Rajagopala Ayyangar, J.
1. This is an application by the plaintiff under Section 25 of the Small Cause Courts Act to revise the decree of the Additional Sub-Court of Tirunelveli dismissing the plaintiff's suit.
2. The petitioner is the Executive Officer of the Kailasanathaswami temple, while the respondent here who was the defendant before the Subordinate Judge was a person who had taken on lease a vacant site belonging to the plaintiff-petitioner. The property of the plaintiff temple was leased to the defendant under a registered lease deed dated 1-3-1942 for a period of five years and the defendant undertook to surrender vacant possession of the site on 28-2-1947.
He also agreed to remove the superstructures which he might put thereon. Under the terms of the lease, the landlord (plaintiff) had to pay the vacant site tax due to the Municipality, while the lessee who was intending to put up structures upon the site covenanted to pay the municipal tax due on the property which at that time was a sum of Rs. 9-12-0.
The defendant did not surrender possession as covenanted in the lease deed with the result that the plaintiff had to institute O. S. No. 100 of 1947 on the file of the District Munsif's Court, Tirunelveli for possession of the vacant site & for mesne profits accruing therefrom subsequent to 1-3-1947 and a decree was passed in favour of the plaintiff directing the defendant to remove the superstructures and deliver vacant possession and also pay the mesne profits at the rate of Rs. 100 per mensem for the site from 1-3-1947.
This decree of the District Munsif is dated 14-8-1947. There was an appeal to the District Court of Tirunelveli in A. S. No. 303 of 1947 and this was dismissed on 17-1-1948 the defendant preferred a further second appeal to this court, numbered. S. A. No. 628 of 1948 and this also failed and was dismissed by this court on 25-9-1951.
3. Meanwhile as the lessee failed and neglected to pay property tax due to the Municipality on the superstructures erected by the lessee, the Devastanam paid on various dates from 3-8-1948 upto 12-2-1951 a sum of Rs. 640-3-10. As the defendant failed to make good these amounts to the lessor, the present suit was filed for recovery of this sum of Rs. 640-3-10 from the defendant. The plaint in the present suit, S. C. S. No. 311 of 1951 is dated 3-8-1951. In the plaint the plaintiff, i.e., the petitioner here, after setting out the litigation between the parties proceeded to state that the defendant had by the terms of the lease agreed to pay the municipal tax due for the leased premises.
He was, therefore, bound to pay the same by law and under the contract. The plaint also alleged that the defendant failed and neglected to pay the tax in spite of repeated requests by the plaintiff whereon the lessor paid the tax to the municipality to avert its sale for arrears of tax. On these allegations, the plaintiff sought reimbursement of the sum above mentioned, paid as property tax.
4. The defence of the defendant was twofold, firstly that the plaintiff was bound by the terms of the registered lease deed which was assumed to be in force and that under this, the lessee was bound to pay only a sum of Rs. 9-12-0 and not any further sums; and secondly, that the mesne profits already decreed to the plaintiff in O. S. No. 100 of 1947 should be deemed to include the property tax payable on the entire property. It will be noticed that the claim of the plaintiff was really one based upon Sections 69 and 70, Contract Act, and to the allegations made bringing the case within these provisions, there was no denial or repudiation by the defendant in the written statement. On this aspect of the matter, the only defence was that the sum of Rs. 100 per month which had been decreed as mesne profits in the earlier litigation covered this item also.
5. The learned Subordinate Judge raised three points for his determination and these reflect the points that were urged by the defendant in defence of the suit claim. They are: (1) whether the plaintiff is entitled to claim the municipal tax for the site from the defendant notwithstanding the plaintiff having obtained a decree for mesne profits in O. S. No. 100 of 1947; (2) whether the defendant is liable to pay more than Rs. 9-12-0 for the vacant site in respect of the municipal tax; and (3) whether the claim is barred by limitation.
