Kannu Pillai v. Bhaskara Menon — 1951 DIGILAW 110 (KER)

Judgment :- 1. The plaintiff in O.S. No. 73/1120 of the District Munsiff's Court of Cochin is the appellant in this case. The suit is for eviction and for arrears of rent on the basis of Ext. H lease deed dated 20.6.1111 executed by the 1st defendant in favour of one Valiaveetil Velayudhan Pillai and for damages for waste alleged to have been committed in the property. The plaint property belonged to Velayudhan Pillai, his brothers Sankara Pillai, Kunjan Pillai, Unni Pillai and Appu Pillai and his deceased brother's son Ramakrishna Pillai. The plaintiff acquired the rights of Ramakrishna Pillai and Unni Pillai under Ext. A dated 15.9.1109 and Ext. E dated 20.5.1119. The suit was filed on behalf of all the co-owners. The 2nd defendant is the father of the 1st defendant and he is alleged to be in possession of the property. Defendants 3, 4,12 and 13 are alleged to be kudikidappukars in the property under the 1st defendant. The rights of Velayudhan Pillai, Sankara Pillai and Appu Pillai have devolved on defendants 5, 6 and 7. Defendants 8 to 11 have together acquired the rights of Kunjan Pillai. 2. Defendants 1, 2, 4, 6, 8 to 11 and 12 contested the suit. The 1st defendant contended that the assignments in favour of the plaintiff were benami, that the suit is not maintainable, that the arrears claimed in the plaint are not due and that he has committed no waste in the property. The 2nd defendant contended that he was not a necessary party to the suit and that he should be given his costs. The 4th defendant contended that he had no right in the property and that he was unnecessarily impleaded in the suit. Defendants 6 and 8 to 11 contended that the suit was not maintainable and that they were opposed to the plaintiff recovering possession of the property on their behalf. The 12th defendant contended that the house in which he was living had been put up prior to the date of the lease deed and that he was entitled to the value thereof. The trial court dismissed the suit with costs on the ground that it is not maintainable. The appeal filed by the plaintiff was also dismissed. Hence this second appeal. The trial court dismissed the suit with costs on the ground that it is not maintainable. The appeal filed by the plaintiff was also dismissed. Hence this second appeal. The questions to be decided in this second appeal are: (i) whether the suit is maintainable; (ii) whether the plaintiff is entitled to get the arrears of rent claimed in the plaint; (iii) whether the last defendant is liable to pay any amount as damages for waste; and (iv) what should be the order as to costs. 3. With regard to the first point, the plaint property admittedly belonged to Velayudhan Pillai, his four brothers and the son of a deceased brother. The property was originally outstanding on lease under Ext. G lease-deed dated 28.6.1099 executed by one Meethain Marakkaru in favour of Velayudhan Pillai. A suit for partition of the plaint property and other properties was filed by some of the co-owners in 1104 as O.S. 140/1104 of the Cochin Munsiff's Court. That suit was at first dismissed by the trial court. But in appeal the decision was reversed by the then Cochin Chief Court and a decree was given for partition. The decision of the Chief Court is reported in 25 Cochin 27. After the appellate decree in the partition suit the right under Ext. G was released in favour of Velayudhan Pillai by the assignee of the lease-hold right under Ext. F executed on 12.6.1111 and registered on 19.6.1111. On 20.6.1111 Velayudhan Pillai leased the property to the 1st defendant under Ext. H. There was a pidipathu of Rs. 75. The annual rent fixed was Rs. 80-2-0. A sum of Rs. 12-2-4 was to be paid to the municipality as tax for a building in the property. Out of the balance amount a sum of Rs. 15-10-2 was to be paid to Velayudhan Pillai inclusive of puravaka and Rs. 52-5-6 to be paid to the 5 other co-owners in equal proportion. It will thus be seen that Ext. H was executed in favour of Velayudhan Pillai for and on behalf of all the co-owners. 4. Out of the balance amount a sum of Rs. 15-10-2 was to be paid to Velayudhan Pillai inclusive of puravaka and Rs. 52-5-6 to be paid to the 5 other co-owners in equal proportion. It will thus be seen that Ext. H was executed in favour of Velayudhan Pillai for and on behalf of all the co-owners. 