Calcutta High Court
Raj Kumar Ghosh & Anr vs Jayashree Ghosh & Ors on 16 August, 2018
Equivalent citations: AIRONLINE 2018 CAL 932
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
G.A. No.2334 of 2017
E.C. No.146 of 2017
RAJ KUMAR GHOSH & ANR.
VS.
JAYASHREE GHOSH & ORS.
G.A. No.2339 of 2017
E.C. No.146 of 2017
RAJ KUMAR GHOSH & ANR.
VS.
JAYASHREE GHOSH & ORS.
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RAJ KUMAR GHOSH & ANR.
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JAYASHREE GHOSH & ORS.
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RAJ KUMAR GHOSH & ANR.
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JAYASHREE GHOSH & ORS
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JAYASHREE GHOSH & ORS.
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JAYASHREE GHOSH & ORS.
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RAJ KUMAR GHOSH & ANR.
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JAYASHREE GHOSH & ORS.
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RAJ KUMAR GHOSH & ANR.
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JAYASHREE GHOSH & ORS.
C.S. No.524 of 1984
For the Applicants
In G.A. No.2334 of 2017 : Mr. Moloy Kumar Ghosh, Sr. Adv.,
For the other Applicants : Mr. Arindam Banerjee, Adv.,
Ms. Arpita Saha, Adv.,
Mr. Avijit Dey, Adv.
For the Decree Holders : Mr. Rohit Das, Adv.,
Mr. Aniruddha Bhattacharya, Adv.,
Mr. Niladri Khanra, Adv.,
Mr. Tanmoy Choudhury, Adv.
Hearing Concluded On : 17.07.2018
Judgment On : 16.08.2018
Soumen Sen, J:- The dispute relates to a very valuable property situated
at the Commercial Hub of Calcutta being Premises No.2, Jawaharlal Nehru Road,
Kolkata - 700013 formerly known as Chowringhee Road. Two suits have been
filed in relation to the said property, namely, Suit No.1059 of 1954 (Deboprasad
Gooptu Vs. Prafulla Kumar Mitra) and C.S. No.524 of 1984 (Shankarananda
Banerjee & Ors. Vs. Smt. Aruna Basu Mullick & Ors.).
For the sake of brevity and convenience Suit No.1059 of 1954 is referred to
as the "first suit" and C.S. No.524 of 1984 as the "second suit".
Shorn of details, Deboprasad Gooptu of No.5/4 Rammoy Road, Calcutta
was the owner of the said property. Probodh Chandra Mitra of No.23, Elliot
Road, Calcutta was a monthly tenant under Deboprasad Gooptu. Probodh
during his lifetime used to carry on a hotel business in the said premises under
the name and style of "Bristol Hotel" as sole proprietor thereof. Probodh died on
12th June, 1949 without leaving any male descendants. After his death, his
nephew Prafulla Kumar Mitra obtained probate of an alleged Will of Probodh and
on a representation that after the death of Probodh, he became the sole
proprietor of the hotel business he was inducted as monthly tenant by
Deboprasad Gooptu since 1950. The rent was reduced from Rs.2800/- to
Rs.2500/- per month by mutual consent. Thereafter, Prafulla continued to carry
on the hotel business in the said premises as a sole proprietor thereof until he
was appointed as Receiver of the said hotel business.
On or about 15th February, 1951, one Nibaran Mitra, a nephew of Probodh
filed an application before the District Judge, Alipore, for revocation of the grant
of probate being Revocation Case No.8 of 1951 in which an order was passed
appointing Prafulla as a Receiver in respect of the said Hotel business. Even
after his appointment as Receiver Prafulla continued to occupy the said premises
as a tenant under Deboprasad Gooptu on the same terms and conditions under
which Prafulla occupied the said premises prior to his appointment as Receiver.
Prafulla was a habitual defaulter. By reason of defaults in payment of rent, large
sums of money became due and payable by him to Deboprasad. Deboprasad by
a notice in writing dated 12th August, 1953 determined the tenancy and called
upon Prafulla to deliver peaceful possession of the premises on the expiry of
month of August, 1953. Prafulla did not make over possession. Deboprasad,
accordingly, filed a suit on 5th April, 1954 in this Court being Suit No.1059 of
1954, inter alia, for decree for khas possession and for recovery of a sum of
Rs.21500/-.
By an order dated 29th May, 1959, the learned District Judge, Alipore
revoked the probate in respect of the Will of Probodh in favour of Prafulla as a
result whereof the original proceedings of probate of the Will of Prafulla had
revived. After the revocation, Prafulla, however, continued to occupy the said
premises and pursued the appeal.
In the first suit on 17th June, 1960, an ex parte decree was passed in
favour of Debo Prosad. Prafulla preferred an appeal being Appeal No.106 of
1960. The appeal was disposed of on 11th September, 1963, on the basis of
terms of settlement filed by the parties. The ex parte decree was set aside as also
all the earlier orders. The said terms of settlement, inter alia, contains the
following terms:-
"3. The payments made by the defendant to the plaintiff, the payments
made by the defendant to the Corporation of Calcutta on account of the rates
and taxes of the premises in suit and the amounts collected by the
Corporation of Calcutta from the defendant's sub-tenants on account of such
rates and taxes upto this day and also payments and disbursements under
Clause 9 hereunder shall be dealt with and/or adjusted as follows:
(a) All payments made by the defendant to the plaintiff or to his
Solicitors after the institution of the suit, and upto this day and also
such payments under Clause 9 hereof will be regarded as payments
made to the plaintiff by the defendant towards the plaintiffs dues, if
any, in this suit.
(b) All payments made or to be made by the defendant to the
Corporation of Calcutta and/or collected or to be collected by the
Corporation of Calcutta from his sub-tenants on account of rates and
taxes of the premises in suit including payments of such rates and
taxes to be made under Clause 9 hereof are to be adjusted against the
plaintiff's dues, if any, in this suit provided that the plaintiff will be
entitled to contend that the plaintiff is not liable to pay or bear the
amount of any increase in or enhancement of the Municipal rates and
taxes in respect of the suit premise, since the filing of the suit and the
defendant will be entitled to dispute all such contentions of the
plaintiff.
4. The suit is sent back to the original court for trial.
5. Subject to Clause 9 hereunder, the defendant will be entitled to
defend the suit.
9. There will be an order under Section 14(4) of the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950 that the defendant
shall monthly and every month deposit in Court the sum of Rs.2,500/- for
rent of the premises in suit, after deducting therefrom, the sum of Rs.500/-
monthly and every month, towards payment of Corporation Rates and Taxes
of the said premises. The first of such deposits for the month of August to be
made within 15 days of the date hereof, and for the month of September by
the 15th October, 1963 and thereafter by the 15th of every succeeding month.
On failure of deposit as aforesaid within the time as aforesaid the defence
against ejectment in this suit be struck out. The plaintiff may, from time to
time apply to the Court for permission to withdraw the amounts so deposited
and the defendant will have no objection to such withdrawal. The Registrar
O.S. to accept such deposits on behalf of the Court.
12. (a) By the use of the word "rent" in Clause 9 of these presents the
plaintiff does not admit the continuation of the defendant's tenancy.
(b) By the use of the expression "sub-tenant" in these presents the
plaintiff does not admit that there are (i) any sub-tenants of the
defendant (ii) or that the sub-tenancies, if any, are valid or binding on
the plaintiff."
