AI Structured Summary
Not yet generated for this judgment
Judgment
Mr. P. Ramachandra Raju, J.—The Plaintiffs are the appellants. They are a partnership firm, the partners being one Amba Ben Mehata and Santa Ben Mehata. These two ladies have constituted themselves as partners on 14-2-1961 but the firm was registered u/s 59 of the Indian Partnership Act on 30-12-1971. Ex., A-1 which is the extract from the Registrar of Firms, evidences this partnership. Sri R.N. Mehata, (P,W. 1) is the son of Amba Ben Mehata, one of the afore-said partners. Under Ex. A-2 dated 21-11-1963. These two partners have constituted P.W. 1 as their General Power of Attorney Agent. Santa Ben Mehata died during the pendency of the appeal in this Court. Appellants 2 to 6 were brought on record as her Legal Representatives. The plaintiff-Firm is the owner of the suit property. The suit property was leased to the defendants under Ex. A-10 dated 15-5-1964, in terms of which, the lease shall commence from 1-4-1964, and should initially run for a period of 2 1/2 years with an option given to the defendants to renew the lease for a further period of five years on the same terms and conditions. The defendants have exercised their option for renewal. The total period of 7 1/2 years expired by 30-9-1971. The plaintiffs have, by their notices dated: 3-8-1971, determined the tenancy and called-upon the defendants to deliver the vacant possession at the expiry of the period ending 30-9-1971. The defendants received those notices on 5-8-1971 and 6-8-1971. On 18-12-1971, they have sent a reply under Ex. A-17 contending that the defendants have the right to continue to be in possession as tenants as long as they wish to continue as tenants. The suit O.S. No. 2396 of 1972, on the file of the Third Addl. Judge, City Civil Court, Secuuderabad, which has given rise to this appeal, was filed on 4-2-1972, claiming vacant and peaceful possession of the suit property, Compensation Rs. 1,500/- per month for and occupation for the period from 1-10-1971 till 31-1-1972 and for future means profits Rs. 1,500/- per month from the date of the suit till the delivery of the possession were also claimed.
The defendents contented the suit contending, interalia, that the building was constructed before August, 1957, and the Civil Court has no jurisdiction 10 order eviction, that the notices to quit is not proper; the suit riled for recovery of a portion of the leased property is not maintainable, and the plaintiffs should prove that are the Registered Firm and that the compensation and mesne profits claimed are excessive.
The learned Addl. Judge, Civil Court, found that the firm is in fact, registered; the firm is properly represented in the suit by P. W. 1 that the building consists of two portions, the entrance portion having been constructed prior to August, 1957 and the show-room portion was constructed sometime after 1960, the notices to quit are not proper; the suit sled only for possession of a portion of the leased premises; is not maintainable and that the compensation at Rs. 1,000/- per month is proper, if the suit were to be decreed. He held that the show-room portion is only an improvement to the pre-existing shop which was converted as an entrance and the show-room portion froms an integral part of the original shop and that section 32 (b) of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1950 does not apply and the suit for eviction is barred under the provisions of the said Act. He dismissed the suit with costs, because of his findings given as afore-said. The plaintiffs have preferred this appeal.
The appeal originally came-up for hearing before our learned brother Kuppuswami who considered in necessary that the matter should be decided by a Division Bench as the subject-matter of the litigation is heavy and as section 32 (B) of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, has received different interpretation in Desu Kotaiah vs. Immadi Suryanarayana Rao 1976 (1) APLJ-, 249 an unreported judgment of this Court in second Appeal No. 760 of 1674 dated 19-12-1975, and in Kodila Ananta Krishnamechari vs. N.R.S.C. Charities Fund 1972 (2) APLJ., 220
Sri M. Jagaanatha Rao, the learned for the Appellants has contended that the show-room, which is the substantial portion of the scheduled premises, was constructed alter 26-9-1957, and that though on the facts, it amounts to a reconstruction, the provisions of section 32(b) of the Act would apply to such premises; there is no defect in Ex. All notice to quit mere is no defect in the frame of suit and lastly that the quantum of compensation or mesne profits fixed by the learned Additional Judge requires enhancement. Sri Waghray, the learned counsel for the respondents, has on the otter hand, contended that the show-room was existing even from and before 26-8-1957, and that even if the show-room portion was constructed alter that date, it was constructed as an integral part of of the shop to its east and the premises leased out the defendants should be considered to be a building not covered by Section 32 (b) of the Act. According to the learned Counsel, the show-room should be treated as an addition made to a previous existing building as the space occupied by it is relatively small when compared to the total extent of the entire building belonging to the plaintiff. He also urged that the compensation or mesne profits cannot be fixed at more than Rs. 750/- per month.
