Rattan Singh v. Ningthoujam Ongbi Bimola Devi — 1967 DIGILAW 25 (GAU)

JUDGMENT :- This is an appeal filed under Section 47 C. P. C. by the petitioners in Judicial Miscellaneous Case 78 of 1963 on the file of the First Subordinate Judge, Manipur (defendants 2 and 3 in Suit No. 152 of 1951 on his file) against his judgment dated 28-9-1964 dismissing with costs the petition filed by them under Section 47 C. P. C to declare that the respondent-decree-holder received a sum of Rs. 25,000 according to the terms of the decree and that the decree stood fully discharged. The appellants also prayed for an order that she is not entitled to recover any rent from her tenant in occupation of the suit house standing on Plot No. 56A Maxwell Bazar (now Thangal Bazar) in Imphal or, in the alternative, if it is found that any amount out of Rs. 25,000 remained still unpaid, then the balance might be realised from the appellants and that the decree should be declared to be discharged. 2. The facts of the case are as follows. R.W. 3 the respondent herein (Ningthoujam Ongbi Bimbola Devi) and her son Ningthoujam Nabakumar Singh filed Civil Suit 152 of 1951 in the lower Court on 26-11 1951 against one Gulam Hussain, who was added as first defendant and the appellants, who were added as the defendants 2 and 3. They allege in the plaint that Gulam Hussain the first defendant in the suit entered into an agreement with the late husband of the respondent that the latter should construct a pucca house on Plot No. 56A in Maxwell Bazar in Imphal, granted to the first defendant under Patta 162/13 dated 2-9-1948, and that the respondent and her husband should sublet the house and realise rents until the money spent by them for the construction of the house was fully realised. The respondent further alleged in the plaint that her husband spent a sum of Rs 25,000 for the construction of a pucca house, that the construction was completed by 3-11-1950, that the first defendant (Gulam Hussain) put the respondent in possession of the house, that the Chairman Imphal Town Fund allowed her on her application dated 3-11-1950 to sublet the house to one Kishan Lal Rajmal of Maxwell Bazar for one year on a monthly rent of Rupees 150 and that the respondents husband died on 25-3-1951. The respondent further averted in the plaint that in or about October, 1951, the first defendant Gulam Hussain purported to sell away the house to the appellants contrary to Rule 64(b) of the Assam Land Revenue Manual Part II. Chapter I. Section IV read with the Manipur Governments Notification No. 1670/TF/17 dated 16-10-1951 and that the first defendant (Gulam Hussain) applied to the Chairman, Town Fund, Imphal on 30-10-1951 to cancel the authority given by him to the respondent to sublet the building. So, she and her son filed Civil Suit 152 of 1951 as plaintiffs for declaration of their right to possess the suit building until the money due to her was discharged. They reserved their right to bring a fresh suit to recover the money due to them or to pray for a decree for the money due in the same suit by paying ad valorem court-fee on the amount due. The suit was valued at Rs. 25,000. 3. The first defendant remained ex parte. The appellants (defendants 2 and 3) filed written statement denying the allegations of the respondent and pleaded that they were bona fide purchasers of the suit building for value in consideration of Rs. 13,000 under a registered sale deed dated 16-11-1951 executed by the first defendant (Gulam Hussain) in their favour. 4. After trial, the Sub-Judge held that the respondent and her husband built the suit building at a cost of Rs. 25,000, that the respondent sublet the building to one Kishan Lal Rajmal on a monthly rent of Rs. 150 and that the respondent was entitled to be in possession of the suit building until the amount of Rs. 25,000 was realised vide Ext. A/7. The Sub-Judge negatived the contention of the appellants herein that they were bona fide purchasers of the suit building without notice of the restrictive covenant in favour of the respondent annexed to the ownership of the building. The Sub-Judge further held that the transfer of the building by the first defendant in favour of the appellants was hit by the provisions of Assam Land Revenue Manual and that it is illegal. 5. The appellants herein carried the matter in appeal to this Court adding the first defendant and the plaintiffs as respondents 1, 2 and 3 in First Civil Appeal 1 of 1953. 5. The appellants herein carried the matter in appeal to this Court adding the first defendant and the plaintiffs as respondents 1, 2 and 3 in First Civil Appeal 1 of 1953. This Court dismissed the appeal with costs by its judgment and decree dated 14-9-1954 and upheld the judgment and decree of the Sub-Judge. This Court held that the respondent herein and the other plaintiff could not be deprived of their right to realise the rents from the tenants of the suit building, so long as the sum of Rs. 25,000 or any portion thereof remained unpaid. This Court also held that the first defendant (Gulam Hussain) could not validly execute any sale deed in favour of the appellants and that in any view the first defendant (Gulam Hussain) and his transferees should be deemed to be constructive trustees of the suit building for the benefit of R. W. 3 and that they could not deprive the respondent from realising the rents until the amount of Rupees 25,000 was recouped. Vide Ext. A-8. 