AI Structured Summary
Not yet generated for this judgment
Judgment
P. Ramakrishnam Raju, J.—The second defendant in the suit is the appellant. The first respondent-plaintiff filed the suit against the appellant and the second respondent for recovery of a sum of Rs. 20,000/- representing arrears of rent due to him from 1-4-1984 to 31-1-1985 and also for a direction to the second respondent to pay his share of rent of Rs. 2,000/- regularly. The case of the first respondent-plaintiff is that he had purchased Plot No. 19 admeasuring 395-75 Sq. yards through a registered sale deed dated March 14,1978; while the appellant purchased Plot No. l9-B, admeasuring 395-00 Sq. yards under a registered sale deed on the same day. Subsequently, both the first respondent and the appellant have constructed a building on the said plots jointly. The said premises was leased out to the second respondent on a monthly rent of Rs. 4,000/- under a lease deed dated 1-11-1982. The appellant was collecting the rents and he gave the account of rents up to the end of March, 1984. From 1-4-1984 to 31-1-1985, the appellant did not render any account having received the rents-from the tenant. In spite of giving notice, neither the first defendant nor the second defendant paid the amount due to the plaintiff. Hence the suit.
The second respondent who is the first defendant in the suit remained ex parte. The appellant who is the second defendant filed his written statement. The appellant contended that a composite plan was submitted to the Municipality for construction of a building. After obtaining sanction, the plaintiff had expressed his inability to finance the construction, but expressed his desire to sell the same to the second defendant at the market rate. The appellant expressed his desire to construct the entire building and enjoy the same subject to payment of cost of the share of the plaintiff to him.
The plaintiff was examined as P.W.1 and the appellant was examined as D.W.1. The trial Court dismissed the suit holding that the suit is not maintainable for mere recovery of rent without seeking for a declaration of title. As tine value of the building in question is more than Rs. 4,00,000/-, the trial Court has no pecuniary jurisdiction over the plaint schedule property. The plaintiff preferred an appeal before the Additional Chief Judge, City Civil Court, Hyderabad and the said appeal was allowed on 26-10-1992 holding that the plaintiff is entitled to claim his share of rent and he need not file any suit for declaration of his title. The appellate Court has framed the following points:
Whether the plaintiff is entitled to claim rents as prayed for?
Whether the suit is maintainable without seeking for declaration of title in respect of the suit premises?
Whether the trial Court has no pecuniary jurisdiction?
To what relief?
Though Point No. 2 as framed relates to the declaration of title in respect of the suit premises, the appellate Court has prima facie considered the title of the plain tiff in order to find out whether the plain tiff is entitled for any relief. It came to the conclusion that the super-structure was constructed with the joint funds of the parties and the same is subject to settlement of accounts. In that view, the appellate Court held that the appellant is entitled to ask for his share of rent in the building. Hence, this appeal.
The plaintiff filed the suit for recovery of rents on the basis of a lease agreement dated 1-11-1982 which is said to have been executed by the first defendant in favour of the plaintiff and the appellant, but the said agreement was not produced. There is also no averment in the plaint why it could not be produced. The appellant had pleaded that the said document is unstamped and unregistered and it was never acted upon being an incomplete document. The first respondent as plaintiff having pleaded that by virtue of a lease agreement executed by the first defendant jointly in favour of himself and the second defendant, the premises was let out, has to prove the same. In this case neither the document was produced, nor any satisfactory explanation was offered for non-production of the said agreement of lease. In the absence of proof of lease arrangement, the suit for recovery of rent cannot succeed. On this count alone, the plaintiff should be non-suited. Unfortunately the plaintiff did not seek for a decree for damages for use and occupation alternatively.
However, the plaintiff contends that he had contributed his share towards the expenses for construction of the building, and, therefore, he is entitled to claim half share in the rents payable by the first defendant. Here again, there is no proof of contribution of his share by the plaintiff. What all he states in the plaint is that the building was constructed by both of them contributing finances jointly. In his evidence, he has categorically admitted that he did not pay any amount for the construction of the building, but the expenditure was met from the partnership funds available in the hands of the second defendant. It is also admitted that O.S. No. 940 of 1986 was filed on the file of the IV Additional Judge''s Court, Hyderabad by one of the partners against the plaintiff and the appellant herein and others for accounts which is pending. Under these circumstances, it cannot be held that there is proof of contribution of his share of expenditure towards the construction of the premises. On this count also, the plaintiff cannot claim rents from the defendants.
The question of title of the plaintiff cannot be gone into in this suit. It is always open to the plaintiff to seek for declaration of title or for possession of his share in the premises by a properly constituted suit. If the plaintiff is not keen on filing a suit for declaration of title or for recovery of possession of his share in the building, or in case he fails in the said suit, what happens to the site of which he is undisputedly the owner? In case he fails to establish his title and right to recover the half share in the building, he is entitled to seek for recovery of possession of the site admeasuring 395.75 Sq. yards or its value.
A Division Bench of the Madras High Court in Atmakur Venkatasubbiah Chetty and Another Vs. Thirupurasundari Ammal and Others, observed that the maxim - whatever is affixed to the soil belongs to the soil belongs to the soil is a rule of considerable antiquity and has been held to be inapplicable in this country. The Court relied on a statement of Sir Barnes Peacock in Thnkoorchnder Poramanick v. Ramdhone Bhuttacharjee (6 Suth.W.R. 228) where it is observed as follows:
"We think it clear that , according to the usages and customs in this country, buildings and other such improvements made on the land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner material, remaining with the owner of the land, in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess."
The Supreme Court has also approved the statement of Sir Barnes Peacock in Thakoorchnder Poramanick v. Ramdhone Bhuttacharjee (6 Suth. W.R. 228) extracted above in K.A. Dhairyawan and Others Vs. J.R. Thakur and Others, , and held that the English Law of fixtures is inapplicable in India. Therefore, what follows is that the plaintiff would have an option to take the superstructure on payment of the expenses incurred by the second defendant for raising his share of the superstructures and the expenses shall be the actual expenditure incurred by the second defendant at the time of construction. If, however, the plaintiff does not wish to take the superstructure, he can opt to dispose of his land to the second defendant at the market rate as determined on the date of sale.
In view of the above discussion, the Second Appeal is allowed and the judgment and the decree of the lower appellate Court is set aside and the judgment and decree of the trial Court is restored, but in the circumstances, without costs.