The points that therefore, arise for determination in this appeal are:
1) Whether the show room was constructed after 26-8-1957 and whether such construction is a new construction or a re-construction of a pre-existing premises?
2) Whether the building in question comes within the meaning ''constructed'' u/s 32 (b) of the Act in either case?
3) Whether the notice to quits is proper?
4) Whether the suit as framed is only for a part of the subject-matter of the leases and if so, is the suit maintainable?
5) Whether P,W, 1 is competent to file the suit and whether the plaintiffs are a Registered firm?
6) To what compensation or mesne profits if any are the plaintiffs entitled to?
Point No. 1:- Ex.A-18, which is a rough sketch filed along with the plaint can be conveniently referred the contentions of the parties. The properties Shown therein originally belonged to the Ramamohana Rao. By the year 1958, four shops numbered as 9 to 13 were existing towards the west of Mahatma Gandhi Road. To the further west of the shop bearing shop Nos. .9 to 13 were also certain buildings bearing premises Nos. 5(a) and 5 to 8. Under a sale deed dated. 5-9-1958, the registration extract of which is filed as Ex.A-5, the shops bearing Nos. 9 to 13 were sold by Ramamohana Rao, and his aboptive mother in favour of one A. Chandrayya and S. Janeswar for a sum of Rs. 53,000/- Chandrayya and Jnaneswar, in their turn, would appear to have conveyed these shops to one Gokul Dass and Mohan Lal under a registered sale deed dated 18-11-1959. Though that sale deed is not filed into the Court, a reference to it is made in the sale deed dated. 17-2 1961 the registration copy of which is filled as Ex.A-3. Under the sale deed dated-6-1-1960, the registration copy of which is filed as P.w.A-4 Ramamohana Rao, sold the vacant site of an extent of 206 Sq, yards to a firm Mohan Lal and company, represented by its partner Gokul Dass. From the description of the property given in Ex.A-4, there can be no doubt that this has reference to the area where the show-room which is a part of the subject matter of the lease, has come into existence. This document also gives a clear indication that by January, 1960, the pre-existing premises bearing Nos. 5(a) and 5 to 8 referred to in he sale deed Ex.A-5 was no longer in existence Ex''A-6 is the copy of the plan attached to Ex.A-5 His common ground that the show-rooms constructed with the dimentations of 49'' x 33-1/2 and constructed area comes to 1641 sp. feet, or roughly 182 sp. yards. Making due provisions for the width of the walls and the space left for foundations, it can safely be inferred that the entire vacant space of 206 square yards, has gone towards the construction of the show room which from the evidence would appear to have come up sometime after 6-1-1960. The firm of Mohan Lal and Gokul Dass & Company has undertaken the construction of the show room and have completed it by 17-2-1961- the show room which thus came into existence, was bearing Nos. 161 to 163. Gokul Dass and Mohan Lal became indebted by 1961 and they sold away the four shops bearing Nos. 9 to 13 and the premisses bearing Nos. 161 to Amba Ben Mehta and Shanta Ben Mehta under the sale deed dated. 