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Sm. Mana Devi Vs. Malki Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberExn. Second Appeal No. 724 of 1955
Judge
Reported inAIR1961All84
ActsTransfer of Property Act, 1882 - Sections 108; Code of Civil Procedure (CPC) , 1908 - Sections 47
AppellantSm. Mana Devi
RespondentMalki Ram and anr.
Appellant AdvocateP.M. Verma, Adv.
Respondent AdvocateA. Banerji, Adv.
DispositionAppeal dismissed
Excerpt:
.....by sub-lesee not within the purview of order of execution - held, lessor have no right to claim compensation on the additional property. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in..........j.1. this is a decree-holder's appeal and arises in the following circumstances.2. the plaintiff decree-holder filed a suit for ejectment of defendant no. 1 malki ram and defendant no. 2 dr. manohar lal garg and for recovery of rs. 260/- as arrears of rent from malki ram. the plaintiff's case was that she had let out the house in suit to malki ram alone on a rent of rs. 13/- per month but he without any right let it out to dr. garg and in spite of notice to quit neither of the two defendants vacated the house in suit.3. malki ram did not contest the suit. the suit was contested only by dr. garg. his case was that he was a stranger and the tenant malki ram had sub-let the house to him at rs. 13/- per month and subsequently there was an agreement between the plaintiff and him that he.....
Judgment:

S.N. Sahai, J.

1. This is a decree-holder's appeal and arises in the following circumstances.

2. The plaintiff decree-holder filed a suit for ejectment of defendant No. 1 Malki Ram and defendant No. 2 Dr. Manohar Lal Garg and for recovery of Rs. 260/- as arrears of rent from Malki Ram. The plaintiff's case was that she had let out the house in suit to Malki Ram alone on a rent of Rs. 13/- per month but he without any right let it out to Dr. Garg and in spite of notice to quit neither of the two defendants vacated the house in suit.

3. Malki Ram did not contest the suit. The suit was contested only by Dr. Garg. His case was that he was a stranger and the tenant Malki Ram had sub-let the house to him at Rs. 13/- per month and subsequently there was an agreement between the plaintiff and him that he would make certain constructions in the house, including a motor garage etc. and that the rent would be enhanced from Rs. 13/- to Rs. 15/- per month, while the plaintiff was to pay the entire amount spent on reconstruction which would come to Rs. 900/15/-. He further urged that the entire constructions were made with the consent and in the presence of the plaintiff and accordingly the suit was barred by estoppel.

4. The trial court accepted all the pleas raised in defence and dismissed the plaintiff's suit. It held that Dr. Garg was the real tenant, that the constructions were made with the consent of the plaintiff and that he was entitled to deduct the sum of Rs. 958/8/- spent by him on reconstruction from the rent.

5. The lower appellate court did not agree with the findings arrived at by the trial court. According to it, defendant No. 1 was the real tenant and he having sub-let the house to defendant No. 2, defendant No. 2 was liable to ejectment. It further held that there was no agreement regarding the reconstruction of the house and therefore any amount spent by defendant No. 2 could not be deducted from the rent. It accordingly decreed the plaintiff's suit for ejectment against both the defendants but decreed the plaintiff's suit for arrears of rent against defendant No. 1 alone.

6. After the decree had been executed and possession delivered to the decree-holder an application was made by the decree-holder that defendant No. 2, Dr. Garg had removed the temporary motor garage constructed by him in the premises in suit. She therefore claimed compensation in respect of it

7. The fact that the motor garage was constructed by Dr. Garg by his own money is not disputed. What is said is that he could remove it only before the passing of the decree and after the decree had been passed he was not legally entitled to remove even the materials of the garage built by him. The appellant relies upon el, (p) of Section 108, Transfer of Property Act and two decisions of this Court i.e. Mt. Phool Kuer v. Manohar Lal : AIR1955All223 and Naunihal Bhagat v. Ranieshwar Bhagat, ILR 16 All 328.

8. Both the courts below have dismissed this application for grant of compensation on the ground that Dr. Garg was entitled to remove the temporary constructions made by him even after the passing of the decree and he could legally do it under the provisions of Clause (h) of Section 108, even after the determination of the lease.

9. Aggrieved with the decree passed by the two courts below the decree-holder has come up in second appeal to this Court.