During the pendency of the suit on 3rd April, 1965, Prafulla died and
thereafter by an order dated 14th August, 1965 the death of Prafulla was recorded
and his heirs and legal representatives, namely, Subarnabala Mitra, since
deceased, Smt. Aruna Basu Mullick and Pramil Kumar Mitra, the defendants
Nos.1 and 2 herein, were substituted in the place and stead of the said Prafulla
Kumar Mitra. The Will of Probodh remained unprobated.
During the pendency of the first Suit, Debaprasad, died leaving a Will
dated July 16, 1963. Dhruba was the sole Executor under the Will of his father
Debaprasad Gooptu and also sole beneficiary. Dhruba obtained the Probate of
the said Will on October 11, 1977.
Aruna Basu Mullick claimed to be the legal representative of Prafulla by
virtue of an alleged Will left by Prafulla. Subarnabala and Pramil were the wife
and son of Prafulla who would be the heirs and legal representatives of Prafulla
on intestacy. Aruna continued to remain in occupation of the property in
question and had been paying rent initially to the original plaintiff and,
thereafter, to Druba Gooptu, the son of Deboprasad until December, 1977. In
the meantime, Dhruba appears to have entered into an agreement dated 22nd
November, 1974 with the then partners of Bando & Co. who were the original
plaintiffs in the second suit authorising them to conduct the first suit at their
costs and expenses in the name of Dhruba till its final conclusion and pursuant
thereto on 22nd November, 1974, Dhruba executed a general power of attorney in
favour of Bando & Co. One of the conditions of the said agreement was that
Bando & Co. shall keep in deposit with the lessor a sum of Rs.1 lakh as security
without any interest being the price of the building materials of the demised
premises till such times vacant possession of the demised premises is obtained
by the lessee and such sum would be appropriated by the lessor after vacant
possession of the demised premises is obtained by the lessee. Pursuant to the
said agreement Bando & Co. deposited a sum of Rs.1 lakh with the lessor.
Thereafter, Dhruba Gooptu executed a deed of lease on 6th February, 1978 in
favour of Bando & Co. for a term of 99 years which, inter alia, contains the
following terms:-
"a) That the lessee paying the rent hereby reserved and observing and
performing the several covenants and stipulations herein contained
and on their part to be paid observed and performed shall quietly and
peaceably held and enjoy the demised premises with the building
constructions structures erections to be made and additions and/or
alterations thereto during the term without any interruption by the
lessor or any person or persons lawfully or equitably claiming from
under or in trust for the lessor.
b) The Lessee shall be entitled to conduct the suit being Suit No. 1059
of 1994 pending in the High Court of Calcutta in the name and on
behalf of the lessor provided however all costs of the pending suit
shall hereafter be borne by the lessee."
On or about 22nd February, 1983, Dhruba Gooptu, the substituted plaintiff
in the first suit died leaving a Will whereby he appointed Shri Shankarnarayan
Gooptu and Naranarayan Gooptu, the defendants Nos.3 and 4 as his executors.
The said executors, however, did not accept the rent from the plaintiff in terms of
the said lease. Since, the defendants Nos.3 and 4, after the death of Dhruba
Gooptu did not take any steps for substitution of their names in the place and
stead of the said Dhruba Gooptu as plaintiffs in the said Suit No.1059 of 1954,
the plaintiffs filed an application on 20th May, 1983 for recording the death of
Dhruba Gooptu and for substitution of the names of the plaintiffs as plaintiffs in
respect of the said suit. The said application was, however, rejected by the
Court. The plaintiffs contended that the plaintiffs have paid a sum of Rs.1 lakh
as security in terms of the said lease and rent at the rate of Rs.2000/- per month
to the said Dhruba Gooptu till his death on 22nd February, 1983 are entitled to
exercise all its rights under the indenture of lease which the defendants are
denying and are interested to deny. The plaintiffs alleged that the hotel business
has been closed since long and the entire demised premises has been sub-let by
the defendant nos. 1 and 2 to various tenants at a low rents upon receiving huge
amount as 'Salami'. The plaintiffs claimed that the defendant nos. 1 and 2 were
collecting rents, issues and profits from the tenants and/or occupiers of the said
property much exceeding the sum of Rs.2000/- per month and are
misappropriating the said income thereof for their own use and benefits.
Inasmuch as the tenancy of Profulla Kumar Mitra was determined by notice
dated 12th August, 1953 the defendant nos.1 and 2 being heirs and legal
representatives of the deceased are bound by the same. The lease is valid and
subsisting and none of the defendants have any right to interfere with the
exercise of right by the plaintiffs as lessee in respect of the said premises.
Under such circumstances, in or about July 25, 1984, the plaintiff filed the
second suit for recovery of possession from the defendant Nos.1 and 2 and a
declaration that the deed of lease dated 6th February, 1978 between Dhruba and
the partners of Bando & Company are subsisting and binding upon the
defendant Nos.3 and 4. The cause of action in the suit would appear from
Paragraph 38 of the plaint which reads:-
"38. Plaintiffs state that the tenancy right of the said Prafulla Kumar
Mitra, since deceased was duly determined by notice dated 12th August,
1953 as aforesaid and in the premises the defendant nos.1 and 2 have no
right whatsoever to remain in possession of the said premises and/or to
collect the rents, issues and profits from the tenants of the demised premises
as aforesaid. Even if they succeed in establishing that they are the rightful
heirs of the said Prafulla Kumar Mitra they cannot claim any protection
under the West Bengal Premises Tenancy Act, 1956 as they have defaulted
in payment of rent from December, 1977 and have wrongfully sublet the said
premises."
In the suit, at a much later time, the defendant No.1 had entered
appearance and filed a written statement on December 20, 2016 in which in
Paragraphs 6, 11 and 12 of the Written Statement, the said defendant had raised
an objection with regard to maintainability of the suit and asserted that
subletting had taken place during the lifetime of Probodh. The said Paragraphs
read:-
"6. The defendant denies and disputes the allegations made in
paragraphs 33 and 34 of the plaint as if specifically traversed. This
defendant states that the entire demised premises has been sublet
since long time back much before the original defendant No.1 became
the landlady inasmuch as the original tenant Probodh Chandra Mitra
was permitted by the then landlord Deva Prasad Gooptu to sub-let the
said premises.
11. The suit is liable to be dismissed in limine inasmuch as the suit is
barred by the West Bengal Premises Tenancy Act, 1956.
12. The present plaintiffs are not entitled to pursue the instant suit in
place and stead of the original plaintiffs or to claim any relief
whatsoever."
The other defendants in spite of service of summons did not enter
appearance in the suit and contest the suit.
On such defences being disclosed in the Written Statement, Justice
Shivakant Prasad at the time of trial of the suit by an order dated 11th January,
2017 framed the following issues for trial:-
"1. Is the suit maintainable ?
2. Is the suit barred by law of limitation ?
3. Whether the terms, conditions and clauses as contained in the registered
indenture of lease dated February 6th, 1978 are valid, subsisting and binding
upon the present plaintiffs of the instant suit ?
4. Whether the defendant Nos. 1 and 2 have any right, title or interest over
and above premises Nos.2, Jawaharlal Nehru Road, Kolkata ?
5. Whether the defendant Nos. 1 and 2 have any right to collect rents, issues
and profits from premises No.2, Jawaharlal Nehru Road, Kolkata?