6. The appellants further carried the matter in appeal to the Supreme Court in Civil Appeal 234 of 1956. The Supreme Court also held that the agreement that the respondent should be entitled to remain in possession of the building until the amount spent by her and her husband was recouped, was a restrictive covenant annexed to the ownership of the land and building and that the appellants, who made no enquiry and who were gratuitous transferees, were bound by the covenant. The Supreme Court also held that it was not the case of either side that the lenders became the owners of the property in dispute and that the title of Gulam Hussain the first defendant, subject to the restrictive covenant, was accepted by the respondent and her son in their plairt. The Supreme Court ultimately dismissed the appeal with costs on 8-3-1961 Vide Ext. A-6. 7. The defendants 2 and 3 (who are the appellants herein) filed Judicial Misc. The Supreme Court ultimately dismissed the appeal with costs on 8-3-1961 Vide Ext. A-6. 7. The defendants 2 and 3 (who are the appellants herein) filed Judicial Misc. Case 78 of 1963 on 30-9-1963 in the lower Court under Section 47 C.P.C setting out the facts of the case and alleging that R.W. 3 the respondent decree-holder has been receiving monthly rents from her tenant in occupation of the building from 9-11-1951, that since 1954 the rents of buildings in the surrounding area greatly increased, that the respondent has been suppressing the real state of affairs in collusion with the tenant and that she realised about Rs. 38,595 from 9-11-1951 to 31-8-1963 as mentioned in the schedule of account mentioned in the petition. The appellants prayed that an order might be passed that the decree stood discharged and that the respondent should be directed not to realise any more rent from the tenant. The appellants alternatively prayed that, if it is found that any amount out of Rs. 25,000 still remained unpaid, then the appellants might be directed to pay up the balance to the respondent so that the decree might be satisfied. The appellants reserved their right to recover from the respondent and her tenants the excess amount (if any) realised by the respondent. Though, in para 9 of the petition, the appellants did not ask for delivery of the building, in para 8 of the petition they stated that the respondent was bound to deliver possession of the building to the appellants, as according to the terms of the decree the respondent could not recover more than Rs. 25,000/-. 8. The respondent filed counter stating that the appellants have no locus standi to file the petition, that she improved the building at a reasonable cost from time to time to make it suitable for being let out, that the schedule of account filed by the appellants is not correct, that she is not bound to deliver possession of the building to the appellants and that the petition is liable to be dismissed. 9. The learned Subordinate Judge recorded the evidence and held firstly, that the appellants should have filed the petition under Order 21, Rule 2 C. P. C. but not under section 47 C. P. C, and that the petition was not maintainable. Secondly, the Sub-Judge held that the respondent is entitled to interest on Rs. 9. The learned Subordinate Judge recorded the evidence and held firstly, that the appellants should have filed the petition under Order 21, Rule 2 C. P. C. but not under section 47 C. P. C, and that the petition was not maintainable. Secondly, the Sub-Judge held that the respondent is entitled to interest on Rs. 25,000/- and also to re-imburse herself with the money expended by her towards the repairs of the building and that the respondent realised only Rs. 13,170/- as rent upto 31-4-1964, according to the account maintained by R. W. 2 (Jaichand Saraogi) the tenant and that the appellants petition-schedule account is not correct. So, the Sub-Judge dismissed the petition with costs. Hence, the present appeal. 10. The points which were urged and which arise for determination are: (i) whether the petition should have been filed under Order 21, Rule 2 C. P. C. ? (ii) whether the petition is maintainable under section 47 C. P. C. ? (iii) Whether the respondent is entitled to claim (a) interest, (b) the money spent by her towards the repairs of the building and (c) land revenue and house tax paid by her? (iv) what is the correct amount which was realised by the respondent? (v) Whether the appellants are entitled to recover possession of the disputed building. 11. Points i and ii: These two points are correlated. It is seen from the narration of facts that the decree in favour of R. W. 3 the respondent is a declaratory decree entitling her to be in possession of the disputed house, until the sum of Rs. 25,000 spent by her for the construction of the house is fully recouped. The respondent took preliminary objection before learned Sub-Judge that the petition was not maintainable. 