Madras High Court
Unknown vs M/S.A.R.Brothers on 13 June, 2013
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.6.2013
CORAM:
THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN
C.S.No.416 of 1997
P.T.Lee Chengalvaroya Naicker Trust,
Represented by its Board of Trustees
1) Mr.Justice K.M.Natarajan
2) Thiru N.Athimoolam
3) Thiru C.Jaganathan
4) Thiru M.Bala Krishnan
5) Thiru C.Ram Mohan Rao
6) Thiru V.Ramarajan
7) Dr.S.Jayachandran
8) Thiru M.K.Sampath
9) Thiru L.V.L.Madhavan
All having Office at No.2-3, E.V.K.Sampath Road,
Vepery, Chennai-600 007.
(Amended as per Order dated 20.4.2006 in
Application No.1755 of 2006) .. Plaintiff
Vs.
1. M/s.A.R.Brothers,
No.84 (New No.14),
Sydenhams Road, Chennai-600 112.
2. M/s.Aishma Customs Private
Bonded Warehouse
(All India Skin & Hide Tanners
& Merchants Association),
No.69, Maddox Road,
Choolai, Chennai-600 112.
3. M/s.Ramnath & Company,
No.69-C, Maddox Road,
Choolai, Chennai-600 112.
4. M/s.Lloyd Insulation (India) Ltd.,
No.28, Salai Street,
Chennai-600 112. .. Defendants
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Plaint filed under Order VII Rule 1 CPC, directing the defendants to deliver vacant possession of the suit property and more fully described in the schedule to the plaint and sketch attached to the plaint, to pay a sum of Rs.9,00,000/- being the damages for use and occupation of the suit properties from 9.1.1996 to 9.7.1997 till the date of filing of the suit, to pay damages for use and occupation at the rate of Rs.1 lakh per month or such other rate fixed by this Court from the date of the suit till the delivery of the suit property and to pay costs.
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For Plaintiff : Mrs.Chitra Sampath, S.C.
For
For Defendant-1 : Mr.V.Raghavachari
For Defendant-2 : Mr.Zafarullah Khan
For Defendant-3 : Mr.P.B.Balaji
For Defendant-4 : Mr.K.V.Rajan
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J U D G M E N T
Suit for recovery of possession, damages for use and occupation, both past and present and for costs.
2. I have heard Mrs.Chitra Sampath, learned Senior Counsel for the plaintiff, Mr.V.Raghavachari, learned counsel for the first defendant, Mr.Zafarullah Khan, learned counsel for the second defendant, Mr.P.B.Balaji, learned counsel for the third defendant and Mr.K.V.Rajan, learned counsel for the fourth defendant.
3. The averments contained in the plaint, in brief, are as follows:-
(i) The plaintiff is a Public Charitable Trust, founded by name P.T.Lee Chengalvaroya Naicker under a Will dated 04.9.1870 and a Codicil dated 30.4.1873.
(ii) The Trustees of the plaintiff-Trust are the Trustees of another Public Charitable Trust known as Pachaiyappa's Charities.
(iii) In December 1980, the management of the Pachaiyappa's Charities was taken over by the State of Tamil Nadu. Consequently, the management of the plaintiff-Trust was also taken over.
(iv) However, the Tamil Nadu Act, 11 of 1981, by which the Trust was taken over, was struck down by this Court in a writ petition and the same was confirmed by the Supreme Court.
(v) Now the plaintiff-Trust is managed by an Interim Committee appointed by this Court in C.S.No.242 of 1986, as per G.O.Ms.No.719, Education, Science and Technology Department, dated 07.10.1996.
(vi) The plaintiff-Trust is the absolute owner of the suit schedule property, measuring about 11.115 grounds bearing Door Nos.69, 69-A, 69-B and 69-C, Maddox Road and Door No.28, Salai Street, Choolai, Chennai-112.
(vii) By a Resolution dated 12.5.1975, the Trustees of Pachaiyappa's Charities decided to lease out the said property to one K.K.Mochu Mohamed, for a period of 20 years with a clause for renewal by a further period of 20 years.
(viii) On a Originating Summons taken out by the Trustees of Pachayappa's Charities in C.S.No.241 of 1975, this Court granted permission for the said lease on 12.12.1975. As per the approval granted by this Court, the Lessee was entitled to put up constructions on the land at his own cost, but, should hand over the same along with the land at the expiry of the period of lease.
(ix) In pursuance of the aforesaid order, a Deed of Lease was executed and registered on 09.01.1976, but the possession was handed over on 22.12.1975 itself.
(x) On the same day, the Lessee K.K.Kochu Mohamed, executed a Deed of Sub-Lease in favour of the first defendant for a period of 20 years with an option to renew the same for a further period of 20 years.
(xi) Since the original Lessee never paid any rent to the plaintiff from the inception of the lease and since the lease amounts sent by the first defendant were refused to be accepted by the plaintiff, the very transaction is invalid in law.
(xii) However, subsequently, by a Resolution dated 27.3.1977, the Board of Trustees resolved to accept the first defendant as the direct Lessee, on the basis of a letter written by the original Lessee, K.K.Kochu Mohamed.
(xiii) In pursuance of the same, an unregistered Agreement of Lease was entered into by the Trustees of the Pachaiyappa's Charities with the first defendant, on 08.7.1977.
(xiv) The said Agreement was also illegal, since the Trust never took the permission of this Court and the Agreement was also unregistered.
(xv) Unfortunately, the Trustees of the Board of Trustees did not take any steps to take possession of the property from the first defendant, despite the lease being illegal. Therefore, the Committee of management constituted under the Tamil Nadu Act 11 of 1981, terminated the tenancy by a legal notice dated 21.6.1995, on the basis that the initial period of 20 years was in any way coming to an end on 08.01.1996.
(xvi) But the first defendant sent a reply dated 07.7.1995, claiming protection under the provisions of the Tamil Nadu City Tenants Protection Act, on the ground that they had put up superstructure on the leasehold land.
(xvii) Thereafter, the plaintiff sent another legal notice dated 18.6.1996, calling upon the first defendant to deliver vacant possession and also to pay Rs.50,000/- per month towards damages for use and occupation, from 09.01.1996 onwards. The first defendant again sent a reply dated 02.7.1996 on the same lines as in the previous reply.
(xviii) While the second defendant is in possession of a godown with AC sheet roofing, measuring a plinth area of 3,309 sq. ft., marked as Plot No.1 in the sketch attached to the plaint, the third defendant is in possession of 3 godowns with AC sheet roofing, measuring a total plinth area of 11,766 sq. ft., marked as Plot Nos.2, 3 and 4 in the sketch attached to the plaint and the fourth defendant is in possession of a shed measuring a plinth area of 2,726 sq. ft., marked as Plot No.5 in the sketch attached to the plaint.
(xix) At the time when the first defendant got an unregistered Agreement of Lease executed on 08.7.1977, the property was not merely a vacant land, but had a construction already put up by the original Lessee, K.K.Kochu Mohamed. Therefore, the first defendant cannot claim to be a Lessee of a vacant site.