6. Whether the tenancy created by Debaprasad Gooptu in favour of Profulla
Kumar Mitra, both since deceased, have been determined and the same is
binding on the heirs of Prafulla Kumar Mitra ?
7. Whether the plaintiffs are entitled to the reliefs as claimed in the suit ?
8. To what other reliefs, if any, are the plaintiffs entitled?"
This suit has been compromised between the plaintiffs and the defendant
No.1 on 3rd May, 2017. The names of the defendant Nos.2, 3 and 4 were
expunged. The terms of settlement, inter alia, contains the following terms:-
a) It is declared that the indenture of lease dated February 5, 1978 is
binding on all concerned including the estate of Prafulla Kumar
Mitra, since deceased and also upon their agents, assigns and
representatives and persons claiming through or under them.
b) It is declared that the tenancy created by Debaprasad Gooptu in
favour of Prabod Chandra Mitra in respect of the said premises no.
2, Jawaharlal Nehru Road has been duly determined and / or has
been terminated by due process of law and the same is also binding
upon the heirs and legal representatives of Prabod Chandra Mitra.
c) It is declared that the plaintiff shall be entitled to recover peaceful
and vacant possession of the said premises by evicting the
defendant no. 1 and the persons in possession and occupation of
the said premises to the defendant no. 1 or her predecessor-in-
interest.
The plaintiff shall be entitled to recover possession from the
occupants of the said property by executing the decree to be
passed herein.
d) The defendant nos. 2, 3 and 4 "should be deemed to have been
expunged as party defendant in this suit."
e) No relief is being claimed as against them or any of them.
f) The instant suit shall stand dismissed against the said defendants.
On the strength of the decree passed on such terms this execution
application has been filed. In this proceeding, the decree-holder prayed for
eviction of a large number of occupants who had been in occupation in different
portions of the premises through Prafulla and thereafter through Aruna.
The issue which now arises for consideration is whether this decree is
binding on the large number of occupants who had come to occupy different
portions of the premises in question either through Probodh or through Aruna
Basu Mullick and if they could be evicted in execution of the said decree.
The learned Counsel for the parties has raised three principal objections to
the enforcement of the said decree upon the occupants. Firstly, the cause of
action in the earlier suit, namely, Suit No. 1059 of 1954 has extinguished with
the death of Dhruba and the said suit has abated. The cause of action of the suit
does not survive any further and at least not available to the present plaintiffs.
Secondly, the suit was filed without notice to the defendant No.1 as well as upon
the occupiers of the said building, accordingly, the said suit is not maintainable
under the provisions of the West Bengal Premises Tenancy Act. Thirdly, a lease
having already created in favour of Probodh by Deboprasad and the said lease
continued to remain in force at the time when Dhruba had entered into a lease
agreement with Bando & Company, the subsequent lease is void as concurrent
lease in law is not permissible and, accordingly, Bando & Company could not
have filed a suit for eviction of the defendant No.1 or the other defendants. The
creation of concurrent lease in favour of the plaintiffs is illegal and not
enforceable.
The arguments on behalf of the obstructionists are made by Mr. Moloy
Kumar Ghosh, Senior Advocate and Mr. A.K. Mukherjee, Advocate. The principal
argument is made by Mr. Ghosh representing the partners of M/s. J. Biswas &
Co. (hereinafter referred to as "JBC"). The partnership firm claims tenancy in
respect of the suit premises since 1952.
Although, in paragraph 3 of the application, it is stated that JBC was
inducted as a monthly tenant of the suit premises in the year 1962 by one
Prafulla, predecessor-in-interest of the defendant No.1, Mr. Ghosh in course of
submission has produced the following documents to show that JBC was in
occupation of the said building since 1952:-
i) Licence dated November 14, 1952 issued by Chief Inspector of
Explosives in India in favour of JBC for sale of gunpowder etc.;
ii) Licence for arms and ammunition dealers issued in favour of JBC
in the year 1965, wherein there is referenced of a licence issued
in the year 1949;
iii) Registered partnership deed of 1993, wherein earlier registered
deed of partnership deed of 1962, is mentioned;
iv) Deposit slip filed before the Rent Controller for May, 1972;
v) Trade license for the year 1976-77 and 2017-18; and
vi) Sales Tax deposit slip for the year 1983.
Subsequently upon the death of Prafulla Kumar Mitra on 3rd April, 1965
Mrs. Aruna Basu Mallick started receiving rents at the rate of Rs.350/- per
month for the suit premises. Upon the death of Aruna Basu Mallick rents were
received by the defendant no.1 on behalf of the estate of Aruna Basu Mallick,
since deceased. The rent for the suit premises was increased to Rs.1000/- per
month, JBC has disclosed the rent receipts for the month of January to June
2017. JBC contends that it is also making payment of maintenance charges,
occupier's share of taxes and surcharge for the suit premises.
In proof of possession, Mr. Ghosh has in addition to the aforesaid
documents have referred to the minutes of the meeting dated 12th July, 1985
held by the Special Officer appointed by this Court in the present suit and rent
receipts of diverse dates starting from 2nd July, 1994 till 1st April, 2017 issued by
Smt. Aruna Basu Mallick, the original defendant No.1 in favour of JBC. Mr.
Ghosh submits that the applicant was unaware of any of the pending
proceedings and it is from the copies of the documents disclosed by the plaintiff
No.1 in this proceeding, for the first time, the applicants have come to know that
on 25th July, 1984, the present suit being Suit No.524 of 1984 was instituted by
Sankarananda Banerjee, Sumit Banerjee and Sambhu Banerjee, the original
plaintiffs filed the suit against Smt. Aruna Basu Mallick and others claiming
various reliefs.
Mr. Ghosh submits that the plaintiffs without getting any formal decree for
declaration as claimed in paragraphs (a), (b) and (c) of the plaint filed in C. S. No.
524 of 1984, have got the decree for possession.
Mr. Ghosh has referred to Paragraph 38 of the plaint in C.S. No.524 of
1984 and submits that in the said paragraph, the plaintiffs have alleged two
things, namely:-
i) The tenancy rights of Prafulla Kumar Mitra, since deceased was duly
determined by the notice dated August 12, 1953 and the present
defendant no. 1 and the original defendant no. 2 have no right
whatsoever to remain in possession of the said premises and / or to
collect the rent, issues and profit from the tenant of the demise
premises;
ii) Even if the present defendant no. 1 and the original defendant no. 2
succeed in establishing that they are the rightful heirs of the said
Prafulla Kumar Mitra, they cannot claim any protection under the
West Bengal Premises Tenancy Act, 1956 as they have defaulted in
payment of rent from December 1977 and have wrongfully sublet the
said premises.
On the basis of the said two alleged causes of action the plaintiffs have
filed the suit being C.S. No. 524 of 1984 against the defendants therein.
It is submitted that no decree could have been passed in the second suit
on the basis of the notice dated 12th August, 1953 issued by Prafulla determining
the tenancy of Debo Prasad on the ground of default in payment of rent and not
on any other grounds. However, the instant suit has been filed both on the
ground of default in payment of rent and subletting. These grounds are not
available to the plaintiffs. In any event, no notice under Section 13(6) of the West
Bengal Premises Tenancy Act, 1956 has been served upon the defendant Nos.1
and 2.