25,000 spent by her for the construction of the house is fully recouped. The respondent took preliminary objection before learned Sub-Judge that the petition was not maintainable. He passed an order on 19-2-1964 holding that the petition is maintainable under Section 47 C. P. C. But, later on, in his final judgment dated 28-9-1964, he held that the petition is not maintainable under S. 47 C. P.C. but that it should have been filed under O. 21, Rule 2 C. P. C. on the ground that it is the case of the appellants that the decree was discharged with the income realised from the building, that this meant that the decree was adjusted out of Court and that the adjustment has to be recorded under O. 21, Rule 2 C. P. C. But, as rightly urged by learned counsel for the appellants. Order 21, Rule 2 C. P. C. has no application to the facts of this case. It runs as follows: "R. 2. (1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly. (2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree." It applies only when money is payable under a decree of any kind. The learned counsel for the appellants argued that under the decree in question no money is payable, that, therefore, Order 21, Rule 2 C. P. C. does not apply and that it is Section 47 C. P. C., which applies. Section 47 C. P. C. runs as follows: "S. 47. The learned counsel for the appellants argued that under the decree in question no money is payable, that, therefore, Order 21, Rule 2 C. P. C. does not apply and that it is Section 47 C. P. C., which applies. Section 47 C. P. C. runs as follows: "S. 47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court". The appellants counsel relied on a number of decisions relating to the relevant provisions of C. P. C. old and new S. 283 of the old C.P.C. of 1859 (Act VIII of 1859) corresponded to Section 244 of the subsequent C. P. C. of 1877 and 1882. (Acts X of 1877 and XIV of 1882) and S. 47 C. P. C. (Act V of 1908), S. 206 of the old C. P. C. of 1859. (Act VIII of 1859) corresponded to Section 258 of the subsequent C. P. C. of 1877 and 1882 (Acts X of 1877 and XIV of 1882) and Order 21, Rule 2 of the present C. P. C. of 1908 (Act V of 1908). In Kalyan Singh v. Kamta Prasad, (1891) ILR 13 All 339 a regular suit was filed under Section 283 C. P. C. (Act VIII of 1859) to establish the plaintiffs right to certain attached property, on the allegation that the attached property was transferred to him in satisfaction of the decree held by him against the judgment-debtor. It was held that it was not necessary that such transfer should be certified under the provisions of Section 258 C. P. C., but that the prohibition to take cognizance of adjustments and payments referred to in S. 258 C. P. C. related only to the Court executing the decree. It was held that it was not necessary that such transfer should be certified under the provisions of Section 258 C. P. C., but that the prohibition to take cognizance of adjustments and payments referred to in S. 258 C. P. C. related only to the Court executing the decree. In Swamirao Narayan Deshpande v. Kashinath Krishna Mutalik Desai, (1891) ILR 15 Bom 419 on 16-7-1886 S obtained a decree against K for Rs. 315 with costs. On the next day K paid S Rs. 200/- in part satisfaction of the decree and induced K to accept a bond by which S gave up the costs and by which K was to pay the balance of the decree with interest at the end of eight months, S sued upon the bond, K contended that the bond was void under Section 257-A of the Civil Procedure Code (Act XIV of 1882) and that the suit did not lie. It was held that such payment or adjustment could be recognized by a Civil Court, except when executing the decree, and that therefore, a suit based upon such a payment or adjustment should be admitted. Vide also Ghanasham Lakshmandas v. Kashiram Naroba, (1892) ILR 16 Bom 589. In Kedari v. Gajai, ILR 18 Bom 690. A "mirasi" tenure was declared by a decree. It was held that subsequent payment of rent by the defendants was not a payment under a decree but under tenure and that it need not be certified under Section 258 C. P. C. (Act XIV of 1882). In Iswar Chandra Dutt v. Haris Chandra Dutt, (1898) ILR 25 Cal 718 there was an uncertified adjustment of a decree. The judgment-debtors filed a suit to recover back their property, which the decree-holder obtained possession of, in execution of the decree. It was held that the suit was maintainable under Section 244 of C. P. C. (Act XIV of 1882). In Vaidhinadasamy Iyer v. Somasundram Pillai, (1905) ILR 28 Mad 473 (FB) it was held that receipts by a mortgagee in possession of the hypotheca after decree, though payments to the mortgagee under section 20 of the Indian Limitation Act, would not be "moneys payable under decree" within the meaning of section 258 of C. P. C. (Act XIV of 1882). Vide also Ramasami Naik v. Ramasami Chetty, (1907) ILR 30 Mad 255. Vide also Ramasami Naik v. Ramasami Chetty, (1907) ILR 30 Mad 255. In Gajjala Yella Reddi v. Syed Muhammaddalli, ILR 39 Mad 1026 : (AIR 1918 Mad 1154) under the terms of a decree, the mortgagees (decree-holders) were to be in possession of the mortgaged property for six years, to