Paulose v. Thomas — 1998 DIGILAW 446 (KER)

JUDGMENT P.K. Balasubramanyan, J. 1. The first defendant is the appellant. The plaintiff his brother filed the suit originally for an injunction restraining the first defendant from entering the plaint schedule property a shop room held on tenancy under the father of DW2. Subsequently the plaintiff amended the plaint and sought recovery of possession on the strength of his possession as lessee and also on the basis of his right as a lessee. The first defendant resisted the suit contending that he was himself the lessee and not the plaintiff and the second defendant as claimed by the plaintiff. The trial court dismissed the suit upholding the plea of the first defendant The lower appellate court negatived the plea of the first defendant and granted the plaintiff a decree for recovery of possession with messe profits. This is what is challenged by the first defendant in this Second Appeal. 2. When this Second Appeal came up for admission it was found that the sole respondent in this Second Appeal had filed a caveat Since a caveat had been filed the matter was adjourned for more elaborate arguments. The matter was again posted today and both counsel were heard. Counsel had copies of the necessary documents and copies of the depositions of the witnesses and that were made available for perusal. 3. The plaintiff came forward with the suit contending that himself and the second defendant took the building on lease from the landlord on 1.10.1965. The landlord is admittedly no more and his son was examined in this case as DW2. According to the plaintiff second defendant joined the lease only to secure transaction of lease between himself and the landlord. The first defendant is the elder brother of the plaintiff. According to the plaintiff the first defendant who after he had left his employment elsewhere was assisting the plaintiff in the business that was being carried on in the premises was asserting independent rights over the building and this had resulted in the plaintiff having to seek the relief of injunction restraining the first defendant from interfering with the possession of the plaintiff over the plaint schedule property. It is seen that the plaintiff did not get an interim order of injunction and prompted by the observations of the lower appellate court in the Civil Miscellaneous Appeal arising from the application for injunction, the plaintiff amended the plaint, inserted paragraph 4A therein and the prayer for recovery of possession from the first defendant. The case of the first defendant was that though the lease deed was executed by the plaintiff and the second defendant the lease was really taken by him and that the plaintiff or the defendant had no right or possession over the premises and the premises had always been in the possession of the first defendant as a lessee. The first defendant therefore contended that the plaintiff was not entitled to recover possession of the plaint schedule room either on the strength of his title as lessee or on the strength of his prior possession. The second defendant who according to the plaintiff had also found the execution of the lease deed in favour of the landlord did not appear in the suit and he was set exparte though he came forward and gave evidence in the suit as DW 3. The trial court held that even though the lease deed was executed by the plaintiff and defendant No. 2 in favour of the landlord, the first defendant had succeeded in establishing that he it was who was always in possession of the premises as the lessee and the plaintiff was not in possession of the building as a lessee. The trial court therefore held that the plaintiff was not entitled to a decree for injunction. Regarding the claim for recovery of possession, the trial court dealt with the suit only on the basis that the plaintiff had claimed only a possessory title and since the plaintiff had failed to establish that he was in possession of the premises earlier and had been dispossessed by the first defendant, the plaintiff would not be entitled to a decree for recovery of possession. It is not seen that the trial court had dealt with the claim of the plaintiff for recovery of possession on the strength of his title as a lessee. The trial court dismissed the suit. It is not seen that the trial court had dealt with the claim of the plaintiff for recovery of possession on the strength of his title as a lessee. The trial court dismissed the suit. On appeal by the plaintiff, the lower appellate court held that in the face of the admission of the first defendant that the lease deed was executed by the plaintiff and the second defendant and in the light of the other evidence in the case it cannot but be held that the lessee of the premises was the plaintiff and the second defendant and not the first defendant The appellate court on a reappraisal of the evidence held that the plaintiff was in possession of the building as a lessee earlier and the first defendant having no independent right or any right to resist the claim for eviction by the plaintiff, the plaintiff was entitled to a decree for recovery of possession. In that view the appellate court granted a decree to the plaintiff for recovery of possession with mesne profits from the date of suit. This is what is challenged by the first defendant before me. 4. Before proceeding with the merits of the case one aspect projected by the additional ground raised has to be considered. While the appeal was pending before the lower appellate court the second defendant in the suit who was