17-2-1961, the registration copy of which is filed as Ex.A-3, Ex.B-1 is a sanctioned plan of the year 1953, by which time the property was under the ownership of Rama Mohana Rao. He appears to have had in view the idea of constructing a residential flat in the area of 206 sq. yards. There is, however, no material that Ramamohana Rao, proceeded to construct any building in this area of 206 square yards,. When the property was purchased by Gokul Dass and Mohan Lal, they too would appear to have contemplated the construction of some godowns during the year 1960. They obtained a building sanction under Ex.A-7. Ultimately, they have constructed only what now appears as the show-room. The plan Ex-A-7 when Compared with the plan Ex.B.1 would disclose that the structure that was proposed to be raised by Gokul Dass and Mohan Lal had nothing to do with the structure that was proposed to be faised by Ramamohana Rao, The documents referred to above would also show that whatever structure was existing prior to 1960 had ceased to exist and it was on a vacant site of the extent of 206sq.yards, that the show-room had been ultimately put up Gokul Dass and Mohan Lal. Ex.B-2 filed by the defendants does not relate to the controversy in any manner. It only shows that during the year 1954, Ramamohan Rao, contemplated the idea of providing a roof over the cslonnade of foot path ajoining his premises bearing Nos. 5 to 13. This plan does not show in any manner the existence or otherwise of any premises towards west of the shops bearing Nos. 9 to 13. Exs. B-3 and B-4 are the extracts from the Assessment Book relevant to the year 1953 to 1960. They have a reference only to the premises bearing Door Nos. 9 to 13, which have nothing to do with the premises which were pre existing in this vacant site of 206 sq. yards or the show-room which has come to be constructed thereon some time during the period from January, 1960 to 1961. Ex. A 9 is a tax receipt for the year ending 31-3-1964 and has reference to premises Nos. 17 to 21 corresponding to Old Nos. 9 to 13. This does not throw any light on the present controversy. Ex. A-8 which is the property tax receipt for the year ending 31-3-1964, has reference to the showroom corresponding to premises Nos. 161 to 163. But this also does not throw any light regarding the consideration of these documents will therefore, establish two facts beyond doubt. Some structures then bearing premises Nos. 5 (a) and 5 to 8 were existing in the area of 206 sq. yeards by the year 1958. That structure was no longer in existence by January, 1960. The show room hearing Nos. 161 was existing by 17-2-1961. It matters little if the plaintiff could not file the building sanctioned plan to show exactly the period when the show room was constructed and the Municipal authority under which it was constructed.
A consideration of the oral evidence wilt also set to establish the same facts. P.W 1 is the Power of Attorney Agent of two partners of the plaintiff''s firm. He has in clear terms stated that the show room was constructed by Gokul Dass and Mohan Lal in 1960 during the period of 6 to 7 months and that prior to such construction, the area was available as a vacant site only. For the defendants, two witnesses have been examined. D. W. 1 is the Manager of the defendants Nos. 1 and 3 since 1967. He was frank enough when stated that he does not know personally when the rear portion was constructed, D.W. 2 is a petty shop vendor of eatables. His evidence even in Chief-examination, was that the pre-existing old building was demolished and repaired. He has no doubt added that by demolition, he meant only repairing. The Statements which he made in his cross-examination will go to show that he is not a reliable witness at all. He goes to the extent of stating that there are no show cases at all in the entrance portion of the lease premises and this circumstances is sufficient to say that the court need not given any weight to his evidence. There is no need to doubt the positive evidence, which P.W. 1 has given, specially when his evidence receives referred to above. To added to this we have got the express recital made in the lease agreement Ex. A-10 "It is further agreed that the premises hereby let out is a new one constructed in Year 1961."
