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Davood Mohideen Rowther Vs. Jayarama Aiyar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtChennai
Decided On
Reported inAIR1921Mad42; (1921)40MLJ38
AppellantDavood Mohideen Rowther
RespondentJayarama Aiyar and anr.
Cases ReferredAmbalavana Chetty v. Singaravelu Udayar
Excerpt:
.....to the current of the later decisions of this court from 1912 onwards and to hold that where the lessee was not put into possession, the lessor was entitled to obtain a decree for khas possession against a stranger trespasser. 11. in the first place, i wish to remark that where a landlord brings a suit for khas possession, the court would do well to direct him to make his lessee a party to the suit and if the lessee does not agree to be a co-plaintiff to make him a defendant along with the trespasser so that all questions might be completely decided in the suit. i think it is better to adhere to the current of the later decisions of this court from 1912 onwards. in this appeal, the parties will bear and receive proportionate costs according to success and failure, the second defendant..........did not obtain possession of the suit lands and brought this suit to recover possession and mesne profits of them from his lessor the first defendant and defendants 2 to 4 who were alleged to be in wrongful possession of them. the subordinate judge found that defendants 2 to 4 were in possession of the suit lands as trespassers and passed a decree for possession against all the defendants and for rs. 350 for past mesne profits and rs. 549 for proportionate costs against the 2nd defendant and directed an enquiry as to future mesne profits from the date of suit until payment. there was a like decree against the 3rd and 4th defendants in respect of the lands in their occupation. the 2nd defendant alone has appealed. on the question of fact we see no reason to differ from the finding.....
Judgment:

Wallis, C.J.

1. The plaintiff in this case on the 6th December, 1917 took the suit and other lands on lease from the 1st defendant under a rental agreement Ex. A for four years from the 15th December, 1917 at an annual rent of Rs. 400 and on the same day Venkatachella and Ponnuswami Muthiriyan took the same lands from the plaintiff for the same term and at the same rent under Ex. V which is styled a deed of sub lease and contains a stipulation that they would themselves take possession of the lands and enjoy them. The plaintiff did not obtain possession of the suit lands and brought this suit to recover possession and mesne profits of them from his lessor the first defendant and defendants 2 to 4 who were alleged to be in wrongful possession of them. The Subordinate Judge found that defendants 2 to 4 were in possession of the suit lands as trespassers and passed a decree for possession against all the defendants and for Rs. 350 for past mesne profits and Rs. 549 for proportionate costs against the 2nd defendant and directed an enquiry as to future mesne profits from the date of suit until payment. There was a like decree against the 3rd and 4th defendants in respect of the lands in their occupation. The 2nd defendant alone has appealed. On the question of fact we see no reason to differ from the finding of the Subordinate Judge that the possession of the 2nd defendant was that of a trespasser. The lands in question had been leased for three years not to him but to his brother-in-law, and his case in his written statement that he paid Rs. 200 to the first defendant who promised to execute a registered lease in his favour for another two years has not been proved. As the Subordinate Judge has pointed out there is a variance between the written statement and his evidence which was that he obtained the lands in. the first instance under a oral lease for five years. This evidence the Subordinate Judge has disbelieved and we see no reason to differ from him.