10. The first and the most important question which arises for consideration is whether the decree passed in favour of the appellant covered the garage removed by the respondent and on the basis of the decree the appellant could claim possession of it. The appellant had sued and could sue for possession only in respect of that property which she had let out to Malki Ham and which had been later sub-let to the respondent. The garage in question had never been let out by the appellant. There is nothing to show that she had specifically or impliedly included it in her claim, If there was no decree in respect of it there could be no question of the appellant's claiming compensation on the ground, that she had not got possession of it in execution of the decree.

11. Assuming that the garage was included in the decree learned counsel for the appellant contends that if Malki Ram defendant No. 1 had built the motor garage and had removed it he would have got the benefit of Clause (h) of Section 108. But since the removal had been done by defendant No. 2 and there was no privity of contract between him and the plaintiff his case was not covered by the aforesaid Clause (h). Closely examined it will be found that there is no substance in this contention. When without any objection on behalf of the appellant Malki Ram sub-let the premises to Dr. Garg for certain purposes the latter stepped into the shoes of Malki Ram. His status in law for those purposes became that of a lessee. Therefore, in my opinion he was entitled to the benefit of Clause (h), which runs as follows :

'The lessee may even after the determination of the lease remove at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth provided he leaves the property in the state he receives it.'

12. There is no allegation or even a suggestion on behalf of the plaintiff decree-holder that the house which was leased to Malki Ram and which was subsequently sub-let to Dr. Garg was not given back to the plaintiff in its proper condition. Neither there was any damage nor any alteration in it. Clause (p) which is the sheet-anchor of the plaintiff decree-holder runs as follows :

'The lessee must not without the lessor's consent erect any permanent structure except for agricultural purposes.'

That can only mean that a lessee is directed by this clause not to make any constructions upon the lease property. It does not say, either, expressly or impliedly, that if any lessee contravenes the provisions of it the lessor shall become entitled to the constructions made by the lessee. The authorities relied upon by the learned counsel also do not support the contention raised before me. The case reported in : AIR1955All223 lays down that;

'when a decree directs possession to be delivered over a property, it intends that possession should be delivered over it in the same condition in which it was on the date of the decree.'

It does not say that any additional construction made upon the leased property which was not removed before the passing of the decree should also be delivered to the decree-holder. It lays down that the property in suit should be delivered in the condition as it was immediately before the passing of the decree. In this case, there is no controversy that the house in respect of which the decree was passed was delivered in the condition in which it was prior to the passing of the decree. As already stated above, it was neither damaged nor altered.

13. The other case relied upon was ILR 16 All 328. It has also no application to the facts of the present case. In that case the lessor had filed a suit for ejectment on the ground of non-payment of rent. The lessee in his turn claimed possession over certain additions made by him. It was held by Banerji, J. that the lessor was entitled to recover possession from the lessee without paying any compensation. It is manifest that the question involved in that case was whether the lessor could obtain possession of the leased property without payment of any compensation. The question whether a lessee could remove the temporary constructions made by him during the period of the lease after the determination of the lease did not arise for consideration in that case. This authority also docs not help the appellant. In my opinion, both the courts below were right in holding that the plaintiff-decree-holder was not entitled to any compensation.

14. There is another aspect of the case also. That is whether such an application of the decree holder for compensation was legally maintainable under Section 47 C. P. C. which runs as follows: Section 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 separate suit .........'

15. Professedly this was an application for compensation for certain construction removed by one of the defendants, admittedly which was built by him. The question arises whether such a controversy between the decree-holder and the judgment-debtor was one which was covered by the provisions of Section 47 C. P. C. Obviously it does not relate to the execution, satisfaction or discharge of a decree. If that is so, it will not come within the four corners of the aforesaid section. In almost similar circumstances a learned Judge of this Court, in the case of Panchoo Jolaha v. Mohammad Ismail : AIR1949All263 held that:

'The act of demolishing the cattle-shed was not any part of the execution of the decree. The question of the compensation was not one relating to the execution, satisfaction or discharge of the decree. In demolishing the cattle-shed the court officer and the decree holder were not carrying out either the orders of any court or the terms of any decree. For the act of tort committed by them the only remedy available was a suit and not an application under Section 47.'

16. I respectfully agree with the observations made above. In my opinion, this application under Section 47 C. P. C. was also not legally maintainable.

17. I accordingly dismiss this second appeal with costs. Leave to file special appeal is granted.


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