The Circumstance that in the same clause the plaintiffs have, by way of precaution, provided for a waiver the part of the defendants of any benefits under the Rent Control Act does not have effect of obliterating the truth in any manner. In the sale deed Ex. A-3 we have the indication that the plaintiffs were given symbolic possession so far as the portion in the occupation of the tenants was concerned and vacant possession so far as the rest of the property is concerned. The circumstances that in the year 1960, the plaintiffs or their vendors made a structural alteration in respect of one of the shops so as to make it serve as an entrance to the show room will go to establish beyond doubt that the plaintiffs were having physical possession of the suit property thely leased it out in favour of the defendants in terms of Ex. A-10. We are therefore, left in this case withe a situation that the suit property consists of two extents, the portion where the show-room exists and which forms the substantial portion of the leased premises is a construction made by the plaintiff''s predecessor-in-title sometime daring 1960 after demolishing some structure which was pre-existing in that site of 206 sq. yards. The other portion consists of the extents of 248 sq. feet which was originally a pre-existing shop but whose wall towards west was demolished with a view to give an entrance to the show room which is the substantial portion of the lease premises. In the reply Ex. A.-47 no specific plea was set up that the premises was constructed prior to August, 1957,. We therefore, hold that the entrance part of the leased premises is a structure existing from before 26-8-1957, but that the show room portion of the leased premises is a reconstruction, the construction having made after some premises pre-existing in that site were demolished completedly and when the entire extent of 206 sq. yards., was available to the plaintiff as a vacant site.
Point No. 2:-''Building'', as defined u/s 2 (iii) of the Act, means among other things, any house of part of house let or to be seperately let for residential purpose what would amount to construction is not defined in any manner under the Act, One has therefore, to relay upon the meaning of the word ''Construction''. ''Construction'', according to the Webster''s New Would Dictionary, means.
1) the act or process of constructing.
2) the way in which something is constructed manner or method of building.
3) Something constructed; structure; building;
The word ''Contract'' in the same Dictionary means;
1) to pile up, building, to put together systematically etc.,
2) something built or put together systematically.
As constructed in Sadhu Singh S. Mulla Singh Vs. District Board, Gurdaspur and Another, apparent that wherever any part of a building is erected afresh, it would fall within the phrase ''construction''. It was observed in the same decision at page 214 that:-
Inflexible rules can be laid down to determine when a reconstructed building can be side to be constructed building within the meaning of the notification. In fact, every reconstrution is construction. The suffix ''re'' means ''again''... The question whether a the provisions building has been constructed so as to attrract the exemption from of the Act by virtue of the notification would depend on the facts and circumstances of each case".
This Bench decision of the Punjab High Court was considered by A. Sambasiva Rao, J, (as he then was) in the decision in Kodila Anantha Krishnachari vs. N.RS.C Charitable Fund 1972 (2) APLJ 220 in that case, the facts found were:-
1) The ground-floor of the building was only extensively repaired and the roof of the front hall was remodelled;
2) The walls newly plastered and an open varandah was convened in 10 an enclosed varandah,. There is otherwise no addition or extension no any structural change of the ground floor and a substantial portion of the old building'' remained in its original shape and there is no evidence even that the old walls were dismantled and rebuilt. The first floor of the building, however, consisting of two rooms was put up subsequent to 26-8-1957."
The question that had to be considered in that case was whether when both the floors were leased out to a tenant under a composite lease, it could be said to be in respect of a building constructing on or after 25-8-1957. Adverting to the arguments that the term used in Section 32 (t) is ''constructed'' and not ''reconstructed'' the learned Judge observed that;
''''If some repairs are done like plastering the walls of repairing the flooring, it could not be good that the same thing as ''constructed1. From the practical point of view, it is difficult to lay down any inflexible rules or test for the purpose of determining when a reconstructed building can be treated as a ''constructed building''. That depends upon the circumstances of each case. Even reconstruction implies ''construction'' in a way. The expression ''construction'' and ''reconstruction'' are patently interchangeable terms. The expression, ''construction'' is used when a new building is put up where none has existed before. The word ''reconstruction'' in its turn applies to a building which is rebuilt in the place of a an existing building. It is thus apparant that an element of construction is common to both the cases. But additions improvements or alternations carried or added to a building cannot called with any reasonableness as a construction of building, when old budding continues to exist with its supporting walls and with its old outlay and design. If a room or two are added and plastering of the walls is re-done it is not resonable to say that the building is ''constructed'' when the building is substantially the old one. If the entire building or a substantial portion of it is pulled down and rebuilt then it might be ''construction '' within the meaning of section 32 (b) of the Act. But where the substantial part the structure of the old building remains and some repairs are done to it and a few rooms added, it is unreasonable to say that it is ''construction'' for the purpose of the said provisions".