(xx) In any case, the first defendant is not in possession and hence, cannot claim the benefits of the Tamil Nadu City Tenants Protection Act. The entire suit property is in possession of the defendants 2 to 4, as shown in the sketch attached to the plaint.
(xxi) The plaintiff is a Public Charitable Trust and hence, exempt from the provisions of the Tamil Nadu Act 18 of 1960.
(xxii) The permission granted by this Court to grant a lease in favour of K.K. Kochu Mohamed contained a stipulation that upon the expiry of the period of lease, the Lessee should hand over both the land and the building to the plaintiff. Therefore, the first defendant cannot now make a claim on the basis of the superstructure. In any case, the lease in favour of the first defendant is invalid and hence, the first defendant cannot claim the benefits of a lawful Lessee.
4. On the basis of the above averments, the plaintiff has prayed for a decree (i) directing delivery of possession of the suit schedule property; (ii) directing the defendants to pay a sum of Rs.9.00 lakhs towards damages for use and occupation from 09.01.1996 to 09.7.1997; (iii) directing the defendants to pay future damages for use and occupation at the rate of Rs.1.00 lakh per month from the date of the suit till the date of delivery of the property.
5. The first defendant has filed a written statement. The averments contained in the written statement of the first defendant, can be summarised as follows:-
(i) A reading of the averments contained in the plaint would establish that the first defendant is a tenant, within the meaning of Section 2(4) of the Madras City Tenants Protection Act and hence, the first defendant has filed a separate application, seeking the benefits of Section 9.
(ii) The plaintiff is neither a Religious Institution nor a Religious Charity.
(iii) By the proceedings dated 27.3.1977, the plaintiff accepted the first defendant as a direct Lessee and entered into a Memorandum of Lease for a period of 20 years.
(iv) The first defendant has been regularly paying the rent and had also exercised a right of renewal.
(v) The challenge made to the validity of the lease after more than 20 years, is barred by limitation.
(vi) Since the permission of the Court had already been obtained, to lease out the property, no separate permission was required to lease the property in favour of the first defendant.
(vii) If the lease is invalid, then the first defendant is deemed to have perfected title by adverse possession, on account of 20 years of an uninterrupted possession.
(viii) The property was sublet by K.K.Kochu Mohamed on 09.01.1976 itself and hence, it is the first defendant who put up construction. K.K.Kochu Mohamed did not put up any construction.
(ix) Since the entire superstructure was put up by the first defendant, they are entitled to the benefits of the Madras City Tenants Protection Act. The clause relating to handing over of possession of the land along with superstructure upon the expiry of the period of lease, cannot defeat the statutory right conferred upon the first defendant and hence, the suit was liable to be dismissed with costs.
6. The second defendant has filed a written statement, contending inter alia:-
(i) The second defendant had entered into a valid Agreement with the first defendant and they had not violated any law or committed any breach of the contract.
(ii) The original Agreement that the first defendant had with the plaintiff, guarantees a lease for a period of 20 years with an option for renewal for a further period of 20 years.
(iii) There are no arrears of rent and hence, the second defendant is not liable for eviction.
(iv) The defendants are entitled to protection under the Madras City Tenants Protection Act.
7. The third defendant has filed a written statement, contending inter alia:-
(i) that the suit is barred by limitation, since the lease under challenge was of the year 1977;
(ii) that though the original lease is challenged as invalid, no relief of declaration is sought and hence, the suit is liable to be dismissed;
(iii) that this defendant became a tenant under the first defendant in 1983 and continues to be a tenant;
(iv) that the plaintiff, who was admittedly the owner of the land alone, cannot maintain the suit for possession, especially when the Lessee was permitted to put up a superstructure;
(v) that the defendants are entitled to protection under the Madras City Tenants Protection Act;
(vi) that this defendant is not liable for damages for use and occupation;
(vii) that in any case, this defendant is a statutory tenant entitled to protection by law; and
(viii) that the present suit is intended only to victimise the members of the previous Trust Board.
8. The fourth defendant has filed a written statement, contending inter ali:-
(i) that there is no privity of contract between the plaintiff and the fourth defendant;
(ii) that the lease in favour of K.K.Kochu Mohamed, was a valid one, as it was approved by Court;
(iii) that the plaintiff has allowed the lease to run for a full period of 20 years and hence, the lease cannot be assailed as invalid;
(iv) that even the notice of termination dated 21.6.1995, terminated the lease with effect from 08.01.1996, showing thereby that the first defendant was legally in possession of the property;
(v) that the fourth defendant is a lawful tenant inducted in 1981 and no communication was sent to this defendant before the filing of the suit;
(vi) that the fourth defendant is a statutory tenant entitled to protection under the Tamil Nadu Act 18 of 1960;
(vii) that there is no cause of action for the plaintiff against the fourth defendant;
(viii) that the claim for damages is fanciful and exaggerated; and
(ix) that the plaintiff is not entitled to claim any damages, either past or future from the fourth defendant.
9. On the above pleadings, the following issues were framed:-
(i) Whether the suit is barred by limitation ?
(ii) Whether the Lease Deed dated 08.7.1977 between the plaintiff-Trust and the first defendant, is void and unenforceable in law ?
(iii) Whether the fourth defendant has been lawfully inducted as tenant?
(iv) Whether the fourth defendant is a tenant protected under the Tamil Nadu Buildings (Lease and Rent Control) Act and entitled to any protection under such Act ?
(v) Whether the plaintiff is entitled for recovery ?
(vi) Whether the defendants or any of them are liable for past and future damages for use and occupation of the suit property ?
(vii) Whether the defendants are entitled for renewal of the lease ?
(viii) Whether the third defendant had handed over the premises to the first defendant and whether he has got any liability ?
(ix) To what relief the parties are entitled to ?
10. One Mr.M.K.Sampath, who was one of the Trustees of the plaintiff-Trust, was examined as the sole witness, on the side of the plaintiff. 19 documents were marked as Exx.P1 to P19 through PW1.
11. One Mr.Bipin Shah, who is a partner of the first defendant-firm, was examined as DW1. One Mr.Mohamed Hussain, an employee of the second defendant, was examined as DW1. Mr.S.Sivaraman, the Additional General Manager of the fourth defendant-Company, was examined as DW3. On the side of the defendants, a total of 13 documents were marked as Exx.D1 to D13.
Issue No.(i):
12.1. The first issue framed for consideration is as to whether the suit is barred by limitation. The plea of limitation is set up by the defendants, on the ground that the lease in favour of the first defendant was granted, even as per plaint averments, by K.K.Kochu Mohamed, the original Lessee, on 09.01.1976 itself. It is not as though the plaintiff is not aware of the grant of lease in favour of the first defendant. In paragraph 7 of the plaint, the plaintiff concedes that the first defendant started sending the rent from April 1976 and that initially the plaintiff refused to accept the rent. Subsequently, even according to the plaintiff, the first defendant sent a letter dated 26.3.1977, agreeing to pay a rent of Rs.850/- per month for a period of 10 years and a sum of Rs.1,000/- per month for another period of 10 years. This offer was accepted by the Board of Trustees, by a Resolution No.196 dated 27.3.1977. Following the Resolution, a Memorandum of Agreement of Lease was also entered into on 08.7.1977.
