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1960 Supreme(All) 104
IN THE HIGH COURT OF ALLAHABAD
S. N. Sahai, J.
MANA DEVI - Appellant
Versus
MALKI RAM - Respondents
Exn. Second Appeal 724 Of 1955
Decided On : 05/05/1960
A.BANERJEE, P.M.Verma
A lessee is entitled to remove temporary constructions made by him even after the determination of the lease, provided he leaves the property in the state he received it.
Headnote:
TRANSFER OF PROPERTY ACT, 1882 - SECTION 108(H) - REMOVAL OF TEMPORARY CONSTRUCTION BY LESSEE - RIGHT TO COMPENSATION - DECREE FOR POSSESSION - SCOPE - SECTION 47 C. P. C. - APPLICATION FOR COMPENSATION - MAINTAINABILITY.
Fact of the Case:
Plaintiff-decree-holder filed a suit for ejectment of defendant No. 1 and defendant No. 2 and for recovery of arrears of rent. Defendant No. 1 did not contest the suit. Defendant No. 2 contested the suit, claiming that he was a stranger and had sub-let the house from defendant No. 1, and that he had made certain constructions in the house with the consent of the plaintiff. The trial court dismissed the plaintiff's suit, holding that defendant No. 2 was the real tenant and that he was entitled to deduct the sum spent on reconstruction from the rent. The lower appellate court reversed the trial court's decision and decreed the plaintiff's suit for ejectment against both defendants. After the decree was executed and possession delivered to the decree-holder, the decree-holder applied for compensation for the removal of a temporary motor garage constructed by defendant No. 2.
Finding of the Court:
The court held that the decree passed in favor of the appellant did not cover the garage removed by the respondent and that the appellant could not claim compensation for it. The court further held that defendant No. 2 was entitled to remove the temporary constructions made by him even after the passing of the decree under Clause (h) of Section 108 of the Transfer of Property Act, 1882. The court also held that the application for compensation under Section 47 C. P. C. was not legally maintainable as it did not relate to the execution, satisfaction, or discharge of the decree.
Issues: 1. Whether the decree passed in favor of the appellant covered the garage removed by the respondent? 2. Whether defendant No. 2 was entitled to remove the temporary constructions made by him even after the passing of the decree? 3. Whether the application for compensation under Section 47 C. P. C. was legally maintainable?
Ratio Decidendi: 1. The decree passed in favor of the appellant did not cover the garage removed by the respondent because the garage was never let out by the appellant and there was no evidence that she had specifically or impliedly included it in her claim. 2. Defendant No. 2 was entitled to remove the temporary constructions made by him even after the passing of the decree under Clause (h) of Section 108 of the Transfer of Property Act, 1882, as he had stepped into the shoes of defendant No. 1 and was entitled to the same rights and liabilities. 3. The application for compensation under Section 47 C. P. C. was not legally maintainable as it did not relate to the execution, satisfaction, or discharge of the decree.
Final Decision: The court dismissed the second appeal with costs and granted leave to file a special appeal.
( 1 ) THIS is a decree-holders 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 plaintiffs 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 plaintiffs 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 plaintiffs suit for ejectment against both the defendants but decreed the plaintiffs 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. e. Mt. Phool Kuer v. Manohar Lal, 1954 All LJ 730 : ( (S) AIR 1955 All 223) 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