From the facts under point No. 1 we have to deal with a converse case. We have also a composite lease in terms of Ex. A-10. The building consists partly of a small mulgi of an area of 240sq. feet and a showroom reconstructed after pulling down completely a pre-exsisting structure to an area of about 206 sq, yards. The area covered by the showroom is the substantial portion of the building let out to the defendants. The shop in the area of 240sq. feet was no doubt a pre-existing building but it was altered by demolishing the western wall of that shop so as to provide entrance into the main show room through the area covered by the pre-existing shop. The plan attached to Ex. A-10 describes the area 20 X12sq. feet only as an entrance leading into the show room. The oral evidence will go to show that it is the show room that is air-conditioned and the main business of the defendants is transacted in that show room. In the entrance portion, two show cases were fixed and the entire premises is closed by having a shutter towards the East of the entrance. An attempt is made by the defendants to say that some sales of cloth were also being made in the entrance portion of the building. But there can be no doubt that this is a false statement. The bills are prepared in the show room and the cashier sits in the show room. It is improbable that any sales of cloth would have been made by the defendants in the portion shown in the plan as entrance. A feeble attempt was made to suggest that in the entrance portion., some fruits were also being a sold during grapes season. But this has not been persisted in who when D. Ws. 1 and 2 gave their evidence before the Court. One has therefore, to proceed on the footing that the entire business is being transacted in the show room portion of the building and no business of any kind is being transacted in the entrance portion of the building. It is strenuously contended by Sri Upendralal Waghray that the area shown as entrance is the kingpin for the building and as that entrance was provided in a pre-existing building, the show room should be considered as an addition to the old pre-existing shop and the Court need not be waved by the circumstances that the show room is located in a bigger area of 206sq yards. We are unable to accept this argument. So far as the defendants are concerned, they could not have transacted any business in the entrance portion if the extent covered by the show room is not made available to them as part of the premises. The plaintiffs bow raised a new structure in the form of a show room, had necessarily to provide a proper entrance to the show room. They have therefore, utilised the space covered by the preexisting shop to serve as an entrance to the show room. We have no situation in holding that the showroom is not a improvement or addition made to the pre-existing small shop of 20 X 12sq. feet. We hold that the substantial portion of the building leased out to the defendants is a building constructed after the relevant date and that only an entrance to that is provided through the relatively small extent covered by the pre-existing shop.
Sri Waghray has then contended that the portion constructed show room should be treated as an addition made for the entire property of the plaintiffs and that it should not be considered in relation to the small extent covered by the pre-existing shop. We find no substances in this contention either. The plaintiffs have been letting out different portions of the building to different tenants. The show room cannot be considered as an addition by looking at its extent relative to the total area of the building belonging to the plaintiffs. The relative its should be with the remaining portion of the building which is the subject-matter of the lease between the parties to this litigation.
In Desu Kotaiah vs. Immadi Suryanarayana Rao. 1976 (1) APLJ 249 (1) Supra, the facts were that the land-lord obtained possession of portion of the building from the tenants by virtue of an agreement to enable him to reconstruct the building. Alter reconstruction, he leased back the premises to the respective tenants and at the end of the lease period, he sued the tenants in ajectment and contended that because of section 32 (b) of the Act, the Rent Control Act does not apply to His building. The suits were dismissed by the trail Court, but the appeals were allowed by the Subordinate Judge, Tenali. The tenants came in second appeals and mainly relied on Section 12 of the Act, which obviously, governs the rights of parties on those facts. It was also held that the construction was made substantially on the existing fundations of the old building. A. V. Krishna Rao. J. has in the course of that judgment made the following observations :-
"The words used in Section 32 (b) are, ''any building Constructed'' and not ''reconstructed''. The words "any building constructed'' can only apply where a new building is put up where none has existed before. The word ''reconstruction'' can properly be applied only to a building which is rebuilt in the place of an existing building. It it was the itention of the legislature to exempt even reconstructed building, i.e., building rebuilt in the place of an existing building. Nothing would have been simpler to enact section 32 (b) of the Act to state ''any building constructed or reconstructed on or alter the 25th August, 1957".