12.2. In the light of the above admitted facts, as revealed by the averments contained in paragraphs 7 and 8 of the plaint, it is contended by the defendants that the challenge to the leases are unsustainable, as they are made after a period of 20 years. Therefore, according to the defendants, the claim is barred by limitation.
12.3. It is true that any claim made by the plaintiff today (the date of the suit) that the lease either in favour of K.K.Kochu Mohamed or in favour of the first defendant, is illegal and null and void, is clearly barred by limitation. The plaintiff has not come up with an allegation of fraud and collusion between the erstwhile Trustees and Kochu Mohamed or the first defendant. This is perhaps the reason, why the plaintiff has not sought a prayer for a declaration that the lease in favour of Kochu Mohamed or the lease in favour of the first defendant, is null and void.
12.4. The suit is only for recovery of possession and for recovery of damages for use and occupation. Insofar as the past damages are concerned, the plaintiff has restricted their claim only to a period from the date of expiry of the original period of 20 years viz., 09.01.1996 upto the date of the suit viz., 09.7.1997.
12.5. Despite the fact that the plaintiff has pleaded that the lease was invalid and illegal, the plaintiff has not proceeded on the strength of such a plea. On the contrary, the plaintiff has carefully chosen to terminate the lease only with effect from to a date coinciding with the date of expiry of the first term of lease of 20 years. The first defendant does not deny the fact that the original lease in favour of Kochu Mohamed, for which sanction was accorded by this Court, was executed on 09.01.1976. Though possession had been handed over on 22.12.1975 itself, the lease commenced only under a registered Deed dated 09.01.1976 and the term fixed under the Deed was 20 years. The period of 20 years was to expire on 08.01.1996. Therefore, when the plaintiff chose to issue a legal notice terminating the tenancy, they did so, by a notice dated 21.6.1995. By the said notice, the lease was sought to be terminated only with effect from 08.01.1996, the date on which the lease itself was to expire.
12.6. In the light of the fact that the plaintiff had relied upon the very clause in the Deed of Lease and had chosen to terminate the lease only upon the expiry of the initial term, it is clear that the original claim with regard to the invalidity of the Lease Deed was given up by the plaintiff. Once it is found that the plaintiff had invoked the very clause in the Lease Deed to terminate the same with effect from a date on which the lease would have automatically expired, then the relief for recovery of possession and the relief for recovery of damages from a date beyond the initial tenure of lease, cannot be said to be barred by limitation. Therefore, the issue of limitation is answered in favour of the plaintiff.
Issue No.(ii):
13.1. The second issue is as to whether the Lease Deed dated 08.7.1977 between the plaintiff-Trust and the first defendant, is void and unenforceable in law.
13.2. The plaintiff has chosen to assail the Lease Deed dated 08.7.1977 as null and void, primarily on the ground that no permission was taken from this Court for the grant of such a lease, especially for a duration of 20 years. According to the plaintiff, the Board of Trustees of Pachaiyappa's Trust obtained sanction of this Court in C.S.No.241 of 1975 only for leasing out of the property in favour of K.K.Kochu Mohamed. But, he sublet the property to the first defendant and thereafter, the Board of Trustees passed a Resolution dated 27.3.1977 and executed an unregistered Agreement of Lease in favour of the first defendant on 08.7.1977. Therefore, the plaintiff assails the Lease Deed as null and void.
13.3. The claim of the plaintiff that the lease dated 08.7.1977 in favour of the first defendant is null and void, cannot be accepted for any number of reasons. An Agreement would be void, if it is hit by the provisions of Sections 19 and 20 of the Contract Act, 1872. The Agreement dated 08.7.1977 is not attacked by the plaintiff either on the ground of fraud or on the ground of misrepresentation or on the ground of coercion or undue influence. The only reason, as I could make out from the plaint, for the plaintiff assailing the Agreement is that the sanction of the Court was not taken for the lease. But, insofar as the Public Charitable Trusts are concerned, the law on the point is on a slippery slope. While the Indian Trusts Act contains a specific provision for obtaining the sanction of a Court for leasing out the property of a private Trust, there is no such stipulation inso far as Public Charitable Trusts are concerned. Section 92(f) of the Code of Civil Procedure, is only an enabling provision, which does not make a transaction entered into without the sanction of the Court, as null and void. Though the principles of equity and good conscience, on which Section 20 of the Indian Trusts Act is founded, could be invoked in appropriate cases, on the basis of the principles enunciated by the Supreme Court in K.T.M.T.M. Abdul Kayoom v. Commissioner of Income-Tax (AIR 1962 SC 680), the lease itself cannot be said to be void, especially after the expiry of the entire tenure of lease.
13.4. In any case, the attack of the plaintiff to the Lease Deed dated 08.7.1977, had lost its potency, in view of the fact that the plaintiff chose to terminate the lease only with effect from the expiry of the initial term of lease of 20 years. The very act of the plaintiff in issuing a legal notice on 18.6.1996, calling upon the first defendant to deliver vacant possession on 09.01.1996 shows that the attack to the Lease Deed was completely diluted and was retained just for the purpose of statistics on record. Subsequent to the Lease Deed dated 08.7.1977, the plaintiff has also been receiving the monthly rentals from the first defendant, at a rate mutually arrived at. This rate was actually higher than the rent for which this Court granted approval for a lease in favour of Kochu Mohamed. Therefore, the Lease Deed dated 08.7.1977, cannot be taken to be void and unenforceable. At the most, it could have been treated as voidable, had there been any lacunae in the manner in which the lease was granted. Hence the second issue is answered against the plaintiff.
Issue Nos.(iii) and (iv):
14.1. The third issue is as to whether the fourth defendant was lawfully inducted as a tenant. The fourth issue is whether the fourth defendant is a tenant protected under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Both these issues have now become mere issues of academic importance. On 23.4.2010, the learned counsel for the fourth defendant filed a set of documents. The first is a letter dated 25.3.2010, sent by the fourth defendant to the first defendant, informing the first defendant of the intention of the fourth defendant to vacate the property and hand over vacant possession by 31.3.2010. The second is a reply dated 31.3.2010, sent by the first defendant, demanding arrears of rent of Rs.68,53,880/- from the fourth defendant. The third document is a rejoinder dated 13.4.2010, sent by the fourth defendant, informing the first defendant that only a sum of Rs.7,56,586/-, was payable, after appropriating the advances paid and the property tax and other taxes paid by the fourth defendant. The next document is a letter dated 13.4.2010, by which, the fourth defendant sent the keys of the portion in their occupation along with Statement of Accounts to the first defendant. The next document is a receipt issued by the Post Office and the print out of the online information to the effect that the letter dated 13.4.2010, was despatched on 19.4.2010 and delivered to the first defendant on 21.4.2010.
14.2. The above set of correspondence was taken on record by me on 23.4.2010 and they were marked by consent as Exx.X1, X2 and X3 series.