2. There remains, however, the important question whether the plaintiff is entitled to mesne profits against the 2nd defendant in spite of the fact that he has transferred the whole of his term to Venkatachella and Ponnuswami under Ex. V. It is opposed to general principles to allow one person to sue for what belongs to another or for damages sustained by another and any departure from these principles would in my opinion be sure to lead to undesirable complications. Rules 78 and 79 in Dicey's Parties to an Action pp. 324 and 330 are as follows :--'Rule 78--No one can bring an action for any injury which is not an injury to himself.' Rule 79--'The person who sustains an injury is the person to bring an action for the injury against the wrongdoer.' This is the foundation of the English rule which was applied in Ramanathan Chetty v. Pulikutti Servai I.L.R.(1898) M. 288 and Krishnan Nambudri v. The Secretary of State for India (1908) 19 M.L.J. 347 and in earlier cases in India that a lessor is not entitled to sue a trespasser for possession and mesne profits for the period during which the tenant's term is outstanding. That this rule applies equally to India was shown by Sir John Edge, C.J., in Sita Ram v. Ram Lal I.L.R(1896) . All. 440 with the concurrence of four Judges of that Court : ' the principle it appears to me, must be the same all the world over, and certainly must be the same in India as in England. That principle is that where a man, whether the owner or merely the tenant creates a tenancy under him which entitles the tenant to the exclusive use of the land or of the house, as it may be, the man creating the tenancy cannot have any right to actual possession, unless he has by the lease or by agreement with his tenant reserved to himself a right to peenter and take possession. He has of course a right by due process of law, if the facts arise, to have the tenancy created by him determined and his tenant ejected; but so long as the tenant is entitled to possession, the landlord cannot be entitled to possession. That right to possession he has parted with by the creation of the tenancy. It is no new proposition of law, and the application of that proposition of law, which I believe to be correct, does not introduce into India any new system either of law or of procedure. A landlord whose title is denied by his tenant has got a right to have the tenancy determined. A landlord whose title is questioned by any one else than the tenant has got a right to a declaration under Section 42 of the Specific Relief Act; and if any one enters on the receipt of the rent and profits of the land and takes from his tenants the rents which were due to him, he is entitled against such person, not only to a declaratory decree declaring his title and that the other person has no title, but to a decree putting him into possession, that is, what is known as formal possession, as contra-distinguished from actual or khas possession of the lands as against the person wrongfully taking the rents and profits to which he the landlord is entitled.' This case was followed in Thiruvengada Konan v. Venkatachella Konan I.L.R(1915) Mad. 1042 to which my learned brother was a party in preference to the observations of Sundara Aiyar, J. in Ambalavana Chetti v. Singaravelu Udayar (1912) M.W.N. 669 which had been treated in some cases not included in the authorised reports as affording sufficient ground for refusing to accept the law as laid down bySubrahmania Aiyar and Benson, JJ., in Ramanathan Chetty v. Pulikutti Servai I.L.R(1898) . 21 M. 288. These observations of Sundara Aiyar, J. which were made with reference to the question whether the possession of a trespasser is adverse to the landlord as well as the tenant, did not take account of the different sorts of possession to which the landlord and the tenant are entitled during the pendency of the term as explained by Sir John Edge in Sita Ram v. Ram Lal I.L.R. (1896) All. 440 which unfortunately was not brought to the learned Judge's notice. They were not concurred in by Abdur Rahim, J. who was sitting with him and in my opinion they show no sufficient reason for differing from Ramanadhan Chetti v. Pulikutti Servai I.L.R(1898) . Mad. 288.

3. In that and in other cases to which I have referred, the landlord had fulfilled his duty of putting the tenant in possession before the date of the trespass, whereas here he has been prevented from doing so by the trespass. That, however, does not in my opinion give the plaintiff a right to recover the possession and enjoyment of the land, khas possession as it is called in Northern India, together with compensation for the deprivation of such possession and enjoyment in the shape of mesne profits. It is not the plaintiff, but his lessees Venkatachella and Ponnuswami who are entitled to such possession and mesne profits.

4. As regards possession it seems to me that the most the plaintiff could be entitled to would be, if he had impleaded his lessees, to get a decree directing possession to be given to them If Bissessuri Debea v. Baroda Kanta Roy Chowdhury I.L.R.(1889) Cal. 1076 went further I agree with Subrahmania Aiyar and Benson, JJ. in Ramanadhan v. Pulikutti Serva I.L.R.(1898) Mad. 288 that it should not be followed.

5. The 2nd defendant has not appealed in the present case against the decree for possession, no doubt because it would avail him nothing as the time for which he claimed to hold has expired, but it has been necessary to consider the sort of possession to which the plaintiff would be entitled on the facts, as in my opinion he could only claim mesne profits as damage for the defendants' trespass if he was entitled to possession and enjoyment or khas possession and. he would not be entitled to claim such mesne profits when his lessee was the person entitled to such possession. He might, I think, haverecovered damages for loss of rent as lessor owing to the defendants having trespassed on the lands and prevented him from giving his lessee possession, if he had in fact sustained any such damages, but in the present case he has not, as the effect of the trespass in this case was to relieve him fromliability to pay rent to his lessor to the same extent to which he became disentitled to recover it from his lessee. I agree with the order proposed by my learned brother.

Sadasiva Aiyar, J.

6. This is an appeal from the judgment of the Subordinate Judge of Tanjore in a suit brought by the plaintiff, a lessee of the suit lands for a term of four years who demised the whole of his term to third parties to recover possession and mesne profits from the defendants (2 to 4) who, he says, trespassed on this property. The plaintiff succeeded in the lower court. The second defendant is the appellant before us.