In adverting to the observations made by A. Sambasiva Rao, J., (as be than was) in the case reported in Kodila Anantha Krishnamachari vs. N.R.SC. Charitable fund 1972 (2) APLJ 220 A. V. Krishna Rao, J., felt that loose observations made by A. Sambasiva Rao, J" are not his concluded opinion and that the provisions of section 12 of the Act were not presumably brought to the notice of Sambasiva Rao. J., having regard to the facts in Kodila Anantha Krishnamachari vs. N.R.S.C. Charitable 1972 (2) APLJ 220 there was no score for any argument based u/s 12 of the Act to nave been raised in that case. The structure itself continued to be substantially the some and some alterations were made in the ground floor to suit the purpose of the tenant and two rooms were provided in the first floor and the entire building was let out to the tenant. In an unreported decision in C.C.C.A. No. 152 of 1967, dated 2-8-1971, rendered by a Bench of this Court, Parthasarathy, J., and M. Ramachandra Raju, J., a case which arose on similar facts, it was observed:-
"The test to be adopted is whether the old structure is allowed to remain in tact either wholly or to a substantial extent. There is overwhelming evidence in the present case to establish that the old structure was demolished and an altogether new edition has takes in its place. It is submitted that one of the rooms in the old building still forms an integral part of the new structure and consequently the whole edition must be deemed to be no more than an alteration of a pre-existing building. We are unable to uphold to this contention. The fact that one room was left intact out of the old bunglow is immaterial A small room in the old building has been interested as part of the present structure because of sentimental reasons. This cannot make any difference in view of the fact that a much larger structure with different architectural and other features in view put up on new fundations. There is nothing in common between the precent edition and the humble old structure of the past. The plea that the determined premises do not constitute a new building within the meaning of Section 32 of the Act has been rightly rejected by the lower Court".
We are in respectful agreement with the reasoning given in this unreported Bench judgment of this Court. The view of A. V. Krishna Rao., J. that the act does not apply to the buildings reconstructed after 26-8-1957, cannot be approved. The Legislature exempted alt the buildings constructed on or alter 26-8-1957 from the purview of the Act. The word ''construction'' should be construed as having reference to a fresh building activity irrespective of whether such buildings are to be erected on vacant site or such buildings are erected in the process of reconstructing pre-existing premises alter demolishing them. The same protection, which the Legislature wanted to give to the persons who wants to construct new buildings after the relevant date, is also available to the persons who have embarked themselves upon reconstructing their houses alter the relevant date after getting the preexisting vacant houses demolished. It will be too narrow a view of the would ''construction'' is to be limited to houses building upon only on vacant sites. As stated by A. Sanihasiva Rao, J., the same process of construe) ion is also there even when the houses are reconstructed. In fact a reconstruction is a more arduous process than a fresh construction. The view expressed by A. V. Krishna Rao, J., in Desu Kotaiah vs. Immadi Surayanarayena Rao 1976 (1) APLJ 249 that section 32 (b) of the Act has no application to buildings reconstructed after 26-8-1957, is not correct and is over-ruled. Gangadhara Rao. J., in the unreported Judgment is in second appeal No. 760 of 1974 dated 29-12-1975, was considering a case where the finding of fact was that the building was its if completed prior to 26-8-1957, It is in that back-ground that he expressed the view that the building in question did not fall within the purview of section 32 (b) of the Act. That decision cannot be understood to have laid down the Jaw that section 32 (b) of the Act does not at alt apply to the Judge has stated that it has to be decided on the foots in each case whether a reconstructed building is a new building? within the meaning of section 32 of the Act.
