of the tenancy. In a situation where the lease document is an unregistered lease document, even after the period of lease agreed upon between the parties is ascertained de hors the contents of the unregistered lease document, the suit for eviction of the lessee after the lease gets terminated by efflux of time, is not maintainable if the lessee is a tenant holding over the demised premises after the expiry of the period of lease. However, in such cases the lessee has to take a definite plea in his written statement in the suit that he is a tenant holding over and adduce sufficient evidence to prove that he is a tenant holding over the demised premises after the expiry of the lease period. In the absence of such a plea followed by sufficient evidence, he cannot resist a suit for eviction without issuing a prior proper and valid quit notice under Section 106 of the Transfer of Property Act.
16. Keeping in view the above principles of law, the present appeal is to be disposed. The foregoing discussion clearly indicated that though the lease document is an unregistered lease document, de hors the contents of unregistered document, there is sufficient evidence showing that the lease term expired by September, 1990. There is no plea followed by proof by the appellant that he is a tenant holding over the suit property. In spite of the fact that the quit notice Ex.A.6 issued by the respondent is not proper and valid, the appellant - tenant is liable to be evicted from the possession of the suit property without issuing a fresh proper and valid quit notice under Section 106 of the Transfer of Property Act. The stealthily payment of the future rent made by the appellant into the closed bank account of the husband of the respondent - plaintiff and its withdrawal later by the respondent - plaintiff can never be treated as an act of the respondent assenting to the appellant's continuing in possession of the suit property as her tenant. Therefore, the judgment and decree ordering the eviction of the appellant from possession of the suit property need not be set aside.
17. Reliance was also placed on a decision of the Supreme Court in NEELAKANTAN Vs. MALLIKA BEGUM, . It was held by the Supreme Court in the above decision that a finding of fact as recorded by the lower courts may be set aside by the second appellate court where finding has no basis in any legal evidence on record, or is based on a misreading of evidence, or suffers from any legal infirmity which materially prejudices the case of one of the parties or is perverse. In the present appeal, it is not shown to me that any finding of fact recorded by the trial court or the first appellate court is not based on legal evidence on record, or is a result of a misreading of evidence, or suffers from any legal infirmity or is perverse. This decision is also of no assistance to the appellant in the present circumstances of the case.
18. It is contended by the learned counsel for the appellant that the lower appellate court did not frame relevant points for consideration in the appeal as required under Order XLI Rule 31 C.P.C., and therefore the judgment of the lower appellate court is liable to be set aside and the appeal is to be remitted back to the lower appellate court. In this regard, reliance was placed on a judgment of Madras High Court in MUNIVEL Vs. MUNUSAMY MUDALIAR & OTHERS, 1996 - 2 LW 574. It is true that the lower appellate court did not frame appropriate point for determination in the appeal. However, in the circumstances of the present case there is no need to set aside the judgment of the lower appellate court and remit back the appeal to the lower appellate court for its fresh consideration. The lower appellate court discussed in the course of its judgment the evidence and the principles of law relating to eviction of the tenant in the absence of a registered lease deed.
That is the important question to be decided by the lower appellate court. Therefore, though appropriate point for determination as such is not framed by the lower appellate court as the discussion related to the crucial dispute between the parties in the appeal, I am not inclined to set aside the appeal and remit back the appeal to the lower appellate court.
19. While going through the judgment of the trial court as well as the lower appellate court I noticed one important error. The respondent - plaintiff sought for a decree for future mesne profits.
The plaintiff asked for future mesne profits from 1.5.1992. It is already noticed that the appellant deposited Rs.18,000=00 in the bank towards rent payable upto 30.9.1992. It was later appropriated by the respondent. The trial court as well as the lower appellate court did not take into consideration the said payment and appropriation while granting future mesne profits decree. It is also in evidence that advance by way of security deposit was also paid by the appellant at the time of taking the suit premises on lease. This amount is to be deducted from the total amount payable by the appellant to the respondent. It appears that some other payments were made during pendency of suit. I, therefore, decide to rectify this error apparent on the face of record. The appellant did not question this finding either at the time of filing the appeal before the District Judge or the second appeal before this court. However, I decide to modify the future mesne profits decree granted by the trial court. At this juncture it is necessary to point out another important fact. The trial court fixed the quantum of future mesne profits at the rate of Rs.1550=00 per month. This quantum was confirmed by the lower appellate court in the independent appeal filed by the respondent against the decree of the trial court. This is a finding of fact recorded by the two courts below. This concurrent fact finding need not be set aside in this appeal. Therefore, I want to modify the decree of the trial court and direct the respondent to file a separate petition for ascertainment of future mesne profits from the date of the suit till the date of the appellant - defendant handing over vacant possession of the suit property to the respondent. At the time of ascertainment of future mesne profits, the trial court shall proceed on the basis that the quantum of future mesne profits is at the rate of Rs.1550=00 per month. It shall take into consideration the various payments received by the respondent during the pendency of the suit and then give credit to those payments as well as advance amount (security deposit) of Rs.5500=00 at the time of passing future mesne profits decree in a separate application to be filed by the respondent - plaintiff. Except to that extent, I do not see any grounds to interfere with the judgment passed by the lower appellate court.
20. In the result, the appeal is dismissed with costs confirming the decrees of the courts below except regarding modification of the future mesne profits decree granted by the trial court. The respondent - plaintiff shall file a separate application for ascertainment of future mesne profits before the trial court. At the time of ascertainment of future mesne profits, the trial court shall proceed on the basis that the quantum of future mesne profits is at the rate of Rs.1550=00 per month. It shall give credit to the various payments received by the respondent during the pendency of the suit as well as advance amount (security deposit) of Rs.5500=00 at the time of passing future mesne profits decree. Appellant is granted four months time from today for vacating the suit premises and delivering vacant possession to the plaintiff.