Mr. Ghosh has referred to Section 13(6) of WBPT Act, 1956 which
provides, inter alia, that notwithstanding anything in any other law for the time
being in force, no suit or proceeding for the recovery of possession of any
premises on the ground of--
(a) Subletting by the tenant without the previous consent in
writing of the landlord under Section 13(1)(a) of WBPT Act, 1956,
and
(b) Default of the tenant in payment of rent under Section
13(1)(i) of WBPT Act, 1956;
shall be filed by the landlord unless he has given to the tenant one
month's notice expiring with a month of the tenancy.
Mr. Ghosh has referred to the written statement of the defendant No.1
affirmed on 20th December, 2016 to show that the defendant No.1 has specifically
raised the maintainability of the suit.
It is submitted that at the time of settlement of the issues, all such
objections were considered and specific issues were framed on maintainability of
the suit, limitation and determination of tenancy by the notice dated 12th
August, 1953.
After the death of Dhruba on February 22, 1983, Shankar Narayan Gooptu
(the defendant no. 3 herein) and Nara Narayan Gooptu (the defendant no. 4
herein), the Executors appointed under the Will of the said Dhruba did not make
any application for substitution of their names in place and stead of the said
Dhruba as plaintiff in Suit No. 1059 of 1954.
The original plaintiffs in the second suit, as the lessee of the said premises
made an application on or about May 20, 1983 in the first suit for recording the
death of the said Dhruba and for substitution of their names as the plaintiffs in
the first suit but the said application was rejected.
Accordingly, the first suit had abated after the death of Dhruba.
After abatement of the first suit no fresh suit can be brought on the self-
same cause of action based on the notice dated August 12, 1953 in view of the
provision of Rule 9(1) of Order XXII of CPC, 1908.
In any event in view of Section 3 of the Limitation Act, 1963, this Hon'ble
Court had or has no jurisdiction to pass any decree in the second suit on the
basis of the alleged determination of the tenancy by Prafulla by a notice dated
August 12, 1953. Inasmuch as the present suit being C.S. No. 524 of 1984 was
filed on or about July 25, 1984, i.e., after more than 30 years for the alleged
cause of action which allegedly arose on August 12, 1953.
It is submitted that this Court could not have passed the decree dated 3rd
May, 2017 in terms of the terms of settlement without deciding, inter alia -
I) Whether C. S. No. 524 of 1984 is barred by law of limitation?
II) Whether the tenancy created by Debaprasad Gooptu in favour
Prafulla Kumar Mitra, both since deceased, has been determined and
the same is binding on the heirs of Prafulla Kumar Mitra?
The present plaintiffs and the present defendant no. 1, the signatories to
the said purported terms of settlement, have committed fraud on this Hon'ble
Court by suppressing the material fact that by the order dated February 15, 2016
passed by this Court, the Testamentary Suit No. 2 of 2001 arising out of PLA No.
225 of 1999 (In the Goods of : Aruna Basu Mullick, deceased) in which the
present defendant no. 1 was appointed as the Administrator pendente lite was
dismissed for default and accordingly as on the date of the passing of the said
decree dated May 3, 2017 Jaysree Ghose could not have represented the estate of
Smt. Aruna Basu Mullick, the original defendant no. 1 as Administrator
pendente lite thereof.
In the purported terms of settlement, Jayshree Ghose, the present
defendant no. 1 has been described as "being the administrator pendente lite to
the estate of Smt. Aruna Basu Mullick" and the decree dated May 3, 2017 has
been passed in C. S. No. 524 of 1984 in accordance with the said terms of
settlement.
Inasmuch as the Testamentary Suit has been dismissed, the application
for Grant of Probate (PLA No. 225 of 1999) does not survive and the order passed
under Section 247 of the Indian Succession Act, 1925 appointing the present
defendant no. 1 as the Administrator pendente lite over and in respect of the
estate of Smt. Aruna Basu Mullick, deceased also does not survive. Accordingly,
the present defendant no. 1 cannot represent herself as the legal representative
of Smt. Aruna Basu Mullick, deceased in accordance with Section 211 of the
Indian Succession Act, 1925.
The decree dated May 3, 2017 is illegal, null and void, not binding and
inexecutable as against the applicants and the tenancy of the applicants in the
said premises.
Mr. Ghosh has referred to Clauses 7 and 8 of the said Lease Deed which
read:-
"7. The Lessee approached the Lessor to grant him a lease of the demised
premises with the burden of the said suit upon payment of a monthly rent of
Rs.2,000/- at present for the first five years which will be increased to
Rs.3500/- on the lessee getting second possession of the demised premises
and the Lessor agreed to the said proposal on terms and conditions
hereinafter appearing.
8. By an Indenture dated 22nd December, 1974 the Lessor authorised
the Lessee to conduct the said suit at the cost and expenses of the Lessee in
the name of the Lessor till its final conclusion and pursuant the to the Lessor
on the 22nd day of November, 1974 executed a General Power of Attorney in
favour of the lessee."
Mr. Ghosh submits that it is clear from the aforesaid recital that the Lessor
and the Lessee entered into an agreement (i.e. Indenture dated December 22,
1974) to enable the Lessee getting vacant possession of the demised premises by
conducting Suit No. 1059 of 1954 instituted by the Lessor for eviction of Prafulla
who was the monthly tenant in respect of the said premises.
The rights and liabilities of the Lessor and the Lessee under Section 108 of
the Transfer of Property Act, 1882 is subject to, inter alia, a contract to the
contrary between the Lessor and Lessee of immovable property.
Under clause (b) of Section 108 of the Transfer of Property Act, 1882 the
Lessor is bound on the Lessee's request to put him in possession of the property
in absence of a contract to the contrary between the Lessor and the Lessee.
In the present case, there is nothing on record to show that the original
plaintiffs in C. S. No. 524 of 1984 made any request to the Lessor to put them in
possession as required under clause (b) of Section 108 of the Transfer of Property
Act, 1882.
Moreover, in the present case the Indenture dated February 6, 1978 itself
shows that there was a separate agreement between the Lessor and the Lessee
contained in an Indenture dated December 22, 1974, as mentioned in Clause 8 of
the Indenture dated February 6, 1978 whereby the Lessor authorised the Lessee
to conduct the Suit No. 1059 of 1964 for eviction of Prafulla Kumar Mitra and
other reliefs.
The present plaintiffs in C. S. No. 524 of 1984 have not disclosed the
Indenture dated December 22, 1974 and the General Power of Attorney dated
November 22, 1974 as mentioned in Clause 8 of the said Indenture dated
February 6, 1978.
The said General Power of Attorney dated November 22, 1974 became
inoperative on the death of Dhruba Gooptu on or about February 22, 1983.
The said being Suit No.1059 of 1954 for eviction of Prafulla Kumar Mitra
has also abated in 1983.
It is submitted that the object of the Indenture dated February 6, 1978 is of
such a nature that, if permitted, it would defeat the provision of section 13(6) of
the WBPT Act, 1956 and consequently, the object of the said Indenture dated
February 6, 1978 is unlawful. The object of the said Indenture dated February 6,
1978 being unlawful, the lease purported to have been granted by Dhruba
Gooptu (the Lessor therein) in favour of the original plaintiff of C. S. No. 524 of
1984 (the Lessee therein) is void and this Hon'ble Court has no jurisdiction to
pass the Decree dated May 3, 2017 in C. S. No. 524 of 1984 which arises out of a
void lease under the said Indenture dated February 6, 1978.