respondent No. 2 in that appeal died on 12.5.1998. No steps were taken by the plaintiff-appellant to implead the legal representatives of the deceased respondent No. 2 in the appeal. The appeal was heard on 5.6.1998 before the appeal had abated as against the legal representatives of deceased respondent No. 2. The judgment of the appellate court was on 15.6.1998 allowing the appeal, again before the appeal had abated against the legal representatives of respondent No. 2. Learned counsel for the first defendant-appellant before me contended that since the plaintiff had set up a case of a joint lease to himself and the second defendant who was respondent No. 2 before the lower appellate court, the lower appellate court could not have proceeded with the hearing of the appeal in the absence of the legal representatives of deceased respondent No. 2 on the array of parties. According to counsel the plaintiff having set up a joint lease in himself and defendant No. 2 and the trial court having found against that joint lease and having found that the real lessee was the first defendant, varying of that finding by the lower appellate court would mean a finding inconsistent with the finding rendered by the trial court which had become final as against the second defendant in the suit, and such a contradictory decree is not contemplated by the Code. Counsel relied on the decision in State of Punjab v. Nathu Ram ( AIR 1962 SC 89 ) and the various decisions in which the said decision is referred to. The effect of the finding of the appellate court now is to hold that the plaintiff and the second defendant were lessees of the property whereas the finding of the trial court which had attained finality as against the second defendant was that the lessee is not the first defendant and not the plaintiff and the second defendant Counsel for the first respondent therefore, contended that the decree of the lower appellate court has imposed a liability on the second defendant for rent under (he transaction of lease and such a decree could not have been granted in the absence of the legal representatives of defendant No. 2 on the array of the parties. Learned counsel for the plaintiff met this contention by pointing out that the second defendant had remained ex parte in the suit and had not raised any claim of lease but had only supported the case put forward by the first defendant and neither the plaintiff nor the first defendant had a case that there was any obligation on the second defendant also to pay the rent due to the landlord, the case of the plaintiff being that the second defendant was only some sort of guarantor for the lease transaction between the plaintiff and the landlord and the case of the first defendant being that he was the real lessee and since he was only an employee in another shop at the relevant time and the landlord insisted oh the rent deed being executed by someone else that the lease was taken in the name of the plaintiff and second defendant. It is seen that before the lower appellate court also the second defendant did not appear. It is seen that before the lower appellate court also the second defendant did not appear. "In his evidence as DW3, the second defendant took the stand that the lessee was the first defendant and that he had nothing to do with the lease transaction. In the light of this position learned counsel for the plaintiff relied on the decision of this Court in Narayanan v. Velayudhan ( 1981 KLT 158 ) and contended that the hearing of the appeal was not precluded on the ground that the legal representatives of respondent No. 2 before the lower appellate court had not been impleaded. On a scrutiny of the facts of the case in Narayanan v. Velayudhan it can be seen that that was also a case where the deceased respondent was a person who was only supporting the case of one of the parties who was prosecuting or defending the proceeding and in such a situation it could not be held that the appeal had abated. It appears to me that the ratio of that decision can be applied to the case on hand in view of the fact that the case of the deceased second defendant was one supporting the case put forward by the first defendant and which was being continued to be agitated by the first defendant before the appellate court. Moreover since the second defendant remained exparte in the trial court and in the appellate court, this can be considered to be a case to which sub-clause 4 of O. XXII R. 4 of the Code of Civil Procedure is attracted. The court has power under that provision to exempt the plaintiff from the necessity of substituting the legal representatives of another defendant who has failed to file a written statement or who having filed it had failed to appear and contest the suit. No objection is seen to have been raised before the lower appellate court to the effect that the appeal could not be proceeded with in the absence of the legal representatives of defendant No. 2 who was respondent No. 2 in that appeal. The lower appellate court therefore proceeded to hear and dispose of the appeal. No objection is seen to have been raised before the lower appellate court to the effect that the appeal could not be proceeded with in the absence of the legal representatives of defendant No. 2 who was respondent No. 2 in that appeal. The lower appellate court therefore proceeded to hear and dispose of the appeal. Though there is no express order in that behalf, it must be taken that this is a case where the lower appellate court has exercised its power under O. XXII R. 4(4) of the Code of Civil Procedure to exempt the appellant before that court from impleading the legal representatives of deceased respondent No. 2 in the appeal. Moreover the disclaimer of any status by the second defendant while he was examined as DW3 and his attempt to support the case of the first defendant that the first defendant alone was the lessee of the building justifies the exercise of power under O. XXII R. 4(4) of the Code of Civil Procedure. I am therefore, riot in a position to uphold (he contention of learned counsel for the appellant that the decree of the lower appellate court is defective or one without jurisdiction. I overrule that contention. 