render accounts every year and to give credit for any surplus income accruing from the lands, and at the end of eight years the judgment-debtor applied for taking of accounts and delivery of possession of the lands. It was held that the receipts by the decree-holders of the income from the lands were not payments under or adjustments of the decree under S. 258 of the Civil Procedure Code (Act XIV of 1882), corresponding to Order XXI, rule 2 C. P. C. (Act V of 1908) and that they did not require to be certified to the Court within ninety days from the dates when the income was received by the decree-holders. In Narayanaswami Naidu v. Rangaswami Naidu, ILR 49 Mad 716 : (AIR 1926 Mad 749) it was held that O. XXI, Rule 2 C. P. C. (Act V of 1908) refers to a decree, under which money is payable, whether there are other reliefs granted by the decree or not. In Rambhau Vithalrao Dangre v. Nagarmal Jitamal Potdar, AIR 1948 Nag 94 it was held that where the matter in dispute between the parties relates to the "execution" or "discharge" of the decree, it can be determined only by the Court executing the decree and not by a separate suit. Thus, the recovery of rents from the suit building does not constitute any adjustment or payment of the amount due to R. W. 3 and the decree is not one for money. So O. 21, R. 2 C. P. C. does not apply. 12. The learned counsel for the respondent could not support the finding of the learned Subordinate Judge that the matter was under Order XXI, rule 2 C. P. C. But, he contended that the appellants could file the petition under Section 47 C. P. C. only if the decree in question had already been put into execution by the respondent and that the appellants remedy is to file a separate suit for rendition of accounts and for recovery of possession of the building. In support of this contention he relied on Prabhu Ram v. Kameshwar Prasad Singh, AIR 1940 Pat 420. A" an eight annas co-sharer in a tenure mortgaged his interest to the landlord, who obtained a mortgage decree against that half share. He also obtained rent decrees against "A" and his co-sharer "B" for the rent of the entire tenure and when he executed his mortgage decree, he put up the half share of "A" to sale and notified at the time of the sale that the properties were being sold subject to a charge for rent under the rent decrees. The decree-holder himself became the purchaser of that eight annas share. Thereafter, he applied to execute the rent decrees against the half share of "B" for the full amount of the decrees. It was held that the rent decrees should be deemed to have been satisfied to the extent of one-half. It was also held that all the questions between the decree-holders and the judgment-debtors relating to the "discharge, execution and satisfaction of the decrees" are to be determined in execution and not by a separate suit and that it is the Courts duty to give effect finally to the rights of the parties. In Lakhu Motiram v. Radhabai Mulchand, AIR 1952 Bom 438 a mortgagor sold to M some lands covered by the mortgage bond and some other lands, which were not covered by it. The mortgagee filed a suit against the mortgagor and M to recover the mortgage amount and obtained a decree. In the execution proceedings the lands sold to M, which were not covered by the mortgage bond, were sold away by mistake. Neither M nor the mortgagor raised any objection in the execution proceedings. Later on, M filed a suit against the auction purchaser to recover his properties. It was held that the remedy of M was to apply under Order 21, rule 90 C. P. C. to set aside the sale. It was also held that the suit was barred under Section 47 C. P. C. In Mani Shankar v. Niranjan Swarup, AIR 1955 All 686 it was held that the Executing Court has to determine each and every question, whether complicated or not, if it relates to the "execution or discharge or satisfaction" of the decree. In Jugalkishore Saraf v. M/s. Raw Cotton Co. In Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd., AIR 1955 SC 376 the dispute related to the construction of Order 21, rule 16 C. P. C. It was held that the cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the Legislature their ordinary, natural and grammatical meaning and that if, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same and that if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. Thus, none of the above decisions cited by the respondents counsel lays down that the judgment-debtor cannot apply under S. 47 C. P. C. unless the decree-holder is already executing the decree in the Court. On the other hand, there is a direct decision in Frusappa Mudaliar v. Commercial and Land Mortgage Bank Ltd. (1900) ILR 23 Mad 377, where it was held that the words a "Court executing a decree" in Section 244 C. P. C. (Act XIV of 1882) corresponding to Section 47 C. P. C. (Act V of 1908) do not cover cases of proceedings initiated by the decree-holder only, but that the section covers applications relating to the "execution, discharge or satisfaction of the decree" made by the judgment-debtor also. 13. Thus, to sum up, in the present case there is no decree for payment of money under it and, therefore, Order 