Court affirmed that permissive possession negates claims for damages in occupancy agreements.

JUDGMENT

Unsuccessful plaintiff has preferred the present first appeal challenging the judgment and decree dated 01.07.2019 passed in O.S.No.350 of 2018 on the file of the III Additional District Court, Tiruvallur at Poonamallee.

2. The parties are referred to as per their rankings in the trial Court.

3. Suit is filed for mandatory injunction directing the defendant to remove the old furniture viz. two cots and two chairs abandoned by the defendant in the suit property or alternative decree of recover of possession and for recovery of Rs.9,88,600/- towards damages for use and occupation with subsequent interest at the rate of 12% per annum.

4. The trial Court decreed the suit in part by granting mandatory injunction directing the defendant to remove the old furniture viz. two cots and two chairs from the suit property and dismissed the suit for damages for use and occupation.

5. The brief case of the plaintiff is as follows:

The plaintiff is the absolute owner of the suit property and his wife A.Vanaja is employed in Tamil Nadu Metro Water and the defendant is her colleague. When the plaintiff was constructing a building, the defendant advanced a loan of Rs.8,00,000/- without interest in the year 2013. After completion of construction in the year 2014, the defendant wanted a portion of the building for his residential purpose. Considering the long-term friendship and timely help of the defendant by advancing the loan amount, the plaintiff allowed the defendant to occupy the suit property in June 2014. The possession of the suit property by the defendant was a permissive one and no rent was collected. The plaintiff had paid a part sum of Rs.2,00,000/- towards the loan amount in December 2014 and the balance amount of Rs.6,00,000/- was repaid in July 2015. However, contrary to the understanding, the defendant did not vacate the suit property and hence, the the plaintiff approached the mediators in August 2015 and in their presence, the defendant agreed to vacate the suit property, but, the defendant failed to do the same. Thereafter, the defendant issued a legal notice dated 19.10.2016 stating that he had spend a sum of Rs.5,00,000/- towards the construction of second floor and interior work and demanded the plaintiff to pay the said amount. While so, the defendant vacated the premises by handing over the keys to the plaintiff, but, kept two old damaged chairs and two old wooden cots. Subsequently, the defendant filed a suit in O.S.No.141 of 2018 for permanent injunction and for refund of Rs.5,00,000/-. Hence the suit.

6. The defendant remained ex parte in the suit proceedings.

7. On the side of the plaintiff, the plaintiff examined himself as PW1 and Exs.A1 to A6 were marked.

Findings of the trial Court:

8. When the plaintiff contends that the defendant has already handed over the keys, then, in such context, recovery of possession is found to be contrary to the facts narrated by the plaintiff. Similarly, when the plaintiff contends that the defendant was permitted to be in the suit premises free of rent, then, in such case, the claim for damages for use and occupation of suit premises, is also found to be in contrary and further more, the plaintiff is found to have computed the monthly rent on assumption. Hence, the trial Court finds that the plaintiff is not entitled for recovery of possession or damages for use and occupation, but, entitled for mandatory injunction.

9. The point for determination that arises in this appeal is whether the plaintiff is entitled for damages for use and occupation for a sum of Rs.9,88,600/-?

10. The learned counsel for the appellant/plaintiff would submit that though the plaintiff has given up his claim against damages for use and occupation till the date of repayment of the loan in July 2015, the respondent/defendant is liable to pay damages for use and occupation after the date of repayment of the loan.