7. The facts appear to be that the second defendant's brother-in-law held this property on a three years' lease from the first defendant, the plaintiff's lessor. The defendant's case is that they held it not on a three years' lease but on a five years' lease, at any rate, that they became entitled in some manner or other to remain in possession for five years. I agree with the Subordinate Judge that it is not shown and I see no reason for differing from his finding that the defendants were only entitled to remain in possession for three years and that their right to possession expire before the commencement of the present lease, that is before the 15th December, 1917.

8. Mr. Kuppuswami Aiyar contended that having demised the whole of his term, the plaintiff had no right under the Transfer of Property Act to sue for possession and mesne profits but that a suit should have been brought by hisdemises. Section 108(j) of the Transfer of Property Act says that the lessee ' (the plaintiff in this case) may transfer absolutely or by way of mortgage or sub lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease.' Therefore, the lessee here remained under all his obligations to the first defendant (his lessor) in spite of this complete sub-demise of the lessee's interest. Therefore he is in the position of a lessor under Section 105 which says that ' a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor or by the transferee, who accepts the transfer on such terms.' Thus, though the plaintiff is the lessee under the first defendant, he is himself in the position of a lessor so far as the third parties to whom he has sub-let the lands during the four years between 15th December, 1917 and 15th December, 1921 is concerned. In Somiammal v. Velliya Sethurayan (1915) 29 M.L.J. 233 Hannay, J. and myself held that a landlord though he has given a lease to a third person was entitled for the purpose of putting his lessee into possession to maintain a suit to eject a trespasser and that the defendant in such a suit could succeed only if he showed that the plaintiff or his lessee had no right to possession because the defendant was himself entitled to possession either through a title paramount to the plaintiffs or derived from the plaintiff or his lessee or because the lessee was unwilling that the plaintiff should get possession during the term of the lease. The question whether the plaintiff in such a case if he is awarded possession is entitled also to recover damages against the trespasser and what the basis is on which the damages should be allowed to him were not decided in Somiammal v. Velliya Sethurayan (1915) 29 M.L.J. 233 In Tiruvengada Konan v. Venkatachella Konan I.L.R(1915) . Mad. 1042 . Napier, J. and myself held that if the lessee had been put in possession and was then dispossessed by a stranger, the lessor suing the trespasser during the currency of the lease term could only get formal possession and that he could not get any damages against the trespasser because it is the lessee who was entitled to get the mesne profits of the land during the currency of the term and the lessor could sustain no pecuniary damages as he had put his lessees into possession and his claim for rent against the lessee had not therefore been affected by the stranger's trespass. Napier, J. and myself were not inclined to adopt the rather too broad view of the lessor's rights indicated in certain passages in the judgment of Sundara Aiyar, J. in Ambalavana Chetty v. Singaravelu Udayar (1912) M.W.N. 669. In Kadiri Kutti Mudaliar v. Kutti Chekkutti Mudaliar (1917) M.W.N. 339 . Oldfield and Phillips, JJ. held that the landlord was entitled to maintain a suit for possession against a trespasser when there was no collusion between the tenant and the trespasser though the tenant was un-willing to join as co-plaintiff.

9. In the present case, the strangers who are the plaintiff's lessees did not obtain possession and the principle of the decision in Somiammal v. Velliya Sethurayan (1915) 29 M.L.J. 233, if applied, justifies the decree for khas possession granted by the lower court in plaintiff's favour. I might add that the second defendant has not appealed against the decree awarding compensation of the lands in second defendant's possession to the plaintiff and he gave up possession of the lands in December 1919, about the time when he filed this appeal. The defendants 3 and 4 who were in possession of a portion of the plaint lands have also not appealed against the decree in the plaintiff's favour for the possession of the lands in their enjoyment. While it may be that, on principle, the decisions in Ramanathan Chetty v. Pulikutti Servai I.L.R.(1898) Mad. 288 and Krishnan Nambudri v. Secretary of State fur India (1908) 19 M.L.J. 347 are entitled to more weight than Sundara Aiyar, J. was inclined to give to them in his elaborate judgment in Ambalavana Chetty v. Singaravelu Udayar (1912) M.W.N. 669 , I think it is better to adhere to the current of the later decisions of this court from 1912 onwards and to hold that where the lessee was not put into possession, the lessor was entitled to obtain a decree for khas possession against a stranger trespasser.