21, rule 2 C.P.C. has no application. Also, the recovery of rents by R. W. 3 is not an adjustment of any such decree for money. But, the question raised by the appellants is that the decree obtained by the respondent, that she is entitled to be in possession of the house until she realised Rupees 25,000/- spent for the construction of the house, is satisfied. So, this is a matter which relates to the discharge, or satisfaction of the decree and it should be determined by the Court executing the decree and not by a separate suit. Under section 47 (2) C. P. C. the Court has discretion to treat the proceeding as a suit, subject to payment of any additional Court fee and any objection regarding limitation or jurisdiction. Under section 47 (2) C. P. C. the Court has discretion to treat the proceeding as a suit, subject to payment of any additional Court fee and any objection regarding limitation or jurisdiction. In the present case, the matters in dispute between the parties are not so very complicated that the petition should be treated as a suit. So, the order of the Sub-Judge dated 19-2-1964 that the petition is maintainable under Section 47 C. P. C. is correct and his subsequent order dated 28-9-1964 that the petition is not maintainable under Section 47 C. P. C. and that the adjustment of the decree should be recorded under Order 21, rule C. P C. is not correct. I find point one in the negative and point 2 in the affirmative. 14. Point No. iii : Though the Sub-Judge did not specifically state in his judgment that the respondent is entitled to interest on Rupees 25,000/-, he stated in para 20 of his judgment that in plain language rents were in the nature of "interest" on Rs. 25,000/- invested on the construction of the building. This statement is incorrect. "Rent" is a periodical payment for use of anothers property, while "interest" is a premium paid for use of money. Both have different legal connotation. The evidence of R. W. 2 (Joychand Sagaogi), the tenant of the respondent R. W. 3, who filed some of the accounts of his firm, which is the tenant in occupation of the building in question shows that the firm maintained three separate accounts relating to the rents, repairs of the building, electric fittings and loans advanced by the firm to R. W. 3, as can be seen from Exts. B/1 to B/6. The contention of the learned counsel for the appellants is that the decree in question does not mention that R. W. 3, is entitled to interest on Rs. 25,000/-, that the Executing Court cannot go behind the decree, that it has to be construed as it is and that R. W. 3, cannot claim any interest. He relied on Maharaj Bahadur Singh of Baluchar v. Bhupendra Narayan Singh, AIR 1926 Cal 1233. It was held that interest on mesne profits as defined by Section 2 (12) C. P. C. is in the discretion of the Court. He relied on Maharaj Bahadur Singh of Baluchar v. Bhupendra Narayan Singh, AIR 1926 Cal 1233. It was held that interest on mesne profits as defined by Section 2 (12) C. P. C. is in the discretion of the Court. In Satish Chandra v. Sasi Kanta, AIR 1930 Cal 525 it was held that the statutory definition of mesne profits under S. 2(12) C. P. C. includes interest, but that where the plaintiff himself asked for interest only from the date of the suit he could recover interest so much only and not more. In Pankunni Menon v. Raman Menon, AIR 1931 Mad 650 (FB) it was held that it is not open to the Court, which executes a final decree fixing the amount of mesne profits but is silent as regards the award of any interest or the rate thereof, to make up the omission and itself fix a rate of interest and then allow execution for the interest so fixed. In the present case the amount of Rs. 25,000/- does not represent mesne profits and, therefore, these decisions do not directly apply to this case. But, they lay down the general principle that an executing Court cannot go behind the decree. 15. The contention of the learned counsel for the respondent is that she spent Rupees 25,000/- for the construction of the house, that she is entitled to claim interest on the same, though the decree is silent on this aspect of the case and that the Court will have to construe the decree by taking into account the pleadings and the judgments, which were previously passed. He relied on Topanmal Chhotamal v. M/s. Kundomal Gangaram, AIR 1960 S. C. 388. It was held that the decree in that case was ambiguous, that it was the duty of the executing Court to construe the decree and that for the purpose of interpretation of the decree, when its terms were ambiguous, the Court would certainly be entitled to look into the pleadings and the judgments. It was held that the decree in that case was ambiguous, that it was the duty of the executing Court to construe the decree and that for the purpose of interpretation of the decree, when its terms were ambiguous, the Court would certainly be entitled to look into the pleadings and the judgments. It was further held in that case that the relief, which was expressly prayed for in the plaint and denied, could not be granted in the execution proceedings on the well-settled principle that the Court executing the