It is strenuously contended by Sri Waghray that Sections 12 and 13 of the Act will have no meaning if building reconstructed after the relevant date are to be protected u/s 32 (b) of the Act. We do not find any substance in this arguments. Sections 12 and 13 of the Act and protect the rights of tenants who are obliged to vacate the premises with a view to enable the landlord to make alternations or additions or to reconstruct the premises. They do not come into play at all where the landlord undertakes the reconstruction in respect of a premises in his actual possession. It is not the defendant''s case that they were in possession of the premises in any manner of either the small shop or of the pre-existing structure in whose place the show room, which is the substantial portion of the premises, was subsequently constructed. We therefore, bold on this point that the building in question is covered by Section 32 (b) of the Act
Point No. 3 :- The learned Addl. Judge thought that Ex. A-11 notice was issued only with reference to the show room portion of the premises of the building and did not cover the entrance portion of the building also. He has misread the terms of Ex. A-11 notice. Ex. A-11 notice when properly read, makes it clear that the notice was given in respect of the premises No. 9/13 leased to the defendants under the lease deed dated 15-5-1964. The notice has obvious reference to all the property that was leased to the defendants under Ex. A-10. The extent of the leased premises was given as 1050 sq. feet. The show room takes in the area of 1641 and f/2 sq. feet and the entrance takes in 240 sq. feet making the total extent as 1880 sq. feet. This roughly corresponds to the extent given in the lease deed Ex. A-10. We hold on this point that the notice to quit is proper and valid.
Point No. 4:-The Addl. Judge saw of the opinion that the suit was filed only for possession of the show room portion of the building. This again is not correct if one makes a reference to the allegations made in paragraph No. 6 of the plaint. Paragraph No. 6 makes a reference to the plaint schedule and also the building as described in the rough sketch which is filed as Ex. A-18. The plaintiffs would have described the property in that manner in the plaint schedule because in the lease Ex. A-10. The property to the east of the show room was described as entrance. If the delivery of possession is ordered with reference to the plaint schedule and to the rough sketch enclosed to the plaint, there cannot be any obstacle in the way of the plaintiffs from executing the decree and in recovering possession of not only the show room portion of the building but also that portion of the building which is shown as entrance. We find on this point accordingly.
Point No. 5:-The property which belonged to Amba Ben Mehta and Shanta Ben Mehta was treated by them as partnership property from 1951, and they have registered the firm on 30-12-1971, an evidenced by Ex. Al, certified extract. The plaintiffs have therefore, established that they are a duly registered firm under the partnership act. Ex. A-2, General Power of Attorney executed by those two ladies in favour of P. W. 1, empowers P.W.I to file this suit. Though Mr. Waghray has contended that the suit is not properly filed for want of permission, we find no substance in this contention. We find this point accordingly against the defendants.
Point No. 6:- The Additional Judge felt that Rs. 1,000/- per month will be a proper compensation or mesne profits to be awarded to the plaintiffs. Having regard to the fact that the building is in a busy locality, in Secunderabad. we fell that the sum of Rs 1,000/- per month is fair to both the parties. We find this point accordingly. In the result, the judgment and decree of the learned Additional Judge, City Civil Court, Secunderabad, are set aside. Theappeal is allowed decreeing the suit with costs throughout directing the defendants to deliver possession of the suit property as shown in the schedule and rough sketch attached to the plaint; directing the defendant to pay Rs. 4 000/- as compensation with interest at 6% per month from 4-2-1972 being the date of the suit, till the date of payment; directing the defendants to pay mesne profits at rate of Rs. 1,000/- per month from 1-2-1972 till the date of delivery of possession with subsequent interest at 6 per cent per month from the first of each succeeding month till the date of payment on payment of the Court fee due thereon by the plaintiffs. Payment at Rs. 750/- per month if any made by the defendants will be given credit before executing the decree. The defendants are given time till 30-6-1979 to vacate the premises.