Mr. Ghosh in this context has relied upon a decision of the Division Bench
of this Court in Saleh Abraham v. Manekji Cowasji reported at 75 Indian
Cases 521: AIR 1924 Cal 57 and submits that in the said decision it has been
held that if the object of lease was to defeat the provisions of Rent Act, such
object being unlawful the lease would be void.
In the present case, prior to 1953 the said premises was let out to
Prafulla and Prafulla continued to remain as a monthly tenant under Debo
Prasad. After abatement of the first suit in 1983, the original plaintiffs could
not have filed the second suit in 1984 on the basis of their right as lessee
under Dhruba and on the basis of the same cause of action on which the
first suit was filed. The alleged right of the plaintiff in the second suit if any
is on the basis of the "concurrent lease" under Dhruba simultaneously with
the monthly tenancy of Prafulla. Concurrent lease in respect of the self-
same premises is not permissible under our law.
Mr. Ghosh in this regard has relied upon a Division Bench judgment
of our Court in Sambhunath Mitra and Ors. v. Khaitan Consultant Ltd.
and Ors. reported at AIR 2005 Cal. 281 (para 30, 31, 32 & 33) and
submits that in paragraph 33 of the said decision it has been held that that
the Lessor can create a third party's interest in the leasehold property either
by creating sale deed or deed of exchange conveying Lessor's right or
making gift or creating mortgage, but having himself divested the right of
enjoyment of the property and reserving only Lessor's right, the Lessor
further cannot create any lease.
Mr. Ghosh concludes by submitting that in view of overwhelming
evidence to show that JBC was in possession since 1952, the existence of a
concurrent least at the time when the suit was instituted, the original suit
filed by Deboprasad had abated and the provisions of the West Bengal
Premises Tenancy Act were not followed, the decree is not enforceable
against the present occupants and the decree is declared to be null and
void.
Mr. A.K. Mukherjee, the learned Counsel appearing for the other
applicants occupants have adopted the submission made by Mr. Ghosh.
However, in addition to the submission made by Mr. Ghosh, has submitted
that the judgment-debtor No.1 did not have the required authority and
capacity to enter into such terms of settlement, in view of the fact that on
15 th February, 2016, the probate proceeding filed by the judgment-debtor
No.1 in respect of the Will of Smt. Aruna Basu Mallick was dismissed for
default being Testamentary Suit No.2 of 2001, and the same has not been
restored till date. In such situation, the judgment debtor no. 1, who had
been impleaded in the plaint filed in C.S. No. 524 of 1984 merely acted as
an administrator to the estate of Smt. Aruna Basu Mullick and lost her right
to enter into any such compromise on behalf of the estate of the deceased in
any manner. As on 3 rd May 2017, when the terms of settlement were signed
and a consent decree was passed in terms thereof, the judgment debtor no.
1 had no right to give such consent or represent the said estate. Mr.
Mukherjee submits that the terms of settlement is also vitiated by Section
20 of the Indian Contract Act, 1872 and is a void agreement, as on the date
the terms of settlement was executed, the judgment-debtor No.1 ceased to
act as "the administrator pendente lite to the estate of Smt. Aruna Basu
Mallick" in view of dismissal of the probate proceeding on 15 th February,
2016 and this mistake of fact has vitiated the said agreement.
It is submitted that the terms of settlement was signed at a point of
time when there was no existence of any partnership firm.
Sankarananda Banerjee, Narayan Chandra Banerjee, Sambhu Nath
Banerjee, Samir Kumar Banerjee, Hema Prava Devi and Uma Rani Banerjee
were the original partners of Bando & Co. Subsequently, on 7 th November
2014, a notice of change in the constitution of the firm was filed to bring on
record Sambhu Nath Banerjee and Rita Banerjee as the partners of the firm,
even while Sambhu Nath Banerjee had already expired on 4 th April 2005.
The date of induction of Rita Banerjee in the firm is unknown. By another
notice of change in the constitution of the firm filed on the same date i.e. 7 th
November 2014, the names of Rita Banerjee and Mita Banerjee were
recorded as the partners, even while the same document goes on to record
that Rita Banerjee and Mita Banerjee both retired from the firm way back as
on 2nd April 2014. It was on the same date i.e. on 2 nd April 2014 that the
decree holders were inducted into the firm and the notice of change in the
constitution of the firm was filed on 17th December 2014, however, the same
was registered with effect from 28 th April 2014. It is thus evident that at the
time when the present decree holders were inducted into the firm, there was
no partnership firm alive in the name of Bando & Co. and as such, there
was no way that the present decree holders could have become the partners
in a dead firm.
Questioning the manner in which the said compromise was entered
into, Mr. Mukherjee submits that the conspicuous absence of the defendant
Nos.3, 4 and 5 and the mere recording in the terms of settlement to the
effect that "the defendant Nos. 2, 3 and 4 in facts and circumstances stated
hereinabove should be deemed to have been expunged as party defendants
in this suit and ... the instant suit shall stand dismissed as against the said
defendants" would not suffice to make the terms of settlement a valid
compromise between the parties to the suit under the provisions of Order 23
Rule 3.
Mr. Mukherjee refers to the decision of the Hon'ble Supreme Court in
Dwarka Prasad Agarwal Vs. B.D. Agarwal reported at (2003) 6 SCC 230
and submits that the law has been settled by the Hon'ble Supreme Court by
stating that the terms of settlement needs to be signed by all the parties to
the dispute and unless all the parties, put their signature in the manner as
required under Order 23 Rule 3 of the Code of Civil Procedure, it cannot
give rise to a valid settlement.
Mr. Mukherjee has referred to the decision of our Court in Malchand
Boid versus Osman Ali Mandal reported at AIR 1924 Calcutta 159 that
"one test may be applied to determine whether the agreement or
compromise is lawful; were the parties competent to enter into the
agreement or compromise in order to achieve the purpose they had in view?"
Applying the test to the facts of the present case, it is apparent that the
judgment debtor no. 1 having had no right to enter into the terms of
settlement as on 3 rd May 2017, the settlement or compromise arrived at
between the parties was unlawful, and hence, unenforceable.
Mr. Mukherjee has also referred to Mulla's Commentary on the
Transfer of Property Act 1882 (12 th Edition, page 852), in which it is
stated that the lessee can maintain a suit on his lease for possession
against the lessor and against any third person who may be in possession.
Accordingly, the instant suit being C.S. No. 524 of 1984 is ex facie bad,
illegal and incompetent owing to non-impleadment of the actual occupants
of the building. The suit being incompetent, any compromise decree or any
other decree passed in the suit would be ex facie void and a nullity in law.
The applicants, being in actual physical possession, whose possession is
being sought to be disturbed by such void decree, can obstruct the
execution of the said decree and also seek declarations that the decree is
inoperative and null qua the applicants. This the applicants can do without
being required to prove any independent right. The bar contemplated in the
judgment in Biswanath Poddar versus Archana Poddar reported in
(2001) 8 SCC 187 would not be applicable in the instant case, since the
non-notification of sub tenancies of the applicants would not obviate their
impleadment in a suit filed by the lessee. It is only if the head lessor sues
the lessee for possession that non-impleadment of non-notified sub-tenants
would not vitiate the suit and would make such non-notified sub-tenants
bound by the decree.