10. As I said, however, that question is not directly before us in this appeal as the appellant has not appealed against the decree so far as it awarded possession to the plaintiff respondent. His appeal is directed to the award of mesne profits past and future and to the award of costs to the plaintiff and to the disallowance of his (second defendant's) costs.

11. In the first place, I wish to remark that where a landlord brings a suit for khas possession, the Court would do well to direct him to make his lessee a party to the suit and if the lessee does not agree to be a co-plaintiff to make him a defendant along with the trespasser so that all questions might be completely decided in the suit. I think it is better to adhere to the current of the later decisions of this court from 1912 onwards. It seems to me again that when the landlord is decreed for khas possession in the case where his lessee never obtained possession, the plaintiff is in his own primary right entitled only to formal possession and it is in his secondary right arising' out of his obligation to put his lessee in actual possession that he is awarded actual possession. Under his primary right to formal possession, he is entitled only to claim as damages the loss of rent (if any) arising from the injury caused to that primary right by the defendant's trespass because the plaintiff's lessee was not bound to pay rent till he got possession and the plaintiff would (if he lost any thing) be losing his rents only during the defendant's trespass. I would therefore hold that the plaintiff is not entitled to claim the net mesne profits. Is he entitled to claim damages in the shape of rents lost The answer will depend on whether he has reallyincurred damages in the shape of rents lost. The trespass of defendants 2, 3 and 4 deprived not only the plaintiff of formal possession but also the first defendant the plaintiff's lessor of such possession. No doubt; the plaintiff would have been entitled to recover rent from his sub lessees if the defendants 1 to 4 did not commit the trespass and had allowed the plaintiff's sub lessees to take possession. In that case, the amount of such rent might, in reason be awarded to him if he really incurred pecuniary loss by deprivation of that rent. (Rent alone was allowed as damages against trespassers to the lessor plaintiff in A.S. No. 6 of 1920 decided by this Beneh recently.) But facts of this case are rather peculiar. The plaintiff himself would have been obliged to pay to the first defendant the same rent which he was entitled to obtain from his sublessees from the date on which his sub-lessees took possession of the lands from the trespassers, an obligation from which he has been freed through the trespass of the defendants 2 to 4 which gave rise to his cause of action against them to sue for possession. Prior to the date of recovery of possession from the trespassers the plaintiff was not bound to pay rent to the first defendant nor was he entitled to recover anything from the plaintiff's own lessees. Hence, the plaintiff himself personally has really lost nothingpeculiarly and it is the first defendant who has lost his rents and it is the plaintiff's lessees who have lost the difference (if any) between the net mesne profits and the rent. As regards the measure of damages in such cases, Ratan Lal says (Law of Torts, sixth edition p. 317) ' The damages, will vary considerably, according to the plaintiff's interests in the land. This is obviously just both to prevent the plaintiff getting extravagant recompense when his interest is on the point of expiring, or very remote, and to prevent the defendant being forced to pay for the same damage several times over. The same act may give rise to different injuries. The tenant may sue for the injuries to his possession and the landlord for the injuries to his reversion.'

12. And so where several persons are entitled in succession, as tenant for life, in tail, in fee, each can only recover damages commensurate to the injury done to their respective estates. While I feel bound not to depart from the later precedents of this court on the question of the lessor-plaintiff's right to sue trespassers in ejectment under a certain state of facts, I do not feel bound to go further and to hold that he s entitled to claim the damages which either the first defendant (plaintiff's lessor) or the third parties (plaintiff's lessees) may be entitle to recover from the trespassers. I hold therefore that the plaintiff has sustained no pecuniary damages and can recover neither rent nor mesne profits as damages.

13. In the result, the lower court's decree would have to be modified by disallowing Rs. 350 awarded against the 2nd defendant for past mesne profits, by allowing proportionate costs to the plaintiff against the 2nd defendant on a fresh calculation entitled by such disallowance and by omitting the direction for enquiries about future mesne profits. In this appeal, the parties will bear and receive proportionate costs according to success and failure, the second defendant (appellant) having added frivolous claims in the appeal petition such as credit for a sum of Rs. 200 falsely alleged by him to have been advanced to the first defendant.

14. Memorandom of objections dismissed.


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