decree cannot go behind the decree and that it must take the decree as it stands, since the decree is binding and conclusive between the parties to the suit. In the present case, if the plaint is scrutinised, one does not find any prayer for relief for payment of interest on the capital sum of Rs. 25,000/-. Even in the counter filed by R. W. 3 to the petition in question, she did not mention that she is entitled to claim interest on that amount. But, she simply stated that she improved the building at a reasonable cost from time to time to make it suitable to be let out. Vide para 8 of the counter. Nor did any one of the three Courts viz., the Sub-Court, or this Court, or the Supreme Court give any finding that R. W. 3 is entitled to claim interest on the sum of Rs. 25,000/-. There is no mention in the decree that she is entitled to claim interest. So, she is not entitled to claim any interest, though in equity she might be entitled to interest on the amount of Rs. 25,000/- invested by her before the construction of the building. 16. But, however, she claimed in her counter that she improved the house and that she spent a reasonable cost from time to time to make it suitable to be let out. There is, also her evidence that in or about 1950 there was earthquake in Imphal, that the building was damaged and that she had to get it repaired, R. W. 1 (Oinam Tomcha Singh), a contractor, stated that he repaired the house. He deposed that every year he was repairing, white-washing and painting the house and that the yearly expenditure would be between Rs. 130/- to Rs. 200/- R. W. 2, the tenant stated that a sum of Rs. He deposed that every year he was repairing, white-washing and painting the house and that the yearly expenditure would be between Rs. 130/- to Rs. 200/- R. W. 2, the tenant stated that a sum of Rs. 370/- was spent as per Ext. B/4 in 1960 for repairing the building, as it was damaged. He proved Ext. B/5 entry dated 14-11-1960 under which a sum of Rs. 300/- was spent towards electric fittings for the building. It is also in evidence that a godown was repaired and converted into a pucca one at an expense of Rs. 400/-. He further deposed that from 1960 the total amount spent towards repairs might be Rs. 1,300/- to Rs. 1,500/- upto 4-9-1964, the date of his deposition. Though the respondent, R. W. 3, did not produce her own rough accounts said to have been maintained by her, she too stated that the building was repaired time and on at an expense of Rs. 1,500/-. The evidence of R. Ws. 1, 2 and 3 (O. Tomba Singh, Jai Chand Saraogi and the Respondent) that the building was being repaired is quite believable, since the building was built in 1950 and there is no improbability if it required repairs. Though the decree is silent with regard to the repairs, there is a statutory obligation on the part of R. W. 3 under Section 108 of the Transfer of Property Act to maintain the building air and wind tight in a state of good repair so that the tenant could use it. As the walls cracked on account of earthquake the building had to be repaired. Otherwise, it would have crashed down. As such, she is entitled to deduct a sum of Rs. 1,500/- towards repairs, electric fittings etc. and Rs. 100 in the minimum towards the yearly upkeep and maintenance of the building. She is entitled to be recouped of the same as she had to spend the same under her statutory obligation under the Transfer of Property Act as well as under the contract between her and the tenant as evidenced by the testimony of R. Ws. 1 to 3. 17. She is also entitled to deduct land revenue and Municipal house taxes paid for the building. She deposed that the annual land revenue is Rs. 43.06P, as per Ext. B/9 and that the annual municipal tax is Rs. 59.19 P. as per Ext. 1 to 3. 17. She is also entitled to deduct land revenue and Municipal house taxes paid for the building. She deposed that the annual land revenue is Rs. 43.06P, as per Ext. B/9 and that the annual municipal tax is Rs. 59.19 P. as per Ext. B/10. She is entitled to deduct the same from the rents, as they were being paid by her and not by the tenant and as the payment of the same is also obligatory. I find on point (iii) that the respondent is entitled to deduct the cost of repairs and maintenance of the building, land revenue and municipal house tax. 18. Point (iv), The appellants mentioned in the schedule of account of monthly rent realised from the suit building standing on the plot, which is said to be about 96 ft. x 22 ft. Firstly, the appellants alleged that from 9-11-1951 to 8-11-1954 the rent was Rs. 150/- per mensem and that R. W. 3 realised for 3 years Rs. 5,400/-. This was not disputed by R. W. 3. Secondly, they alleged that from 9-11-1954 to 8-11-1957 the rent was Rs. 200/ per mensem and that R. W. 3 realised Rs. 7,200 for three years. Thirdly, they alleged that from 9-11-1957 to 8-11-1960 the rent was Rs. 300/- per mensem and that R. W. 3 realised Rs. 10,800/-. Fourthly, they stated that from 9-11-1960 to 31-8-1963 the rent was Rs. 450/- per mensem and that R. W. 3 realised Rs. 15,195/-. Thus, they alleged that R. W. 3 realised Rs. 38,595/-from 9-11-1951 to 31-8-1963. 