Basheer Ahmed Sayeed, J.
1. This civil revision petition is against the decree and judgment of the learned District Munsif of Chowghat decreeing the suit brought by the plaintiff claiming a sum, of Us. 238 towards rent due in respect of a godown belonging to the plaintiff for the month of February 1949. The defendant is the petitioner. The plaintiff is the manager of a wakf and the suit property forms part of the family wakf created for the benefit of the descendants of the wakif and the ultimate benefit vests in poor orphans.
The property is a godown said to have been constructed for the purpose of storing food-grains. It was taken up by the Government and in the first instance was allowed to be kept by one of the distributors. Subsequently, the defendant became the occupier of the premises at the stipulated rent of Rs. 285 per month. By Ex. B.2 dated 6-12-1948 the defendant-society gave notice to the plaintiff that since the godown was no longer required for the society's use, the plaintiff should take possession of the same on 15-12-1948. The defendant society also offered to give the key of the premises. This notice was promptly replied to by the plaintiff on 14-12-1948.
The plaintiff in that notice stated that the society was not entitled to surrender the building as it was put up for the purpose of storing foodgrains and on the understanding with the Government that it would be occupied as long as the distribution of grains continued in that Firka, that the notice issued by the society was neither legal nor proper, that on account of the carelessness of the society the building had been damaged and that consequently he was not bound to take possession and that for any loss caused to the plaintiff, the society would be held responsible.
On receipt of this notice, the defendant society sent another notice, Ex. B. 3, dated 27-12-1948, reiterating that the society was going to surrender the building by the end of 31-1-1949 after paying the rent till that date and that there will be no liability against them for any subsequent rent. The society also denied that any damage had been caused to the building on account of the society's carelessness. Ex. A.3 dated 28-1-1949 was then sent by the plaintiff to the defendant denying the allegations contained in Ex. B.3 and questioning the attitude of the society in offering to surrender the building without paying for the damages and characterising it as a wrongful attitude and questioning the legality of the notice on that ground and intimating the society that they would be held responsible for the subsequent rent also. Thereafter, the plaintiff filed the suit against the defendant for recovery of the rent for the month of February 1949.
2. In the plaint the averment seems to be to the effect that in spite of the demands, the defendant society was wilfully not paying the arrears of rents and that since the society has damaged the property very much, the plaintiff was not bound to take possession, that the lease had consequently not been determined and so the plaintiff was entitled to claim rent, that even it the lease was determined, since the property had not been restored to its original condition, the plaintiff was entitled to damages for use and occupation.
3. The defendant society raised various contentions; chief among them being that the lease was determined by sending a valid notice to the plaintiff, that along with it the rent for January 1949 had also been remitted and which the plaintiff had accepted, that the society had vacated the building from that date and it was therefore not liable for any subsequent rent or damages and that the other allegations in the plaint that the lease had not been determined were not true, that the defendant society had not committed any damages to the building and that the plaintiff was not entitled to any amount.
The learned District Munsif held in the course of his judgment that the notice the original of Ex. B.3 was a proper notice expressing the intention of the defendant to determine the tenancy by the end of the midnight of January 1949. He further held that the validity of the notice was not questioned in the plaint. The only point on which the notice terminating the lease was questioned 'would appear to be that it was not a valid notice for the reason that it did not express the defendant's willingness to pay for the damages.
4. Having held that the notice was a proper notice and by reason of the notice the lease determined, the learned District Munsif proceeded to consider the further question as to whether the building was damaged by the defendant and consequently the plaintiff was not bound to take possession and therefore the tenancy continued. On this question after a very elaborate discussion, the learned District Munsif came to the conclusion, on a consideration of the evidence on either side, that the building was really damaged when the defendant was in possession and that being so, he held that because the society was bound to repair the building and give it back in the condition in which it was taken up for occupation, the plaintiff was not bound to take possession till then, that the tenancy continued and that it had not been determined and therefore he decreed the suit. It is against this decree that the present civil revision petition has been preferred.