14.3. On 29.4.2010, the learned counsel for the first defendant admitted that the first defendant had received (i) the letter of the fourth defendant dated 13.4.2010; (ii) the keys of the portion let out to the fourth defendant; and (iii) a cheque for Rs.7,56,586/- representing the admitted arrears of rent payable by the fourth defendant to the first defendant. However, the learned counsel for the first defendant submitted that they were received by his client under protest and that the quantum of arrears of rent as well as the issue of surrender of lease, were disputed.
14.4. It is clear from the events that had taken place during the pendency of the above suit that the fourth defendant had at least handed over possession to the first defendant. In any case, the first defendant is not in possession of the property anymore. Therefore, the question as to whether he was lawfully inducted or not and the question whether he is protected by the provisions of the Tamil Nadu Act 18 of 1960, are only of academic importance. The question whether he was lawfully inducted or not, may be relevant if the lease had been renewed with effect from 09.01.1997 in favour of the first defendant or at least if the lease had been terminated before the expiry of the initial term of 20 years. Since the lease was not renewed beyond the period of expiry of the initial term of 20 years, the question of lawful or unlawful induction as a tenant, is of no consequence.
14.5. I must also point out that I am not concerned here with any claim that the first defendant may have against the fourth defendant or the defence that the fourth defendant may have against such claim. Insofar as the claims of the plaintiff, both for recovery of possession and for damages for use and occupation, are concerned, it is only the first defendant, who is obliged to answer. Therefore, on issue Nos.(iii) and (iv), I hold that in view of the subsequent developments that had taken place in April 2010, there is no necessity to record any finding.
Issue No.(viii):
15.1. The eighth issue is whether the third defendant had handed over the premises to the first defendant and whether he has got any liability. This issue is framed in view of the claim made by the third defendant that the third defendant had already surrendered possession of the portion sublet to them in 1998 itself.
15.2. But, unfortunately, in the written statement filed by the third defendant, no such claim is made. In paragraphs 6 and 8 of the written statement filed by them, the third defendant has claimed to continue to be in possession of the portion. The third defendant had also claimed in paragraph 8 of their written statement to be entitled to the benefits of the Madras City Tenants Protection Act.
15.3. But, while cross-examining PW1, the counsel for the third defendant put a suggestion to PW1 that the third defendant surrendered possession to the first defendant as early as in 1998. Yet another suggestion was made that the third defendant vacated the premises and handed over possession to the first defendant in 1998.
15.4. But, unfortunately, the written statement of the third defendant was actually filed in April 2001. It does not contain a pleading to this effect. Moreover, the third defendant did not also go to the witness box. Therefore, there is neither a pleading from the third defendant in their written statement nor is there any evidence let in, on their behalf, to the effect that the third defendant vacated and handed over vacant possession in 1998 itself. In such circumstances, it is not known as to how an issue was framed to the effect as though the third defendant had already handed over possession to the first defendant. At least, if the first defendant had conceded this fact, it can be presumed that possession had been handed over. There is nothing even in the pleading or in the evidence of the first defendant that the third defendant had handed over the premises to the first defendant. Hence, I hold on issue No.8 that the third defendant has not pleaded or proved that they had handed over possession to the first defendant. Consequently, I also hold that the liability of the third defendant continues.
Issue Nos.(v) and (vii):
16.1. The fifth issue is as to whether the plaintiff is entitled to recovery of possession. But an answer to this issue depends upon the answer to the seventh issue viz., as to whether the defendants are entitled to renewal of the lease or not. If the defendants are entitled to a renewal of the lease, then the plaintiff may not be entitled to recovery, unless the plaintiff demonstrates that the lease had been validly terminated during the subsistence of the same. Therefore, I have taken up both the issues together for consideration.
16.2. But, the answer to the question whether the first defendant is entitled to renewal of the lease, has to be found out only from the terms of the lease. Therefore, it is necessary to make a reference to the set of correspondence that eventually led to the Lease Deed.
16.3. Ex.P1 is a letter dated 05.5.1975, sent by K.K.Kochu Mohamed to the Secretary of the Board of Trustees of Pachaiyappa's Charities. By the said letter, K.K.Kochu Mohamed offered to take on lease, a vacant land measuring 6-1/2 grounds, on a monthly rent of Rs.350/- for a period of 25 years with an option to renew for another period of 25 years. He also sought permission to sublet the property and also to put up constructions.
16.4. The offer made by K.K.Kochu Mohamed under Ex.P1 was taken up for consideration in a meeting of the Board of Trustees held on 12.5.1975. In the said meeting, a Resolution bearing No.23 was passed, agreeing to let out the land to K.K.Kochu Mohamed, and also to authorise the Secretary to move the Court for necessary permission. The copy of the Resolution is filed as Ex.P2. The copy of the judgment rendered on the Originating Summons in C.S.No.241 of 1975 dated 12.12.1975, filed as Ex.P3 shows that this Court accorded sanction to the plaintiff to lease 10-1/2 grounds of vacant land to K.K.Kochu Mohamed. The judgment states very clearly that the lease can be for a period of 20 years, with an option for renewal for a further period of 20 years on the terms and conditions agreed to and recorded in the Agreement dated 13.8.1975. It is relevant to note that before obtaining the sanction of this Court, an Agreement had already been entered into on 13.8.1975. This fact was taken note of by the learned Judge who ordered C.S.No.241 of 1975. A perusal of the judgment dated 12.12.1975 in C.S.No.241 of 1975 would show that the Court did not simply affix its seal of approval on the Agreement dated 13.8.1975. On the other hand, the Court direct the advertisements to be issued in two Tamil Dailies and in one English Daily. Offers were invited through those advertisements and upon finding that K.K.Kochu Mohamed's offer was the highest, this Court granted sanction by its judgment rendered in Ex.P3.
16.5. Ex.P4 is the certified copy of the registered Deed of Lease dated 09.01.1976, entered into by the Board of Trustees with K.K.Kochu Mohamed. The registered Deed of Lease, Ex.P4, prescribed the term of lease as 20 years. The Lease Deed also prescribed that the Lessee was entitled to an option of renewal for a further period of 20 years. The Lessee was made obliged to intimate his desire to exercise his option for renewal, by giving 3 months notice before the termination of the lease, offering his terms of renewal. The lease also contained a stipulation that if the Lessee committed default in performing his obligations under the Lease Deed, in spite of notice in writing, the Lessors shall be at liberty to terminate the lease.
16.6. The Lessee was also conferred with the right to sublet the premises or any part thereof, to any party. While granting permission to the Lessee to put up superstructure, it was made clear that upon the termination or expiry of the lease, the superstructure should also be handed over to the Lessor.
16.7. By virtue of the authorisation for sub-lease contained in the Deed of Lease (Ex.P4), the Lessee, K.K.Kochu Mohamed appears to have entered into a Deed of Sub lease on the very same day viz., 09.01.1976 in favour of the first defendant. The certified copy of this Deed of Sub-lease, is filed as Ex.P5. This Deed of Sub-lease also contained a stipulation that the sub-lease could also be renewed for a further period of 20 years on the expiry of the initial term of 20 years. But, both Exx.P4 and P5 made it clear that the renewal could be only on terms as may be mutually agreed upon between the parties. Other terms and conditions of the Deed of Sub-lease were similar to those contained in the Deed of lease.