19. The appellants examined P. Ws. 1 to 4 (Kartarchand Chabra, Sardar Amrit Singh, Birendra Lal Ray alias Das, and Santokh Singh) and the first appellant as P. W. 5. P.W. 1 (Kartarchand Chabra) deposed that the suit building is on the right side of the building taken by him on rent, that he is staying with his family on the first floor of it that he took on rent only two rooms on the back side of the first floor at the rate of Rs. 130 per mensem and that some tenants are occupying the remaining portion of the building. He produced Ext. A/1 rent-receipt for April 1964. 130 per mensem and that some tenants are occupying the remaining portion of the building. He produced Ext. A/1 rent-receipt for April 1964. P. W. 2 (Sardar Amrit Singh) deposed that he had been carrying on business in a rented building in Thangal Bazar in Imphal for about 15 years prior to the date of his deposition (4-9-1964), that he paid rent at Rs. 300/- per mensem, that, subsequently, it was enhanced to Rs. 500/- per mensem and that the rents for the building in Thangal are on the increase, but that he does not know the disputed building. He admitted that his shop is situate in the congested area of the Bazar and that the premises occupied by him are 20 ft. x 70 ft. P. W. 3 (Birendralal Ray alias Das) deposed that he is carrying on business on the ground floor of a building since about 8 years prior to 31-8-1964 (the date of his deposition), that the suit building is on the right side of his building, that he was paying rent at Rs. 151 per mensem for the portion occupied by him and that the tenant of the remaining portion is paying rent at Rs. 250 per mensem. He produced Ext. A-2 copy of the rent deed and Ext. A/3 rent receipt. In the cross examination he stated that he could not mention the dimensions of the sites on which his building and the disputed building stand. P. W. 4 (Santokh Singh) deposed that he took on rent the ground floor of the building which is to the left of the suit building, that the dimensions of the two buildings are the same, being 96 ft. x 22 ft. that he was paying rent at Rs. 300 per mensem as per Ext. A/4 (rent-receipt) and Ext. A/5 (agreement), that previously, he was occupying another building by paying rent at Rs. 200 per mensem, that as the landlord demanded him to enhance the rent, he vacated it and that the rent for the same was subsequently enhanced to Rupees 600/- per mensem. He and the first appellant (P. W. 5) are friends and his evidence shows that both of them shifted from Burma and that, therefore, he is not an independent witness. P. W. 5 is the first appellant. He and the first appellant (P. W. 5) are friends and his evidence shows that both of them shifted from Burma and that, therefore, he is not an independent witness. P. W. 5 is the first appellant. He deposed that the site on which the suit building stands is 100 in length on one side and 96 in length on the other saide, that its breadth is 22 that since 1964 the rents for the buildings in Thangal Bazar are on the rise and that R. W. 3 realised rent as mentioned by him in the petition schedule. But, he was not able to state about the rents, which he himself for the building occupied by himself. He deposed that he was paying rent at Rs. 300 per mensem. But, he could not state when he commenced to pay the same. He further stated that at the beginning of his tenancy he used to pay rent at Rs. 80 per mensem. But, he could not state for how long he paid rent at that rate. He admitted that the account furnished by him in his petition was approximate. He admitted that he saw the suit building being repaired and white-washed occasionally. Thus, the evidence of P. Ws. 1 to 5 (Kartarchand Chobra, Sardar Amrit Singh, Birendralal Ray alias Das, Santokh Singh and Bawa Ratan Singh) does not show what exactly was the rate of rent which was fixed by R. W. 3 with her tenants and what exact amount she realised. But, their evidence shows that the rents for the buildings adjoining the suit building on either side were on the increase. Thus, the account of rents mentioned by the appellants in the petition-schedule is only a rough one. 20. R. W. 2 (Jai Chand Saraogi) deposed that he is a partner of a firm called "Kishan Lal Saraogi and Co.", that the partnership commenced to carry on business from 5-4-1960, that R. W. 2 (Jai Chand Saraogi) joined the firm as a partner in 1960, that the firm took the suit building on rent and that the firm is still continuing to carry on business in grain etc. in the suit building. He deposed that the rate of rent from 1-4-1960 to 30 11-1960 was fixed at Rs. 200/-per mensem as can be seen from Ext. B/1, but that from 1-12-1960 till 31-3-1961 it was reduced to Rs. in the suit building. He deposed that the rate of rent from 1-4-1960 to 30 11-1960 was fixed at Rs. 200/-per mensem as can be seen from Ext. B/1, but that from 1-12-1960 till 31-3-1961 it was reduced to Rs. 180 per mensem as can be seen from Ext. B/2, and that from 1-4-1961 to 31-3-1962 the rate of rent continued to be Rs. 180 per mensem as per Ext B/3. He further deposed that from 1-4-1962 to 31-3-1963 the rate of rent continued to be Rs. 180/- per mensem as per Ext. B/6 and that from 1-4-1963 to 31-3-1964 the rent was further reduced to Rs. 150/- per mensem. The reason why the rate of rent was raised to Rs. 200 from 1-4-1960 to 30-11-1960 according to him, was R. W. 3 was in a bad financial condition and was ailing for a long time and wanted money for the litigation. So, the rate of rent was raised to Rs 200/-. The reason why it was subsequently reduced to Rupees 180 from 1-12-1960 to 31-3-1963 and still further to Rs. 150 from 1-4-1963 was, according to him, the firm lent a sum of Rs. 5,000/-in 1960 and subsequently, a further sum of Rs. 4,000/- or Rs. 5,000/- and, therefore, the rent was reduced to make up the interest due to the firm on the loan amounts. To the same effect is the evidence of the respondent, R. W. 3. 