5. Coming to the merits of the case, it is clear that the lease deed was executed by the plaintiff and the second defendant. It is admitted. No doubt the lease deed has not been produced in the case. The first defendant attempted to raise a contention that from the time of the lease taken in the year 1965 he had seen continuing in possession of the premises in his own right. His pleadings in the written statement and his evidence as DW1 shows that until the year 1979 he was employed somewhere as an Assistant in a shop and that only in the year 1979 he left that employment. The case of the plaintiff is that from the year 1965 till 1980 he was himself using the premises for the purpose of his business in crackers and that when the first defendant lost His employment, the first defendant also joined him to assist him in the business conducted in the plaint schedule building. It is true that most of the documents produced by the plaintiff are those that have come into existence after the filing of the suit or after the dispute has started. It is true that most of the documents produced by the plaintiff are those that have come into existence after the filing of the suit or after the dispute has started. One of the documents produced by the plaintiff is the renewal of the licence under the Explosives Act and that renewal was taken just before the filing of the suit but immediately after the disputes have started. What is significant is to note that it was a renewal of an existing licence and that clearly indicates that there must have been a licence in the name of the plaintiff for a period anterior to the arising of the dispute between the parties. This is coupled with the fact that the first defendant himself was employed elsewhere until the year 1979 and the fact that the documents produced, Exts. Bl to B6 are all after the year 1979 probabilises the case of the plaintiff that the first defendant joined him in the business only after he left his employment elsewhere. Exts. Bl to B6 produced by the first defendant tends to show that he was the lessee of the premises. But as noticed by the appellate court the name of the first defendant is not shown as the lessee in those documents. But the prior documents relating to the shop room are in the name of the plaintiff and the lower appellate court in my view was justified in finding on the pleadings and the evidence in the case that the plaintiff was in possession of the premises as a lessee and the first defendant his elder brother was associated with him only after the first defendant lost his employment elsewhere. On an appreciation of the evidence I am inclined to agree with the conclusion of the lower appellate court that the first defendant has not shown that he was in independent occupation of the premises from the year 1965 till the date of the suit. In any event I am not satisfied that the lower appellate court has committed a substantial error of law in finding that the plaintiff was in possession of the premises as a lessee and continued to be so until dispute between the parties erupted. 6. In any event I am not satisfied that the lower appellate court has committed a substantial error of law in finding that the plaintiff was in possession of the premises as a lessee and continued to be so until dispute between the parties erupted. 6. Once it is found that the plaintiff is a lessee of the premises, in the absence of any right being established by the first defendant in the premises independent of the plaintiff, the plaintiff is entitled to a decree. There is no case for the first defendant that the plaintiff was his benamidar. Obviously he cannot have such a case in view of the Benami Transactions (Prohibition) Act, 1988. There is no case for the first defendant that the plaintiff was only a trustee for him. Under such circumstances it cannot be held that the first defendant is a beneficiary of the lease. In such a situation, when the plaintiff sues on the strength of his title as lessee and the court finds that title, the plaintiff has necessarily to be given a decree for recovery of possession. 