16.8. Within 3 months of the execution of Exx.P4 and P5, the original Lessee K.K.Kochu Mohamed appears to have written a letter dated 27.4.1976, filed as Ex.P7, informing the plaintiff of the sub-lease made by him in favour of the first defendant. But, even before the said letter could reach the plaintiff, the first defendant appears to have sent a cheque for Rs.1,000/-, representing the rent for two months, along with a letter dated 15.4.1976. But the cheque was returned by the plaintiff by a letter dated 28.4.1976, filed as Ex.P6, on the ground that there was no lease by the plaintiff in favour of the first defendant.
16.9. Again on 13.9.1976, the original Lessee K.K.Kochu Mohamed appears to have sent a letter dated 13.9.1976, filed as Ex.P8, to the plaintiff, asking the plaintiff to do the needful, to enable him to sub-lease the property in favour of the first defendant. But this letter seems to have been sent by the original Lessee, after the Board of Trustees sent a communication on 19.8.1976 under Ex.P9, calling upon him to explain as to how he started putting up a construction, without obtaining the permission of the Trust Board. Thereafter, the original Lessee again sent a letter dated 07.01.1977 to the plaintiff, under Ex.P10, informing the plaintiff about the sub-lease and also requesting them to transfer the lease in favour of the Sub-Lessee. It is not known whether there was any reply to the said letter of the original Lessee. But the first defendant sent a letter dated 26.3.1977 filed as Ex.P11, claiming that in pursuance of a discussion they had with the President of the Trust Board, it was agreed to enhance the rent from Rs.500/- per month to Rs.850/- per month, for a period of 10 years from the date of completion of construction and to Rs.1,000/- per month for the rest of the period. It was also indicated in the said letter that if the first defendant exercised the right of renewal for a further period of 20 years, the lease amount could be fixed by mutual agreement. Alternatively, the first defendant suggested that the rent for the renewed period of lease could be fixed by a Team of Arbitrators.
16.10. The offer made by the first defendant by their letter Ex.P11, was placed before the Board of Trustees in their meeting held on 27.3.1977. By a Resolution bearing No.196, the Board agreed to accept the first defendant as direct Lessee subject to certain terms and conditions viz., (i) that the rent shall be enhanced from Rs.500/- per month to Rs.850/- per month for the first 10 years and to Rs.1,000/- per month for the next 10 years; and (ii) that if the Lessee exercised a right of renewal for a further period of 20 years, the lease amount could be fixed by mutual agreement. The obligation to pay property tax, urban land tax and other taxes were also imposed upon the Lessees, by the said Resolution. A copy of the Resolution passed by the Trust Board on 27.3.1977 is filed as Ex.P12. Interestingly, the date of commencement of the lease in favour of the first defendant is not indicated in the said Resolution. However, a careful reading of the Resolution would show that what was actually done by the Trust Board was only to approve the registered sub-lease given by K.K.Kochu Mohamed, in favour of the first defendant. The Resolution in Ex.P12 specifically uses the expression "the registered sub-lease given by K.K.Kochu Mohamed may be approved". Therefore, the only inference that is possible for me to draw is that the sub-lease granted by K.K.Kochu Mohamed in favour of the first defendant under the Deed dated 09.01.1976 under Ex.P4 actually got the seal of approval of the Board of Trustees. Hence, the period should be deemed to have commenced only on 09.01.1976, for the purpose of calculating the term of lease.
16.11. In pursuance of the Resolution passed on 27.3.1977 under Ex.P12, a Memorandum of Agreement was also entered into between the plaintiff and the first defendant. But, this is an unstamped and an unregistered document, though it was marked as Ex.P13.
16.12. When the initial term of lease of 20 years was nearing its expiry, the plaintiff sent a legal notice dated 21.6.1995. The copy of the same is filed as Ex.P14. It was stated in the notice that the plaintiff required the premises for the expansion of the High School and a Hostel, run by the plaintiff Trust and that therefore they do not wish to renew the lease for a further period. Consequently, the notice called upon the first defendant to vacate and hand over vacant possession by 09.01.1996, the date of expiry of the initial term of 20 years.
16.13. In response to the said notice, the first defendant sent a reply legal notice dated 07.7.1995, claiming protection under the Madras City Tenants Protection Act and also contending that there was no proper termination of tenancy. But, the plaintiff issued a rejoinder dated 18.6.1996, filed as Ex.P16, calling upon the first defendant to pay damages for use and occupation at the rate of Rs.50,000/- per month with effect from 09.01.1996.
16.14. In response to the rejoinder, the first defendant issued a legal reply dated 02.7.1996, filed as Ex.P17, not only claiming protection under the City Tenants Protection Act, but also denying any liability to pay damages as claimed by the plaintiff. This reply dated 02.7.1996 under Ex.P17 also contains a claim by the first defendant to the effect that the first defendant had already exercised an option to renew the lease. But, actually, neither the first reply Ex.P15 dated 07.7.1995, nor the reply Ex.P17 dated 02.7.1996, contain any reference to any letter under which the first defendant purportedly exercised an option for renewal. It may have to be recalled here that the right to exercise the option for renewal, was to be made, both as per Ex.P4 and as per Ex.P5, in issuing a 3 months notice before the termination. The date of termination (actual expiry) of the original lease was 08.01.1996. Therefore, the first defendant was obliged to issue a notice exercising the right of option for renewal, on or before 08.10.1995. Therefore, there was no occasion for the first defendant to have exercised the option 6 months in advance. In any case, Ex.P17 does not contain a specific reference to the date on which the option for renewal was exercised by the first defendant.
16.15. The first defendant has filed a set of about 12 documents as Exx.D1 to D13. Ex.D1 series is the set of rent receipts issued by the plaintiff-Trust. Exx.D2 and D3 are the letters dated 30.6.1992 and 30.4.1992 respectively, sent by the plaintiff-Trust, requesting the first defendant to surrender possession, much before the date of expiry of the lease, on the ground that the school run by the plaintiff got upgraded and that they needed the place for put up additional constructions. Exx.D4 and D5 are the letters dated 13.4.1989 and 05.8.1988 respectively, sent by the plaintiff to the first defendant, asking for copies of the receipts for payment of property tax and metro water tax. Ex.D7 is a copy of the reply given by the first defendant through their counsel on 27.6.1992, refusing to comply with the demand of the plaintiff for surrendering possession. In this legal reply dated 27.6.1992 (Ex.D7), the first defendant claimed that they had invested huge amount, in putting up constructions, in the hope that they would enjoy a lease for a period of 40 years. It was also claimed in the said legal reply that the first defendant thereby enforced and invoked the renewal clause. But, interestingly, this letter was at least 3 years prior to the date of expiry of the initial term of lease. More than that, this reply did not indicate the amount of rent that the first defendant was willing to pay for the renewed period of lease. It must be recalled that as per the original Deed of Sub-lease or even as per the Memorandum of Agreement entered into by the plaintiff with the first defendant, the right to renewal was subject to the terms and conditions mutually agreed upon. Only if the rent payable for the renewed term of lease could not be agreed to between the parties, a reference to arbitration was contemplated by these documents.