Mr. Mukherjee has referred to a Division Bench judgment of the
Kerala High Court in N. Subhakaran Vs. K. Rajamany reported at 1996
AIHC 1024 (DB) and submits that in the said decision it was held that a
compromise decree, based on an agreement between two parties, can be
attacked by another party who is affected by it on the ground that the
agreement itself is vitiated.
It is submitted that if a decree is a nullity, an obstructionist can raise
such objection notwithstanding the fact that the obstructionist has no
independent right of possession. Once such objection is raised, the burden
lies on the decree holder to establish that the decree put in execution is a
valid decree. The phrase "all questions" in Order 21 Rule 101 is followed by
words that are merely illustrative and the same is not exhaustive. Hence the
question as regards the validity of the decree to be executed falls within the
purview of "all questions" to be decided by the executing court in an
application under Order 21 Rule 101.
In this context, Mr. Mukherjee relied upon the decision of the Bombay
High Court in Mani Nariman Daruwala Vs. Phiroz N. Bhatena reported at
AIR 1991 Bombay 328.
Mr. Mukherjee submits that the aforesaid materials justified a full-
fledged trial if required. Even otherwise it is clear that the decree is not
enforceable against the present applicants.
Per contra, Mr. Rohit Das, learned Advocate appearing on behalf of the
plaintiff has submitted that the Decree Holders and/or their predecessors-
in-interest (being the partners of the partnership firm, M/s. Bando & Co.)
had the right to obtain vacant possession of the Suit Premises as lessees
under the registered Indenture of Lease dated February 6, 1978 (hereinafter
referred to as the "Lease Deed") and therefore had the right to institute the
suit, being C.S. No. 524 of 1984.
Mr. Das has referred to the Testatum and Habendum of the lease
deed, which states as follows:
"NOW THESE PRESENTS WITNESS that:- I. In consideration of the
rent and of the covenants and agreement hereinafter contained and on
the part of the Lessee to be paid observed and performed the Lessor
doth hereby demise unto the Lessee ALL THAT ... [Description of the
Suit Premises] ... TOGETHER WITH all rights liberties privileges and
benefits thereunto belonging to and all enjoyments in connection
therewith TO HAVE AND TO HOLD the demised premises hereby
demised or expressed or intended so to be unto the Lessee for a term of
ninety nine years commencing from the Sixteenth day of February 1978
YIELDING AND PAYING unto the Lessor there-for for the first five years
monthly rent of Rs. 2,000/- (Rupees Two thousand only). After the
demised premises is made vacant by evicting the said defendant
therefrom and on such eviction and making over vacant possession of
the demised premises to pay rent to the Lessor at the rate of Rs.
3,500/- (Rupees Three thousand five hundred only) per month from the
date of making over such vacant possession till the expiration of the
said term of 99 years..."
It is submitted that clauses 7 and 8 of the lease deed are in the nature
of introductory recital and narrative recital respectively and does not define
the rights and liabilities of the lessor and lessee. Mr. Das has referred to
clause (c) Clause II, of the Lease Deed which states that:
"The Lessee shall be at liberty to demolish the building contained
in the demised premises and erect new building or buildings on the
grounds thereof or portions thereof or to make additions and alterations
to the existing premises as they may desire..."
Mr. Das submits that under the said clause the lessee is given the liberty
to demolish the building and erect new building or buildings on the said
premises.
Mr. Das submits that Clause III sub-clause (a) of the Lease Deed makes the
right of the Lessee to obtain vacant possession of the Suit Premises clear and
unambiguous. He further submits that the use of the word "entitled to" in sub-
clause (b) of Clause III makes it clear that the right, power and/or authority of
the Lessee to continue Suit No. 1059 of 1954 was one of the remedies available to
the Lessee to obtain vacant possession and not in derogation of or a limitation on
all other rights and remedies available at law to the Lessee to obtain vacant
possession of the Suit Premises.
It is submitted that Clause IV, sub-clause (a) of the Lease Deed makes it
clear that the right of the Lessor to terminate the Lease Deed and re-enter the
Suit Premises in case of non-payment of rent or any other breach by the Lessee,
only arises once the Lessee has obtained "complete vacant possession of the
demised premises from the Lessor on eviction of the defendant and other
occupiers from the demised premises" and that too after the "Lessor gives notice
in writing by registered post to the Lessee specifying the particular breach
complained of and requesting the Lessee within three calendar months from the
date of service of the notice to remedy the breach and the Lessee fails within
three calendar months from the date of service of such notice to remedy the
breach".
Mr. Das has further submitted that, Clause IV, sub-clause (b) of the Lease
Deed allows the lessee to assign or sub-let the demised premises. All the
aforesaid provisions of the Lease Deed make it amply clear that when Suit No.
1059 of 1954 abated due to no fault on the part of the Decree Holders and/or
their predecessors-in-interest, and in spite of their best efforts. In any event, the
plaintiffs had an independent right as owners of an "interesse termini" and an
independent cause of action to institute the instant suit, being C.S. No. 524 of
1984, for evicting the Judgment Debtor and/or her predecessors-in-interest who
had wrongfully continued in occupation of the Suit Premises, and whose status
was no better than a tenant by sufferance, a tenant holding over and/or a
trespasser. Such right of the Decree Holders and/or their predecessors-in-
interest is also recognised at common law and under the provisions of Section
108(A)(b) read with Section 109 of the Transfer of Property Act, 1882. In this
regard, Mr. Das has relied on the following judgments:-
(i) Prankrishna Dey vs. Biswambar Sein, reported in 2 B.L.R. A.C.
207;
(ii) Achayya vs. Hanumantrayudu, reported in (1891) I.L.R. 14 Mad.
269;
(iii) Bishen Sarup vs. M. Abdul Samad, reported in AIR 1931 All. 649;
(iv) Md. Fazihzzaman vs. Anwar Husain, reported in AIR 1932 All.
314;
(v) Janab E.M. Ghulam Dastagir Saheb vs. Marudai Pillai and Anr.,
reported in AIR 1948 Mad. 409; and
(vi) Kondavati Naganna vs. Matukumilli Satyanarayana & Anr.,
reported in AIR 1958 A.P. 711.
The Learned Counsel has distinguished the decisions on concurrent lease,
namely, Sambhunath Mitra (supra), Sheikh Songsor Ali (supra) by submitting
that the said two decisions lay down the proposition that when there is already a
valid and subsisting lease in favour of one tenant, a second lease by the landlord
in favour of another person is invalid. However, in the facts of the instant case,
the tenancy in favour of the Judgment Debtor's predecessor-in-interest had
already been determined and Suit No. 1059 of 1954 instituted by the landlord
against the Judgment Debtor's predecessor-in-interest was already pending,
when the registered Indenture of Lease dated February 6, 1978 was executed by
the landlord in favour of the Decree Holders and/or their predecessors-in-
interest. The status of the Judgment Debtor and/or her predecessors-in-interest
was no better than a tenant by sufferance, a tenant holding over and/or a
trespasser.
Mr. Das has submitted that the judgment-debtor or her predecessors-
in-interest had acquired no right under the West Bengal Premises Tenancy
Act, 1956 and, therefore, the registered deed of lease dated 6th February,
1978 between the decree-holder and Dhruba cannot be said to be in
contravention of the provisions of the Rent Control Act, 1950, inasmuch as
C.S. No.524 of 1984 is not barred under Section 13(6) of the West Bengal
Premises Tenancy Act, 1956.
