Ramachandra Pai Raghunatha Pai vs Pyli Varkey and Others

The legal representative of the deceased Plaintiff who had been impleaded in the lower appellate Court as additional Respondent 5 is the Appellant. The suit was for recovery of possession of the plaint property with arrears of rent. The plaint property was outstanding on Kanom in the family of Defendant 3. This Kanom right had been mortgaged by one Kesavan Namboori. In the partition in Kesavan Namboori''s Illom, the mortgage right was allotted to his brother Sankaran Namboori. In a decree obtained against this Sankaran Namboori his mortgage right wag sold in auction and purchased by the Plaintiff and Defendant 2. They obtained delivery of possession through Court. The property was subsequently leased out to Defendant 1 under Ex. A, dated 24-7-1107. The Plaintiff stated that the Pattom under Ex. A was paid till Nakaram 1110 and that default was made thereafter. He had, therefore, filed the suit to terminate the lease and to recover possession of the plaint property with mesne profits from Defendant 1. Defendant 3 was subsequently impleaded in the case at the instance of Defendant 1. Defendant 4 was impleaded on the contentions raised by Defendant 3. Defendant 1 stated that the Plaintiff and Defendant 2 had no subsisting cause of action against him, that Ex. A had already terminated, that when the Jenmi of the property obtained a decree for arrears of Michavarom and proclaimed the property for sale the Plaintiff and Defendant 2 entered into an agreement with Defendant 3 to sell their rights over the property to Defendant 3, that after the said agreement he was asked by the Plaintiff and Defendant 2 to pay the Pattom due thereafter to Defendant 3, that he paid such Pattom and also surrendered his possession to Defendant 3 and that he was in no way liable for the plaint claim. Defendant 2 supported the Plaintiff. He had, however, admitted that there was a preliminary talk about the agreement mentioned in the written statement of Defendant 1. According to him this karar was not completed and nothing was done pursuant to the same. He stated that the Plaintiff was, however, not a party to the negotiation between himself and Defendant 3, that Defendant 3 went back upon his promise, that the contentions raised by Defendant 1 were all false, that Ex. A was still subsisting and that he had no objection to the suit being decreed as prayed for.

Defendant 3 stated that the Plaintiff and Defendant 2 had entered into an agreement to transfer their rights in the property, that the consideration therefore was paid, that Defendant 1 had paid him Pattom till Kanni 1111, and subsequently surrendered the property to him and that he was in possession of the property thereafter. He also stated that for the arrears of Michavarom due the Jenmi had obtained the decree and sold the property in Court auction and that the same was purchased by Defendant 4 on his behalf. He, therefore, pressed for the dismissal of the suit.

The trial Court held that though there was an agreement to execute the sale in favour of Defendant 3 on payment of Rs. 100, it had not become complete, that possession did not pass to Defendant 3 pursuant to that agreement, that the lease arrangement was not extinguished, that the plaint property was not surrendered to Defendant 3 by Defendant 1 at the instance of Defendant 2, and that the Plaintiff and Defendant 2 were jointly entitled to recover possession of the plaint property with arrears of rent as claimed in the plaint. Defendant 3 took up the matter in appeal. The learned Judge came to the conclusion that the agreement for sale pleaded by Defendants 1 and 3 was completed, that the consideration for the same was paid then and there, that Defendant 3 had performed his part of the contract, and that the Plaintiff and Defendant 2 had committed breach of the same by filing the suit before 15-5-1111 when alone the sale was to be executed. The Court then passed the decree directing Defendant 3 to deposit the agreed consideration of Rs. 100 with interest thereon at 5 per cent, from 13-10-1110 till date of deposit for payment to Defendant 2 and the legal representative of the Plaintiff on their executing a sale deed in favour of Defendant 3 conveying their interest on the plaint property. If this was done the Plaintiff''s suit was to be dismissed and if the amount was not deposited the appeal was to stand dismissed. The appeal is against this decree.

In a suit for recovery of possession of property based on lease it was irregular on the part of the Judge to convert that suit into one for specific performance of a contract for sale and then to decree the same without amending the pleadings or without any request from any of the parties. The Respondent''s learned advocate was also not able to support the decree passed by the learned Judge. If the learned Judge was of the opinion that the agreement for sale was complete and that Defendant 3 had done all that he was bound to do under the terms of the agreement then a finding to that effect had to be recorded and the suit dismissed. After discussing the evidence, the judgment proceeded: Under such circumstances the finding of the trial Court that there was no completed contract was correct. The right to claim the money under the promissory note had become barred by limitation though the lower appellate Court went out of its way and passed a decree not asked for by either party directing Defendant 3 to deposit Rs. 100 and get the sale. Defendant 3 had filed a memorandum of objections in this Court stating that the learned Judge should not have directed the payment of the amount under Ex. I promissory note and the sum of Rs. 20 as Ex. I had become barred by limitation. It was, therefore, clear that Defendant 3 had no intention to pay the amount agreed to before D.W. 1. He had, therefore, committed of the agreement between him and Defendant to which admittedly the Plaintiff was no party. The decree of the lower Court could not therefore, be sustained.

Defendant 1 stated that he had surrendered possession of the property to Defendant. He must be deemed to have done in own risk. The trial Court had made defendant 1 alone liable for the past and future rent. Defendant 1 and the Plaintiff had submitted to that decree. The Plaintiff had also not amended the plaint claiming future rent from Defendant 3 and so we can make Defendant 1 alone liable for the past and future rent. The decree of the lower appellate Court is set aside and that of the trial Court restored. The appellant will get the costs of all the Courts from Defendants 1 and 3. The Defendants will suffer their costs throughout.