16.16. Ex.D8 is a letter dated 09.10.1995, purportedly sent by the first defendant to the plaintiff, exercising their option for renewal of the lease. The Postal Acknowledgement Card enclosed to this letter shows that it was delivered in the Office of the Pachayappa's Trust Board on 20.10.1995. The date on which the letter under Ex.D8 was actually despatched, could not be deciphered. The date assumes the significance in view of the fact that the right of renewal was to be exercised at least 3 months before the expiry of the initial term of lease. In other words, the date for exercising the option for renewal was to expire on 09.10.1995. Though Ex.D8 bears the date 09.10.1995, the Postal Acknowledgement Card does not show when it was registered. On the other hand, it shows the date of receipt of the same by the plaintiff as 20.10.1995.
16.17. Ex.D9 is the order of the Government in G.O.Ms.No.719, Education, Science and Technology, dated 07.10.1996, by which, the management of the plaintiff-Trust was handed over to a Committee appointed by the High Court. Ex.D10 is a Topography Sketch prepared by the first defendant, indicating the total extent of land and the different types of constructions standing thereon. Ex.D11 is the Planning Permit granted by the Corporation on 22.12.1979 for putting up constructions. Ex.D12 is a complaint filed by the Corporation of Chennai on the file of the XIX Metropolitan Magistrate, for putting up a construction without a license of the Corporation.
16.18. A careful perusal of the documents, filed on both sides, would establish (i) that the Lessee was conferred with the right to seek renewal; (ii) that the renewal was to be on fresh terms and considerations mutually agreed upon; and (iii) that if the rent payable for the renewed period of lease could not be mutually agreed upon, the parties could go before the Arbitrators. It is needless to point out that the right conferred upon the first defendant to seek renewal of the lease was not an absolute right, but a qualified one. It was a right coupled with a duty. The duty cast upon the first defendant was to initiate a discussion on the terms and conditions subject to to which the lease could be renewed. If it was impossible to arrive at an mutually acceptable rent, the first defendant should have taken other steps to have the rent fixed. But the first defendant did not do so. By this time, a period of about 18 months had passed from the date of expiry of the original period of lease. The above suit was filed on 07.7.1997. But even in the written statement, the first defendant did not make any attempt to have a rent fixed for the second term of 20 years. On the contrary, the first defendant claimed that they are entitled to protection under the Madras City Tenants Protection Act. Taking advantage of the nebulous claim made by the plaintiff that the original lease itself was illegal, the first defendant went to the extent of claiming adverse possession. Therefore, it is clear that neither before nor after the institution of the suit, the first defendant took any steps for arriving at the terms and conditions on which the lease could be renewed for a further period of 20 years from 09.01.1996. Therefore, I have no alternative but to hold that the first defendant miserably failed to enforce the right conferred upon them for seeking the renewal.
16.19. A right to seek renewal conferred upon the first defendant under the Deed of Lease, cannot be enforced simply by informing the plaintiff. According to the first defendant, even before the expiry of the original term of lease, the plaintiff sought re-possession. Though from 1992 till 1996, the first defendant has been writing letters seeking renewal, I do not think that the mere writing of letters could be taken to be an enforcement of the right of renewal. The first defendant could have at least filed a suit for specific performance or filed a counter claim in this very same suit, seeking the determination of terms and conditions on which the lease could be renewed for another term of 20 years. Their failure to do so dis-entitles the first defendant to have the lease renewed.
16.20. Even if the first defendant was entitled to have the lease renewed, such renewal was fixed only to be for a period of 20 more years from 09.01.1996. In other words, the first defendant would have been entitled to stay in the property till 08.01.2016. Now a period of more than 17 years, out of the said period of 20 years, has already lapsed. By simply holding on to the property and by merely staking a claim for the renewal, while defending a suit for possession, the first defendant cannot be said to have exercised their right of renewal in a manner fixed by the terms of the lease. Therefore, I hold on issue No.(vii) that the defendants are not entitled to renewal of the lease.
16.21. Once it is found that the defendants are not entitled to renewal of the lease, then their continued possession of the suit property, after the expiry of the original term of lease, does not have legal sanction. Therefore, the plaintiff is entitled for recovery of possession of the property.
16.22. It is impossible for me to resist the temptation to record the fact that the first defendant is today paying a monthly rent of Rs.850/- or Rs.1,000/- at the most to the plaintiff for a valuable property measuring an extent of about 10-1/2 grounds in the heart of the City of Chennai. But the first defendant has claimed through their counsel, on 23.4.2010, that the rental arrears from the fourth defendant alone was Rs.68,53,880/-. In other words, on a property belonging to a Public Charitable Trust, the first defendant has been collecting lakhs and lakhs of rupees as rent while paying a few hundreds as mittens to the plaintiff. Therefore, I hold on issue No.(v) that the plaintiff is entitled to a decree for recovery of possession.
Issue No.(vi):
17.1. The sixth issue arising for consideration is as to whether the defendants or any of them, are liable or not, for past and future damages for use and occupation.
17.2. The sixth issue has to be answered in two parts, the first touching on the question of liability of the defendants or any of them to pay damages for use and occupation and the second touching on the quantum of such damages, if at all they are liable to pay.
17.3. The first part of the sixth issue poses no difficulty, in view of my finding on Issue No.(vii) that the defendants were not entitled to renewal of the lease and also in view of my finding on Issue No.(v) that the plaintiff is entitled to recovery of possession. Once it is found that the defendants, especially the first defendant, was not entitled to the renewal of the lease with effect from 09.01.1996 for a further period of 20 years, the occupation of the defendants from the date of expiry of the original lease becomes unlawful. Therefore, as a corollary, the plaintiff is entitled to damages for use and occupation from persons who are in unlawful occupation.
17.4. The next limb of the first part of the sixth issue is as to whether all the defendants or any one or more of them are liable to pay damages for use and occupation. The evidence on record shows that the plaintiff did not let out the property to defendants 2 to 4. The defendants 2 to 4 came into possession of different portions of the property, by entering into separate agreements with the first defendant. This is why the first defendant had been collecting rents exclusively from the defendants 2 to 4. Therefore, there are actually two alternatives for me, namely, either to direct each of the defendants 2 to 4 to pay the damages in respect of the portions in their occupation or in the alternative, to direct the first defendant to pay for the entire property and leave it to them to work out their remedies against the defendants 2 to 4, with whom they had privity of contract.