It is submitted that Deboprasad instituted the suit after serving a
notice dated 12 th August, 1953, at a point of time when West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950 was in force. The
suit was instituted under the provisions of the said Act, on the ground of
default in payment of rent under Section 12(1)(i) read with proviso to
Section 14(3) of the said Act. Prafulla was never a statutory tenant as
under the proviso to Section 14(3) as he was not entitled to the benefit of
protection against eviction under the Act of 1950. Prafulla only had a
personal right of continuing in occupation till evicted by due process of law
by way of a final decree. Mr. Das has referred to Sections 12(1)(i) and 14 of
the Act of 1950 which reads:-
"Notwithstanding anything to the contrary in any other Act or law,
no order or decree for the recovery of possession of any premises shall
be made by any Court in favour of the landlord against a tenant,
including a tenant whose lease has expired:
Provided that nothing in the Sub-section shall apply to any suit for
decree for such recovery of possession:
(i) Subject to the provisions of section 14, where the amount of two
months' rent legally payable by the tenant and due from him is in
arrears by not having been paid within the time fixed by contract,
or in the absence of such contract by the fifteenth day of the
month next following that for which the rent is payable or by not
having been validly deposited in accordance with section 19."
Section 14
"(1) If in a suit for recovery of possession of any premises from the
tenant the landlord would not get a decree for possession but for
clause (i) of the proviso to Sub-section (1) of section 12, the Court
shall determine the amount of rent legally payable by the tenant
and which is in arrears taking into consideration any order made
under Sub-section (4) and effect thereof up to the date of the order
mentioned hereafter, as also the amount of interest on such
arrears of rent calculated at the rate of nine and three-eighths per
centum per annum from the day when the rents became arrears
up to such date, together with the amount of such cost of the suit
as is fairly allowable to the plaintiff-landlord and shall make an
order on the tenant for paying the aggregate of the amounts
(specifying in the order such aggregate sum) on or before a date
fixed in the order.
(2) Such date fixed for payment shall be the fifteenth day from the
date of the order excluding the day of the order.
(3) If within the time fixed in the order under sub section (1), the
tenant deposits in the court the sum specified in the said order,
the suit, so far as it is a suit for recovery of possession of the
premises, shall be dismissed by the court. In default of such
payment the court shall proceed with the hearing of the suit:
Provided that the tenant shall not be entitled to the benefit
of protection against eviction under this section if he makes
default in payment of the rent referred to in clause (i) of the
proviso to Subsection (1) of section 12 on three occasions
within a period of eighteen months." (emphasis supplied)
Mr. Das refers to Section 40 of the West Bengal Premises Tenancy Act,
1956 which came into force on 31 st March, 1956 and repealed the Act of
1950 and submits that the said Section clearly saves pending proceedings
as on 31 st March, 1956 and any proceeding or remedy under the said Act
and relating to the period before such repeal could be instituted or enforced
as if the said Act of 1950 had been in force. The first suit continued and,
therefore, the provisions of the West Bengal Premises Tenancy Act, 1956 do
not apply to the said proceeding and the status of Prafulla has to be
determined in relation to the Act of 1950 by reason of Section 42(2A) of the
Act of 1950 which provides:-
"(2A) For the removal of doubts it is hereby declared that
notwithstanding any decision of any Court to the contrary, any
proceeding pending on the 31st day of March, 1956 which was
continued after that date and any decree passed or order made after
that date in accordance with the provisions of the said Act in any such
proceeding, shall be deemed to have been validly continued, passed or
made, as if the said Act had been in force, and had not been repealed
or had not expired, and no such proceeding, decree or order shall be
called in question in any manner merely on the ground that the said Act
was not in force when such proceeding was continued, decree was
passed or order was made."
Mr. Das has referred to the order of the Division Bench dated 11 th
September, 1963 and submitted that the terms of settlement records an
interim arrangements and in the order the words "rent" and "sub-tenants"
used in the consent terms were never accepted by the plaintiff and a
categorical assertion to that effect is recorded in the order. Debo Prasad
had never recognized any "sub-tenants" of Prafulla and the sub-tenants, if
any created by Prafulla, were and are illegal and not binding on the plaintiff,
namely, Debo Prasad Gooptu.
All rent paid by Prafulla Kumar Mitra and after his demise by his
successor-in-interest, Aruna Basu Mullick was under Section 14(4) of the
West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. A
bare perusal of Section 14(4) of the said Act would show that the rent paid
thereunder is in the nature of occupation charges during the continuance of
the suit, and cannot give rise to any rights under the West Bengal Premises
Tenancy Act, 1956. Section 14(4) of the said Act is reproduced hereunder:
"If the tenant contests that suit, as regards the claim for
ejectment, the plaintiff landlord may make an application at
any stage of the suit for order on the tenant-defendant to
deposit month by month rent at the rate at which it was last
paid and also the arrears of rent, if any, and the court after
giving an opportunity to the parties to be heard may make
an order for deposit of rent at such rate month by month
and the arrears of rent, if any, and on failure of the tenant
to deposit the arrears of rent within 15 days of the date of
the order of the rent at such rate of any month by the 15th
day of the next following month, the court shall order the
defence against ejectment to be struck out and the tenant to
be placed in the same position as if he had not defended the
claim to ejectment and the landlord shall be entitled to
withdraw the amount without prejudice to his rights and
contentions." (emphasis supplied)
The registered Indenture of Lease dated February 6, 1978 in favour of
the Decree Holders was entered into while Suit No. 1059 of 1954 was still
pending, and therefore, due to the aforesaid provisions of Section 40(2A) of
the West Bengal Premises Tenancy Act, 1956, the 1956 Act has no
application to the said Lease Deed and the said Lease Deed cannot be said
to be in contravention of the 1956 Act.
It is submitted that the second suit is not wholly or only depending on
the notice to quit dated 12 th August, 1993 Mr. Das has summarised the
causes of action of the second suit in the following manner:
(i) The subject matter of the previous suit being suit no.1059 of
1954 was based on notice dated 12 th August, 1953 issued under the
Act of 1950.
(ii) During the pendency of the same suit on 29 th May 1959 the
probate instead of Will of Probodh in favour of Prafulla was revoked
and Prafulla was discharged from his receivership, as a result whereof
Prafulla and his successor in interest became a trespasser or at the
most a tenant by sufferance.
(iii) During the pendency of the previous suit Aruna paid rent for
the month of November, 1977 for the last time to Dhruba in terms of
the consent order dated 11 th September, 1963 passed in appeal no.
109 of 1960 and thereafter default in making payment of monthly rent
and
(iv) Prafulla and/or his successor in interest had inducted a
large number of sub-tenant and/or occupants without having any
right, power or authority to do so.
It is submitted that in the light of the causes of action as pleaded in
the second suit even after abatement of the previous suit, the second suit is
saved and maintainable under the provision of Section 40(2)(b) of the West
Bengal Premises Tenancy Act, 1956 and Section 13(6) of the 1956 Act as no
manner of application.
Mr. Das submits that the bar under Order 22 Rule 9(1) of the Code of
Civil Procedure would not apply in the instant case. The bar only applies to
the legal representatives of the original deceased plaintiff. The original
plaintiffs, in the instant suit, were partners of M/s. Bando & Co. and were
not the legal representatives of Dhruba. In fact, the original plaintiffs made
all attempts to revive the previous suit. The application filed for
substitution in the previous suit was rejected. In the second suit, the
original plaintiffs are asserting their independent right on the basis of the
deed of lease. Moreover, abatement of a suit does not give rise to res
judicata, actual or constructive. In fact, explanation to Order 22 Rule 9
makes it clear. The cause of action referred to in Order 22 Rule 9 of the
Code of Civil Procedure has to be strictly construed. The cause of action in
the second suit is substantially different from the previous suit.