The plea of limitation which was obviously untenable was rejected. The learned Judge held that the judgment in the previous suit, Ex. B. 3 did not include this sum, as it could not possibly include it, but by a curious process of reasoning reached the conclusion that 'the rights of the parties are those determined under the judgment Ex. B. 3' I am unable to understand this sentence in the judgment. The learned Judge then went on to add that the claim to the Municipal tax was barred under Order II rule 2, C. P. Code, inasmuch as the same could have been and ought to have been claimed in O. S. No. 100 of 1947.
Learned counsel for the respondent conceded before me frankly that this portion of the judgment proceeds upon a misapprehension both of the facts and of the law and that he could not support it. The cause of action on which the present suit is based is one that arose long after 1-3-1947, the date on which the surrender ought to have taken place and to enforce which O. S. No. 100 of 1947 was filed.
Therefore, apart from other grounds, there can be no question of Order II, rule 2 being a bar to the claim of the present action. This was the reasoning upon which the claim of the plaintiff has been dismissed by the court below. As this could not obviously be supported, the learned counsel for the defendant sought to support the dismissal of the plaintiff's suit on the ground that the plaintiff had not made out that the conditions of Sections 69 & 70 of the Indian Contract Act had been satisfied, so as to entitle him to claim reimbursement of the sums paid by him for the municipal tar.
When once it is conceded that the payment of the municipal tax for the property was the obligation of the defendant and it was not alleged that the plaintiff had made these payments as a volunteer, it necessarily follows that he is entitled to reimbursement of the sums expended by him. Further, as I have mentioned earlier, the allegations made in the plaint which brought the case within Sections 69 and 70 of Contract Act were not denied or controverted by the defendant and in the circumstances, it amounts to an admission of liability and consequently on which no issue could have been framed.
I do not therefore, see any force in the argument of the learned counsel for the respondent seeking to sustain the decree of the Subordinate Judge in his favour on this new ground. Nor do the decisions in --'Meer Mahomed Hossein v. A.J. Forbes', 2 Ind. App. 1 (A); -- 'Raghavan v. Alamelu Ammal', 31 Mad 35 (B); -- 'Jagapati Raju v. Sadrusannama Arad', AIR 1916 Mad 980 (C) which were referred to by the learned Counsel for the respondent assist him in the view which I have taken of the pleadings in the case.
6. There is only one other matter to be considered & that is an incidental finding given by the learned Subordinate Judge that even on the footing that the plaintiff was entitled to a decree it could not be for any sum in excess of Rs. 9-12-0. This finding cannot be justified either on any proper construction of the lease deed on which the learned Judge has rested it or as applicable to the facts of the present case. The terms of the lease deed are clear that it was the vacant site tax alone that had to be paid by the lessor, and that superstructures were to be put up by the defendant-lessee upon the property and he was to be in enjoyment of them during the period of the lease.
It was for this reason that the lease deed provided that the property tax due for the superstructures had to be paid by the lessee. It is no doubt true that the tax then due was Rs. 9-12-0 which was mentioned. But I can see no justification for the construction that it was the tax at that figure alone that was to be paid by the lessee and that all future increases in the late of the tax or increases in the tax due by the lessee putting up new buildings should be borne by the landlord. I am, therefore, clearly of the opinion that on any proper construction of the lease deed, the entirety of the municipal property tax due on the superstructures should be paid by the lessee.
7. There is one further ground by reason of which this point does not arise for consideration at all. It is admitted that the relationship of lessee and lessor terminated on 1-3-1947 and there was no assent by the lessor to the lessee holding over the tenancy under the terms of Section 116, Transfer of Property Act. And I might mention that is the basis upon which the learned Judge himself proceeds to deal with the first point for determination.
If, therefore, the terms of the lease deed were inapplicable there was no basis for the finding that the plaintiff would only be entitled to reimbursement in respect of the property tax at Rs. 9-12-0 per year.
8. In the result, the civil revision petition is allowed and the small cause suit No. 311 of 1951 is decreed. The petitioner will have his costs here and before the Subordinate Judge, Tirunelveli.