17.5. I would prefer to choose the second alternative for a variety of reasons. The first and foremost is that the defendants 2 to 4 have been paying monthly rentals to the first defendant. One of them actually vacated and handed over possession of the portion in his occupation to the first defendant. Therefore, making the defendants 2 to 4 liable to pay damages would result in imposing an obligation twice on them and would also lead to multiplicity of proceeding, since defendants 2 to 4 may have to recover from the first defendant whatever they had already paid. Therefore, on the first component of the sixth issue, I hold that the plaintiff is entitled to recovery of damages for use and occupation from the first defendant and it is up to the first defendant to work out his remedies against the defendants 2 to 4. The first defendant cannot escape by contending that he was not in use and occupation, so as to pay damages. The possession of defendants 2 to 4, who claim under the first defendant, is virtually the possession of the first defendant. This is why the fourth defendant surrendered possession only to the first defendant, in open Court.
17.6. But, on the second question as to the quantum, there needs to be some discussion.
17.7. In paragraph 12 of the plaint, it is claimed that the second defendant is in possession of a godown with AC Sheet Roofing, measuring a plinth area of 3,309 sq. ft., marked as Plot No.1 in the plaint sketch. The third defendant is said to be in possession of 3 godowns with AC Sheet Roofing with a total plinth area of 11,766 sq. ft., marked as Plot Nos.2, 3 and 4 in the plaint sketch. The fourth defendant is alleged to be in possession of a Shed with a plinth area of 2,726 sq. ft., marked as Plot No.5 in the sketch. In the written statements filed by each one of the defendants, the specific averments contained in paragraph 12 of the plaint, are not dealt with at all. In paragraph 9 of the written statement filed by the first defendant, the first defendant has not chosen to deal with the measurements contained in paragraph 12 of the plaint. Similarly, the second defendant also did not choose to deal with paragraph 12 of the plaint in their written statement. The third defendant also did not deal specifically with the averments contained in paragraph 12 of the plaint. The same is the case with the first defendant.
17.8. Immediately after the institution of the suit in July 1997, an Advocate Commissioner was appointed by this Court on an application taken out by the plaintiff in A.No.2572 of 1997. The Advocate Commissioner inspected the suit property and filed a Report, along with a detailed sketch. In the Report, it is indicated that the second defendant was in possession of the godown with AC Sheet Roofing, measuring a plinth area of 3,309 sq. ft., at Door No.69. The third defendant was in possession of one godown, measuring a plinth area of 3,922 sq. ft., bearing Door No.69-C. The fourth defendant was in possession of 3 godowns bearing Door Nos.69-A, 69-B and 28, measuring a total plinth area of 10,570 sq. ft. The sketch filed by the Advocate Commissioner also indicates that a total plot area is 26,676 sq. ft., (approximately 11.115 grounds) and the total extent of land covered by the godown is 17,801 sq. ft. It is also recorded in the Report of the Commissioner that the first defendant, by themselves, were not occupying any portion of the suit property physically. They were having their Office elsewhere and they were only collecting rents from defendants 2 to 4.
17.9. I have already recorded a finding to the effect that the first defendant was not entitled to a renewal of the lease beyond 09.01.1996 and that they were obliged to surrender possession to the plaintiff. Even if the first defendant was entitled to a renewal of the lease beyond 09.01.1996, it should have been on fresh terms, either mutually agreed or fixed by Arbitrators. Both had not happened in this case and the defendants had continued to occupy the property. While the first defendant continued to pay a sum of Rs.850/- or Rs.1,000/- per month to the plaintiff, the defendants 2 to 4 had paid huge amounts as rent to the first defendant. Therefore, the first defendant is obliged to pay at least the rent that he had collected from the other defendants, by whatever name they are called.
17.10. The plaintiff has claimed Rs.50,000/- per month towards past damages for use and occupation and Rs.1.00 lakh per month towards future damages.
17.11. In the proof affidavit filed by the PW1 in lieu of chief examination, he claimed that the first defendant was collecting a sum of Rs.5 lakhs per month from defendants 2 to 4 and that therefore, the defendants should be directed to pay at least a sum of Rs.50,000/- per month towards past damages and Rs.1.00 lakh per month towards future damages. Interestingly, PW1 was not cross-examined on this aspect, either by the counsel for the first defendant or by the counsel for the third defendant. On behalf of the third defendant, only one question was put in cross-examination to PW1 and that question was about the estimated value of the suit property at Rs.4.00 crores. There was no question put in cross-examination to PW1, either on behalf of the first defendant or on behalf of the third defendant, about the quantum of damages, past or future.
17.12. However, the counsel for the fourth defendant cross-examined PW1 on this aspect. During cross-examination, PW1 claimed that the claim for damages was made on the basis of a calculation made by their Engineer by name Balamurugan in the year 1997. But, the Report given by the said Engineer was not filed by the plaintiff. A suggestion was put by the counsel for the fourth defendant to PW1 that there were no basis for the claim of future damages at Rs.1.00 lakh per month.
17.13. One Mr.Bipin Shah, a partner of the first defendant-firm, who was examined as DW1, filed a proof affidavit in lieu of chief-examination. In paragraph 8 of the proof affidavit, he simply stated that the property is not capable of yielding a rental income of Rs.1.00 lakh per month. But, unfortunately, he did not specifically say anywhere in the proof affidavit that the property is not even capable of fetching Rs.50,000/- per month. In other words, PW1 denied the claim for future damages at Rs.1.00 lakh per month, but did not dispute specifically the claim for past damages at Rs.50,000/- per month. Keeping this in mind, if we now come to the cross-examination of DW1, it is seen that he admitted, during cross-examination, that he was not aware of the market value of the property as of the year 1997 and that he had not verified the market value of the suit property at any point of time.
17.14. On behalf of the second defendant, one Mr.Mohamed Hazan was examined as DW2. In the proof affidavit filed by him in lieu of chief-examination, he did not speak about the claim of the plaintiff for damages, either past or future. During cross-examination, he agreed that the second defendant was originally paying a rent of Rs.4,000/- per month from 1981 and that they later started paying Rs.9,125/- per month.
17.15. The Additional General Manager of the fourth defendant, who was examined as DW3, merely stated in his proof affidavit that the fourth defendant was in authorised occupation and hence was not liable to pay damages for use and occupation. During cross-examination, he agreed that the fourth defendant was paying Rs.21,500/- as rent.
17.16. Though the plaintiff has not substantiated their prayer for past or future damages at the rate claimed by them, there is evidence on record at least to the following effect viz., (i) that the second defendant was paying Rs.9,125/- per month to the first defendant; and (ii) that the fourth defendant was paying Rs.21,500/- per month to the first defendant. These two facts are admitted by DW2 and DW3 during cross-examination.
17.17. As I had indicated elsewhere, the counsel for the fourth defendant filed a set of correspondence on 23.4.2010 to show that they had surrendered possession of the portion in their occupation to the first defendant, along with the arrears of rent to the tune of Rs.7,56,586/-. I had also recorded the fact that on 29.4.2010, the learned counsel for the first defendant admitted the handing over of keys and cheque by the fourth defendant, though he disputed the quantum of arrears and the surrender of lease.