21. The learned counsel for the appellants raised four contentions with regard to the evidence of R. Ws. 2 and 3 (Jai Chand Saraogi and Bimola Devi). His first contention is that the account books and Exts. B/1 to B/3 and B/6 marked therein cannot be relied upon, since the entries were not made regularly as and when the rents were paid to R. W. 3 (Bimola Devi) Ext. B/1 is an entry for a period of 8 months. Similarly, Ext. B/2 is an entry for a period of 4 months. Likewise, Ext. B/3 is one entry for the period covered by 12 months. So, it is correct to state that the rents were not debited every month. Besides, Ext. B/6 shows that entries were made after the Income-Tax Officer signed the account book. But I do not think that there was any collusion between R. Ws. 2 and 3 (Jai Chand Saraogi and Bimola Devi). So, it is correct to state that the rents were not debited every month. Besides, Ext. B/6 shows that entries were made after the Income-Tax Officer signed the account book. But I do not think that there was any collusion between R. Ws. 2 and 3 (Jai Chand Saraogi and Bimola Devi). For, it would be against the interest of both the parties to make false allegations and entries in the account books regarding the rents. If it is quite possible that the firm paid the rents to R. W. 3 (Bimola Devi in a lump sum from time to time as evidence by Ex. B/6 also. There is no reason for disbelieving the accounts produced by R. W. 2 (Jai Chand Saraogi). 22. The second contention of the learnned counsel for the appellants is that R. W. 2 (Jai Chand Saraogi) did not produce the subsequent accounts from 1962 to 1964 and that he suppressed them. But the evidence of R. W. 2 (Jai Chand Saraogi) is that one of the account books was filed in the office of the Income-Tax Officer in Sibsagar and that the other account book was in the firms head Office in Dimapur. The learned Counsel for the appellants contended that the Income-Tax Officer must have seized the account books on the ground that they were fraudulently maintained. But, there is no evidence in support of any such surmise. R. W. 3 (Bimola Devi) did not produce her rough accounts into the Court. The learned Sub Judge states in his judgment that the burden of proof lay initially on the appellants to prove the correctness of the petition schedule account filed by them. But, it is not stationary. It shifts to the other side also. The evidence adduced by R. W. 3 (Bimola Devi) at least with regard to the period from 1-4-1960 cannot be said to be unsatisfactory and reliance can be placed upon Exts. B/1 to B/3 and B/6 in the account books produced by R. W. 2 (Jai Chand Saraogi). 23. The third contention of the learned counsel for the appellants is that the sum of Rs. 5,000/- is said to have been lent by the firm to R. W. 3 in 1960 and that the subsequent loan of about Rs. 4,000/ or Rs. 23. The third contention of the learned counsel for the appellants is that the sum of Rs. 5,000/- is said to have been lent by the firm to R. W. 3 in 1960 and that the subsequent loan of about Rs. 4,000/ or Rs. 5,000/- were lump sum payment of rents and that therefore, they should be taken into account in arriving at the total amount of the rents collected by R. W. 3. This is only a surmise. In view of the positive evidence of R. Ws. 2 and 3 that R. W. 3 borrowed the said amounts for fighting out the litigation upto the Supreme Court and for meeting her expenditure during her prolonged illness, the loans appear to be true. So, these amounts cannot be said to represent lump sum payment of rents, for which there is absolutely no evidence. 24. The fourth contention of the learned counsel for the appellants is that the firm purposely reduced the rent from Rs. 200/- to Rs. 180 for the period between 1-12-1960 to 31-3-1963 and subsequently to Rs. 150/- from 1-4-1963, so that R. W. 3 might not appear to have realised the sum due to her. There is considerable force in this contention. The evidence of R. Ws. 2 and 3 is that the rent was reduced from 1-12-1960 in lieu of interest due on the loans. This they are not entitled to do. The firm has to collect the interest, if payable on the loans separately. It has nothing to do with the rents for the building payable by it. So, the rent must be computed at Rs. 200 per mensem from 1-12-1960. This seems to be the correct rate of rent in view of the fact that the building in question is involved in long drawn out litigation.