4. The reasons given by the trial court for non-suiting the plaintiff are that since there was already a decree for partition it was not necessary for the plaintiff to file a suit on the basis of the lease deed and that the plaintiff being only an assignee of 2/6th share in the property is not entitled to sue for recovery of possession of the whole property and to claim the rent payable to the other co-owners. According to the lower appellate court although a suit by one of the co-sharers for recovery of the property outstanding on lease is maintainable since there is already a decree for partition and since some of the co-owners object to the plaintiff recovering possession of the whole property the suit was misconceived and was therefore liable to be dismissed. In paragraph 11 of the plaint it is stated that the suit was instituted for and on behalf of all the co-owners and that the plaintiff is agreeable to have the other co-owners impleaded a co-plaintiffs. The question for consideration is whether a suit of this nature is maintainable. It has been held in various cases that one co-sharer alone can file a suit for eviction on behalf of himself and the other co-sharers provided all the co-sharers are made perties to the suit. Reference may be made to the decision reported in 35 Cal. 331 P.C. (Paramadanath Rai v. Raman Kanta Rai). That was a case under the Bengal Tenancy Act. Their Lordships observed thus in that case "It is a general rule - a rule not derived from the Bengal Tenancy Act but from the general principles of legal procedure - that a sharer whose co-sharers refuse to join him as plaintiffs can bring them into the suit as defendants and sue for the whole rent of the tenure." In A.I.R. 1934 Cal. 127 (Jarman Gomez v. Ramakumar) the Calcutta High Court held that a co-sharer landlord who was made the other co-sharers defendants in a suit for ejectment is entitled to get a decree for recovery of possession of the property to the extent of his share jointly with the other co-sharers. In 1940 T.C.L.R.1 (Chacko v. Sankara Pillai) it was held by this court that one co-sharer can sue to recover possession of the share of another co-sharer also from persons who are in permissive possession of the property. Their Lordships have followed the decision reported in 31 T.L.R. 193 (Philipose v. Thoma) in which it has been held that one of several tenants-in-common is entitled to recover exclusive possession of a property from a trespasser. In 1951 K.L.T. 210 (Narayana Pillai v. Ramakrishna Pillai) it was held by this court that a co-owner can maintain a suit for ejectment against trespassers in respect of the whole property. It is not disputed that the plaintiff in this case has acquired the rights of two of the co-owners. On the basis of the principle laid down in the above cases it cannot be disputed that the plaintiff is entitled to sue for recovery of possession of the whole property on behalf of himself and the other co-sharers. The fact that there is a decree for partition under which the plaintiff can work out his rights cannot be raised as a plea by the lessee for not surrendering possession of the property as per the lease deed executed by him. It is true that Ext. H lease deed executed after filing of the partition suit is affected by lis pendens. But that is no reason why the lessor or his representative-in-interest should not be allowed to recover possession of the property from the lessee on the basis of the lease-deed. 5. It was argued by the learned advocate for the 1st respondent that since the plaintiff or his predecessors-in-interest are not parties to Ext. H a suit cannot be filed by the plaintiff on the basis of that document and he referred to various rulings for the position that a person who is not a party to a contract cannot enforce the same. But in this case Velayudhan Pillai leased the property as the seniormost member among the co-owners and the document was executed for and on behalf of all the co-owners. But in this case Velayudhan Pillai leased the property as the seniormost member among the co-owners and the document was executed for and on behalf of all the co-owners. The lessee has undertaken to pay rent to the respective co-owners and it is admitted that rent was accordingly paid by him and accepted by the other co-owners. In the circumstances we see no reason why the ordinary rule that one-co-sharer can institute a suit for ejectment on behalf of the other-co-sharers should not apply to this case. 6. It has also to be observed that although the plaintiff had only 2/6 share at the time of the institution of the suit he has subsequently acquired the rights of three other co-sharers including the right of the lessor Velayudhan Pillai and is therefore the owner 5/6th share in the property at present. Although defendants 8 to 11 who are jointly entitled to 1/6th share filed a written statement in the case they seem to have taken no further interest in the suit. They did not appear in the lower appellate court and they did not appear in this court also to contest the appeal. The 6th defendant was a minor when the suit was filed and his guardian contested the suit on his behalf. He has now become a major. He has submitted in this court through his advocate that he has no objection to a decree being given to the plaintiff. Defendants 5 and 7 also have made a similar statement through their advocate. It will thus be seen that none of the co-owners has now any objection to the plaintiff being giving a decree for possession of the property and for the rent claimed in the suit. Since the rights of Velayudhan Pillai himself who has taken Ext. H lease-deed have been acquired by the plaintiff there is no force in the contention that the suit is not maintainable by reason of the fact that the plaintiff is not a party to Ext. H. For the above reasons we hold that the suit is maintainable. 