17.18. The correspondence filed on 23.4.2010 by the learned counsel for the fourth defendant, were taken on record as Court exhibits, as there was no dispute at least with regard to the claims made by the fourth defendant. These documents are as follows:-
(i) A letter dated 25.3.2010, sent by the fourth defendant to the first defendant, marked as Ex.X1;
(ii) A reply dated 31.3.2010, sent by the first defendant to the fourth defendant, agreeing to accept possession subject to payment of arrears of rent of Rs.68,53,880/-, marked as Ex.X2; and
(iii) A letter dated 13.4.2010, sent by the fourth defendant to the first defendant, enclosing a cheque for Rs.7,56,586/- and the key along with a statement of account, marked as Ex.X3 series.
17.19. The statement of accounts sent along with Ex.X3 series, shows that the monthly rent paid by the fourth defendant to the first defendant was Rs.31,050/- per month, during the period 2007-2010.
17.20. Therefore, it is clear that the first defendant was collecting at least a rent of Rs.31,050/- per month from the fourth defendant and Rs.9,125/- per month from the second defendant. These two amounts total to Rs.40,175/-. The rent paid by the third defendant is not known. As pointed out earlier, the third defendant was in occupation of an area of 3,922 sq. ft., which was larger than the area occupied by the second defendant viz., 3,309 sq. ft. Therefore, the third defendant should have been paying a rent, at least Rs.10,000/- per month.
17.21. Therefore, it is clear that the first defendant was collecting a minimum of Rs.50,000/- per month from the other defendants as rent, while they were paying a meager amount of Rs.850/- per month, to the plaintiff.
17.22. Order XX of the Code of Civil Procedure contains the rules governing judgments and decrees in various types of suits. Rule 12 of Order XX prescribes the alternatives available to a Court while passing a decree for possession and mesne profits. While passing a decree for recovery of possession, the Court has the following alternatives, in so far as the question of rent or mesne profits is concerned:
(i) to pass a decree for possession of the property;
(ii) to pass a decree for the rents that have accrued on the property during the period prior to the institution of the suit;
(iii) to pass a decree for mesne profits; and
(iv) to direct an enquiry as to rent or mesne profits from the date of the institution of the suit till the date of delivery of possession.
17.23. Order XX, Rule 12 of the Code of Civil Procedure reads as follows:
"12. Decree for possession and mesne profits.-
(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree -
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until -
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be profits shall be passed in accordance with the result of such inquiry."
17.24. From a reading of Order XX, Rule 12, CPC, it is clear that the Code divides the claim for rent or mesne profits into three categories, namely,
(i) rents accruing prior to the date of the institution of the suit covered by clause (b) of sub-rule (1) of Rule 12 of Order XX;
(ii) mesne profits covered by clause (ba) of sub-rule (1) of Rule 12 of Order XX; and
(iii) rents or mesne profits payable from the date of institution of the suit covered by clause (c) of sub-rule (1) of Rule 12 of Order XX.
Though clause (b) of sub-rule (1) uses the expression "accrued prior to the institution of the suit" only in relation to the term "rents" and clause (ba) of sub-rule(1) does not use a similar expression in relation to the term "mesne profits", I think I may have to construe clause (ba) in such a manner as it is ejusdem generis with clause (b). This is in view of the fact that clause (c) which deals with the liability that accrues after the date of institution of the suit, uses both expressions "rents" and "mesne profits" together. Therefore, I have to take it that the provisions of Order XX, Rule 12, actually divide the claim for rents or mesne profits only into two categories, namely, the one arising up to the date of institution of the suit and the other arising after the date of institution of the suit.
17.25. Insofar as the first category is concerned, the Court is given an option either to determine then and there, the rents or mesne profits that had accrued up to the date of institution of the suit, or to relegate the same for a separate enquiry. But, insofar as the second category of cases are concerned, namely, those relating to rents or mesne profits, after the institution of the suit, the procedure to be followed is as prescribed under clause (c) of sub-rule (1) of Rule 12 of Order XX.
17.26. Keeping the above provisions in mind, if we look at the prayer in the suit, it is seen that the prayer for damages for use and occupation is split into two parts, namely, those relating to the period up to the date of institution of the suit and those relating to the period after the institution of the suit. Insofar as the claim up to the date of the institution of the suit is concerned, the damages claimed is for a period of 18 months from 09.01.1996 up to 09.7.1997, at the rate of Rs.50,000/- per month, aggregating to Rs.9.00 Lakhs. The claim for damages from the date of institution of the suit is Rs.1.00 Lakh per month.
17.27. Though the evidence on the side of the plaintiff is slender, insofar as the period prior to the institution of the suit is concerned, the defendants have failed to challenge even that slender evidence. I have found out, as seen from the discussion in paragraphs 17.16 to 17.21, that at least in 2010, the first defendant had collected about Rs.7,56,586/- from the fourth defendant alone towards arrears of rent and that the first defendant is collecting more than Rs.50,000/- per month from the other defendants, while paying a paltry amount of Rs.850/- per month to the plaintiff, which is a charitable Trust. Therefore, even while relegating the parties to an enquiry in terms of Order XX, Rule 12(1)(c), I am of the view that there can be a decree for past mesne profits, as per clause (ba) of Order XX, Rule 12(1) , CPC. Therefore, issue No.(vi) is answered accordingly.
Issue No.(ix):
18.1. The ninth and last issue that arise for consideration is as to what relief the parties are entitled to.
18.2. In view of my findings on all issues, especially issue Nos.(v) and (vi), the plaintiff is entitled to a decree for possession and a decree for mesne profits, up to the date of institution of the suit, at the rate of Rs.50,000/- per month, totalling to Rs.9.00 Lakhs. The determination of the quantum of mesne profits from the date of institution of the suit is relegated to a secondary enquiry in terms of Order XX, Rule 12(1)(c), CPC. But a provisional determination is made fixing the quantum at Rs.50,000/- per month from the date of the decree till the actual determination or the date of handing over possession, whichever is earlier, under Order XX, Rule 12(1)(c), CPC. The plaintiff is also entitled to costs.
19. In view of the above, the suit is decreed -
(i) directing the defendants to quit and deliver vacant possession of the suit schedule property, within one month, to the plaintiff;
(ii) directing the first defendant to pay to the plaintiff a sum of Rs.9.00 Lakhs towards mesne profits, for the period from 9.1.1996 up to 7.7.1997, the date of institution of the suit;
(iii) directing the first defendant to pay to the plaintiff a sum of Rs.50,000/- per month provisionally towards damages for use and occupation, from the date of this judgment, till the first defendant hands over possession or till a determination is made under Order XX, Rule 12(1)(c), CPC, subject however to the adjustment of the said amount against the mesne profits determined in the enquiry under Order XX, Rule 12(1)(c), CPC;
(iv) directing a separate enquiry into the question of damages for use and occupation from the date of institution of the suit, in terms of Order XX, Rule 12(1)(c), CPC;
(v) directing the first defendant to pay to the plaintiff, damages for use and occupation, at the rate determined in the enquiry under Order XX, Rule 12, CPC with effect from the date of this decree, subject however to the adjustment of the provisional amount fixed under Clause (iii) above; and
(vi) directing the first defendant to pay the costs of the suit to the plaintiff.
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