7. Learned counsel for the first defendant relying on certain passages from Dr. Banerji on Specific Relief Act contended that when a lessee sues for recovery of possession against a person who has dispossessed him, the suit by the lessee can only be on his possessory title. With respect to counsel I am not in a position to accept that submission. According to me when a tenant is dispossessed by a stranger or even by the landlord, he has got three options. He can either sue by invoking S. 6 of the Specific Relief Act in which case title to the property will be totally irrelevant He can sue for recovery of possession on the strength of his possessory title which would attract Art. 64 of the Limitation Act in which case he will be entitled to a decree unless the defendant shows a better title. The third option available to the tenant is to sue on the strength of his title as a lessee and such a suit will be governed by Art. 65 of the Limitation Act. The third option available to the tenant is to sue on the strength of his title as a lessee and such a suit will be governed by Art. 65 of the Limitation Act. In such a suit, unless a rival title is established or an extinguishment of the title of the plaintiff as a lessee is pleaded and proved the plaintiff would be entitled to relief on the strength of his title. In the present suit the plaintiff had put forward his claim for recovery both on the strength of his possession as a lessee and also on the strength of his title as a lessee. The lower appellate court has found both the possessory title and the title of the plaintiff as a lessee. On the finding of the appellate court it is also clear that the first defendant has no title leave alone a better title. Under such circumstances the decree of the appellate court could be sustained both on the basis of the possessory title of the plaintiff and also on the basis of the proprietory title of the plaintiff. I therefore, find no merit in this contention on behalf of the appellant. 8. The only other aspect to be considered is regarding the legality of the decree for mesne profits granted by the lower appellate court The lower appellate court has granted a decree for mesne profits at the rate of Rs. 60 per month from the date of suit until recovery subject of course to O. XX R. 12 of the Code of Civil Procedure. It is contended by learned counsel for the first defendant that the case of the first defendant is that he has been paying the rent due to the landlord until the date of his examination and even thereafter. Counsel points out that DW 2 son of the landlord has also admitted that the first defendant was paying the rent to the landlord. Counsel therefore submits that a further decree for recovery of mesne profits in favour of the plaintiff would amount an unjust enrichment of the plaintiff since there will be no obligation on the plaintiff to pay rent for the period during which the first defendant had actually paid the rent. Counsel therefore submits that a further decree for recovery of mesne profits in favour of the plaintiff would amount an unjust enrichment of the plaintiff since there will be no obligation on the plaintiff to pay rent for the period during which the first defendant had actually paid the rent. Even assuming that the first defendant is to be treated only as a name lender, the fact remains that the rent has been discharged by the first defendant due under the lease transaction as admitted by the present landlord DW2. There is therefore, merit in the contention of learned counsel for the first defendant that the first defendant ought not to be fastened with the liability for mesne profits to be paid to the plaint who would be entitled to pocket it without having any obligation to pay any further rent to DW2in view of the fact that the rent due to DW2 has already been paid. Learned counsel for the plaintiff argued that so long as the plaintiff is entitled to have recovery of possession on the strength of his title and so long as it is seen that the tenant was making use of the premises, the plaintiff is entitled to mesne profits as a consequence of the decree for recovery of possession passed in his favour. 9. Normally a plaintiff who establishes a right to recover is also entitled to get a decree for mesne profits or compensation for use and occupation during the period during which he was kept out of possession and the possession was being enjoyed by the defendant. But in a case where the defendant had taken over the obligation of the plaintiff to a stranger and had discharged the liability of the plaintiff to the stranger, it is clear that there will be no further obligation on the plaintiff to pay any rent for the premises to the landlord. But at the same time, it is also clear that the plaintiff has been deprived of the user of the premises by the occupation of the premises by the first defendant. It is in that circumstance that the lower appellate court has granted the plaintiff a decree for mesne profits. It may not be a case of unjust enrichment as postulated by learned counsel for the first defendant. It is in that circumstance that the lower appellate court has granted the plaintiff a decree for mesne profits. It may not be a case of unjust enrichment as postulated by learned counsel for the first defendant. Even though the obligation of the plaintiff to pay the rent to the landlord has been discharged by the first defendant on the basis of his claim that he was the tenant of the premises, the fact remains that the plaintiff has been deprived of the user of the premises and the attendant profits from the business carried on in the building by the occupation of the building by the first defendant. Viewed from that angle, the plaintiff would be entitled to be compensated for the loss of income from the use of premises. This has been moderately fixed by the lower appellate court at Rs. 60/- per month and has been characterised as mesne profits. I think that the decree can be justified on the basis that it is the compensation due from the first defendant to the plaintiff for the plaintiff being deprived of the fruits of his occupation of the premises if he had been permitted to carry on business in the premises on his own. In that view I am not satisfied that the decree for mesne profits is liable to be interfered with. I therefore find no reason to admit this Second Appeal. It is dismissed.