5. I have been taken through the relevant portions of the judgment and even at the outset, I must state that while the claim of the plaintiff is extraordinary, the finding of the learned District Munsif is still more extraordinary. The plaintiff, it must be stated, has misconceived his remedy and by no stretch of imagination could it be said that the plaintiff, who has refused to take possession when possession was offered, could hold the defendant liable for any rents after the lease was terminated and after the plaintiff refused to take possession. The grounds alleged for refusing to take possession by the plaintiff were that the building was damaged and that until and unless the building is repaired, the plaintiff is not obliged or bound to take possession. Such a position seems to be wholly untenable.
When the lease has been terminated by a valid notice as provided for under Section 111, Transfer of Property Act and when possession has been offered and the plaintiff had refused to take possession, it cannot be held that the lease would still continue in favour of the plaintiff. No authority has been cited by the learned counsel for the respondent to substantiate this extraordinary position he has taken up. The authorities which have been cited by him seem to be completely without any bearing on the point at issue.
The first of them is -- 'Henderson v. Squire', (1869) 4 QB 170 (A). That was a case where a tenant, under a parol agreement, without any stipulation that he should deliver up possession of the premises at the end of the term, was nevertheless bound at law to deliver up complete possession. The facts in that case appear to be that a tenant under such an oral agreement underlet a part of the premises & at the determination of both tenancies the under-tenant held over against the will of the tenant & it was held that the landlord can recover against the tenant as damages the value of the whole premises for the time he was kept out of possession, and the costs of ejecting the under-tenant. The facts in the present case are completely at variance with the facts in the reported decision, and I do not think that this renders any assistance to the respondent in this case.
The second authority that has been relied upon by the learned counsel is the one reported in -- 'Ethirajulu Naidu v. Ranganatham Chetti . There also the facts are completely different from the facts of the present case. In that case a lease provided, 'inter alia', that
'the lessee shall always and in any event be entitled to be paid the price of the superstructure built (by the lessee) on the said plot of land before he surrenders possession of the land either on the expiry of the lease granted or any other future lease or at any time and that the price shall be fixed according to the market value of the buildings as at the time of ascertainment and payment.'
In such circumstances, it was held by the Judicial Committee of the Privy Council that the lessee was entitled to hold over as tenant by virtue of the above clause at the rent reserved by the lease until he was paid the then market price. I do not think that this case has any relevancy to the facts in the present case. The next authority relied upon by the learned counsel for the respondent is the decision in --'Judoonath Ghose v. Schoene Kilburn & Co.', 9 Cal 671 (C). Again in this case, the facts are of a quite different nature from those of the present case and it is difficult to see how the decision in that case could be made applicable to the present case.
A passage found at page 339 of Woodfall's Law of Landlord and Tenant has' been relied upon by the learned counsel for the respondent for sustaining the obviously incompetent judgment of the learned District Munsif. The sentence relied upon in the passage at page 339 is to the following effect:
'A tenant remains liable for rent, unless he delivers up complete possession of the premises, or the landlord accept of another in his room.'
In the present ease it is not a case of any failure on the part of the defendant to deliver up vacant possession of the premises. On the other hand, it is quite patent that after terminating the tenancy the defendant went to the extent of offering the key of the premises and it was refused. And the refusal is on the ground that the building should be in complete repair and then only the landlord would take possession. Such a position taken up by the landlord is wholly untenable.
If the premises have been damaged and damaged to a considerable extent as it transpires from the evidence and the judgment of the learned District Munsif, the plaintiff has got his remedies by proceeding against the defendant society for damages, and he will he entitled to get every pie of damage which he will prove against the society. But that would entitle the plaintiff to refuse to fake possession of the premises and then act as if the defendant is continuing as a tenant under him or that the tenant is in occupation and use of the premises and therefore liable to pay damages for such use and occupation. The issues have been confused and the remedy has been misconceived.