7. With regard to the second point namely arrears of rent the amount claimed in the plaint as arrears is Rs. 320-8-0. According to the first defendant he has paid Rs. 351-11-0 as rent after the date of Ext. H and it is stated that no receipts have been obtained for Rs. 44-8-0. 7. With regard to the second point namely arrears of rent the amount claimed in the plaint as arrears is Rs. 320-8-0. According to the first defendant he has paid Rs. 351-11-0 as rent after the date of Ext. H and it is stated that no receipts have been obtained for Rs. 44-8-0. Even if the discharge pleaded by the 1st defendant is true it will be seen that more than the amount claimed in the plaint will be found due as arrears on the date of suit. The total rent from the date of the lease deed till the date of suit will be Rs. 661 and odd. Even after giving credit to Rs. 351-11-0 alleged to have been paid by the 1st defendant there will still be a balance of Rs. 329-6-0. In the circumstances it is unnecessary to go into the question whether some of the receipts produced by the 1st defendant which are not admitted by the plaintiff are genuine or not. We therefore hold that the plaintiff is entitled to get the amount claimed in the plaint as arrears of rent. 8. It is not disputed that the Mattancherry Municipality filed a suit for arrears of tax due for the building in the plaint property from 1115 to 1117. Ext. J is the copy of the decree in the suit filed by the municipality. The costs awarded in this case would come to Rs. 39-5-0. Ext. K shows that the municipality realised the decree debt by attaching the amount deposited in O.S. 140/104. The plaintiff has claimed Rs. 30/- as damages on this account. The 1st defendant has undertaken in Ext. H to pay the tax due to the municipality. He is therefore liable to pay the sum of Rs. 30/- claimed as damages in the plaint. With regard to the amount claimed as damages for waste alleged to have been committed by the 1st defendant both the lower courts have concurrently found that no active waste has been committed by the lessee and that he is liable to pay only Rs. 10/- towards the value of an ayinee tree cut and removed by him as per orders of the municipality. We do not find any reason to interfere with this concurrent finding of fact. The plaintiff will be given a decree for a sum of Rs. 10/- on this account. 9. 10/- towards the value of an ayinee tree cut and removed by him as per orders of the municipality. We do not find any reason to interfere with this concurrent finding of fact. The plaintiff will be given a decree for a sum of Rs. 10/- on this account. 9. With regard to costs, we find no reason why the 1st defendant should not pay the costs of the plaintiff. It is contended on behalf of the 2nd defendant that he is not a necessary party to the suit and that he should be given his costs. It is alleged in the plaint that the 2nd defendant is in possession of the property on behalf of the 1st defendant. It is stated in paragraph 3 of the written statement of the 1st defendant that the plaint lease deed was executed at the instance of the 2nd defendant. The 2nd defendant gave evidence in the case on behalf of the 1st defendant. In the circumstances it cannot be said that the 2nd defendant was unnecessarily impleaded in the case. The plaintiff is therefore not liable to pay the costs of the 2nd defendant. 10. In the result we set aside the decrees of the lower courts and give the plaintiff a decree for recovery of possession of the plaint property with arrears of rent claimed in the plaint. The plaintiff will also be entitled to future rent at the rate of Rs. 80-2-0 per year from the date of suit till the date of recovery of possession of the property or for a period of three years whichever event happens earlier. The plaintiff is also given a decree for Rs. 30/- as damages on account of the failure of the 1st defendant to pay the municipal tax, and also Rs. 10/- as value of an ayinee tree cut and removed by the 1st defendant. Future interest at 6 per cent is allowed on the amounts decreed and on future rent. The plaintiff will also get his costs in both the lower courts and in this court from the 1st defendant with 6% interest. The defendants will suffer their costs in all the courts. The second appeal is allowed in the manner mentioned above. Allowed.