The learned counsel for the respondent would urge that under Section 108. Transfer of Property Act, Clause (m) he entered upon the premises immediately after the first notice, the ineffective notice given by the tenant, and when he found that the premises had been damaged, he gave notice of the defects and according to the latter part of that clause when such notice has been given by the landlord, the tenant is bound to make it good within three months after such, notice has been given. The learned counsel for the respondent would say that such a notice having been given by the plaintiff and the defendant having tailed to comply with that notice, the plaintiff would be entitled to recover rents for the subsequent period or damages for use and occupation.
There is nothing in this section to compel the defendant, who has terminated the tenancy and who has, offered to deliver vacant possession and whose offer has been refused more than once, to remain in the premises until the premises, which a recalcitrant tenant might have purposely or otherwise damaged, is put in a state of proper repair. If he fails to comply with any demand, however legitimate it might be, from the plaintiff, the remedy of the plaintiff would be to sue for damages for the neglect or default or other deliberate acts of the defendant. The remedy that the plaintiff has chosen in this case seems to be absolutely without any basis.
The correct law, as pointed out by the learned counsel for the petitioner, has been laid down in -- 'Baliramgiri v. Vasudev', 22 Bom 348 (D) and also in -- 'Abdul Qayum v. Mohammad Fazal Azim', AIR 1937 Lah 121 (E). When once a proper notice has been given and the tenancy has been properly terminated the plaintiff's right would be not to question the notice or the termination of the tenancy, but to claim damages for any loss caused to the plaintiff by reason of any wilful negligence or default on the part of the tenant. The learned Judges in the decision in 22 Bom 348 (D) have considered the question as to what is to happen if possession is not given after a valid notice.
'Does it continue the tenancy indefinitely, or does it give rise to a claim for damages on the part of the landlord? The latter appears to us to be its legal result.'
This is what the learned Judges have observed and they relied upon the decision in (1869) 4 QB 170 (A) and they have observed that the measure of damages would be the extent of the loss of rent, which the landlord sustains during the actual period for which he was kept out of possession and the expenses he was put to in recovering possession of the land. The learned Judges have further observed at page 354 that
'It would be unreasonable to hold cultivators, like the defendants, liable for rent perpetually because the 'inamdar' does not choose to demand or recover possession from the tenants, if he does not desire to treat them as his tenants.'
Even so in AIR 1937 Lah 121 (E)' it has been held that the remedy of the landlord is to sue the tenant for damages, the measure of which is the rental value of the premises for the time he is kept out of possession, and the costs of the legal proceedings to oust the under-tenant from wrongful possession if the tenant fails to deliver vacant possession after termination of notice. But in the present case the facts are on a much stronger footing. Here the tenant has not merely terminated the tenancy but also offered to deliver vacant possession by giving the hey. The plaintiff wilfully would not take possession on the ground that the premises remained damaged and it should be repaired and put in a tenantable condition before the plaintiff could take up possession. The passage quoted by the learned counsel for the petitioner which appears at page 724 of Woodfall's Law of Landlord and Tenant, is more apposite than the passage quoted by the learned counsel for the respondent with regard to the liability of the tenants and the rights of the landlords to recover damages in case the property is not kept in a state of repair and tenantable condition.
I do not think it is necessary for me In the view 1 have taken to multiply the authorities or to refer to those that have been further cited by the learned counsel for the petitioner. I am of opinion that the decision of the learned District Munsif is wholly wrong and untenable and he ought to have held that the plaintiff was not entitled to recover any rent or any damages for the period for which he laid this suit. On the other hand, the plaintiff should have been directed to seek the proper remedy by taking possession of the property and then to sue the defendant for the recovery of damages that have been caused to the property of the plaintiff. Instead of doing so, the plaintiff has misconceived his remedy and the learned District Munsif has fallen into the error of accepting that that was the proper remedy for the plaintiff.
6. In the result, this petition is allowed with costs. The decree of the lower court is set aside.