The previous Suit was only on the basis of default in payment of rent
under Section 12(1)(i) read with the Proviso to Section 14(3) of the West
Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The
additional grounds in the instant suit are that the Probate of the Last Will
and Testament of Probodh Chandra Mitra was revoked, Prafulla Kumar
Mitra and his successors-in-interest were rank trespassers, moreover they
had inducted a large number of sub-tenants without the consent of the
landlord. In such circumstances, Order 22, Rule 9 of the Code of Civil
Procedure, 1908 is inapplicable.
The instant suit, being C.S. No. 524 of 1984, was not barred by the
laws of limitation. The instant Suit is primarily for possession of the Suit
Premises by the Decree Holders and/or their predecessors-in-interest based
on title derived from the said Lease Deed. Therefore, the Suit is governed by
Article 65 of Part V of the Schedule to the Limitation Act, 1963("Limitation
Act") which prescribes 12 years as the period of limitation, starting from
"When the possession of the defendant becomes adverse to the plaintiff".
The Judgment Debtor and her predecessors-in-interest, Prafulla Kumar
Mitra and Aruna Basu Mullick never claimed adverse possession. Even
assuming that the act of stopping payment of rent since January, 1978 is
an overt act claiming adverse possession, the present Suit was filed in 1984,
within 12 years. Assuming that adverse possession commenced from the
date of the registered Indenture of Lease dated February 6, 1978, which
cannot be, even then the present Suit filed in 1984 was within 12 years.
Assuming that the right of adverse possession accrued to Aruna Basu
Mullick from the date of abatement of the previous Suit No. 1059 of 1954 in
1983, the present Suit in 1984 is within the period of limitation. In fact
even in the present Suit, Aruna Basu Mullick or her successor-in-interest
never raised any plea of title adverse to the landlords, they only disputed
the right of the Decree Holders and their predecessors-in-interest to
maintain the Suit on various grounds. The reliefs of declaration claimed in
the present Suit are only incidental to the relief for recovery of possession
and therefore Article 58 of Part V of the Schedule to the Limitation Act does
not apply. In this regard, Mr. Das has relied upon the following judgments:-
(i) State of Maharashtra vs. Pravin Jethalal Kamdar, reported
in AIR 2000 SC 1099 - Para. 5; and
(ii) Pavan Kumar and Anr. vs. K. Gopalakrishna and Anr.,
reported in AIR 1998 AP 247 - Paras. 13 to 16.
Mr. Das submits that the issues of maintainability of the suit were
initially raised by Aruna Basu Mullick in the suit and such issues were
considered and disposed of by an order dated 17 th June, 1985, in which it is
recorded that in October, 1977, the aforesaid Aruna Basu Mullick, obtained
Probate of the Will of Prafulla Kumar Mitra. In the said Order, it has been
categorically observed that in so far as Aruna Basu Mullick, Defendant No.
1 is concerned the case sought to be made out in the Plaint is that she is a
trespasser. In this case Probodh Chandra Mitra was inducted by Deba
Prosad Gooptu. Probodh Chandra Mitra died leaving a Will appointing
Prafulla Kumar Mitra as an executor. Such grant of Probate has been
revoked and the probate proceeding in respect of the Will of Probodh
Chandra Mitra is still pending. Even the fact that Aruna Basu Mullick,
Defendant No. 1 obtained the Probate of the said Will of Prafulla Kumar
Mitra does not make her automatically executrix to the estate of Probodh
Chandra Mitra. Probate proceeding in respect of the Will of Probodh
Chandra Mitra is still pending. Aruna Basu Mullick, Defendant No. 1 cannot
be treated as having any right, title or interest regarding the Will of Probodh
Chandra Mitra merely because of her appointment as executrix in respect of
the Will of Prafulla Kumar Mitra. Mr. Das has relied upon the following
observations in the order:-
"I have also carefully considered the provisions of Section 109 of
the Transfer of Property Act. It is pointed out by the said provisions and
several decisions thereunder that a Lessee under such circumstances
has some right in respect of the property even if it does not amount to
reversion of the whole of interest of the Lessor." ......"So far as the
question of the suit being barred by limitation is concerned, if the
Plaintiff's contention is correct, then it is a case of continuous wrong
and the question of limitation does not arise."
The challenge to the capacity of the judgment-debtor to enter into the
terms of settlement is also without any basis. The Judgment Debtor is the
executor of the Last Will and Testament of Aruna Basu Mullick and vide an
order dated August 11, 2008 passed in G.A. No. 2472 of 2008 in
Testamentary Suit No. 2 of 2001 in P.L.A. No. 225 of 1999 (In the Goods of:
Smt. Aruna Basu Mullick, deceased). Aruna as the propounder, executor
and legatee under the Will was appointed as an administrator pendente lite
till the disposal of P.L.A. No. 225 of 1999. What was dismissed by the order
dated February 15, 2016 was the "testamentary suit" and not P.L.A. No. 225
of 1999, nor was the appointment of the Judgment Debtor as the
administrator pendente lite expressly revoked.
Mr. Das has referred to the provisions of Chapter XXXV Rule 1 of the
Original Side Rules of the Hon'ble Court which states:-
"Non-contentious business. - Non-contentious business shall
include the business of obtaining probate and letters of
administration (with or without the will annexed, and whether
general, special or limited) where there is No contention as to the
right thereto, including the passing of probates and letters of
administration through the Court in contentious case where the
contest is terminated, and all ex parte business to be taken in the
Court in matters of testacy, and intestacy, Not being proceedings
in any suit, and also the business of lodging caveats against the
grant of probate or letters of administration."
Mr. Das submits that the aforesaid provision makes it clear that there
is no automatic dismissal of the testamentary suit being PLA No.225 of
1999. Mr. Das has referred to Section 2(11) of the Code of Civil Procedure
and submits that the definition of legal representative in the said Section is
wide and includes an executor under an unprobated will as a legal
representative in a suit and has all rights in relation to the suit that the
original deceased plaintiff/defendant could have. Mr. Das in this regard
has relied upon the decision of the Hon'ble Supreme Court in Jaladi
Suguna (deceased) through LRs. vs. Satya Sai Central Trust and Ors.,
reported in AIR 2008 SC 2866. Moreover, as on the date of substitution of
the deceased original Defendant No. 1, by the Judgment Debtor herein, after
being satisfied with the facts and circumstances as subsisting on such date,
the Hon'ble Court allowed the substitution. Once such substitution was
allowed, the Judgment Debtor, under Order 22, Rule 4(2), CPC, had all
rights to defend the said Suit including the right to enter into any
compromise. Order 22, Rule 4(2), CPC states that: "Any person so made a
party may make any defence appropriate to his character as legal
representative of the deceased defendant."
The dismissal of the testamentary suit was a subsequent event which
was not known to the Plaintiffs/Decree Holders at the time.
In the event any other alleged legal heir of the deceased Aruna Basu
Mullick if aggrieved by substitution of the Judgment Debtor No.1 or wished
to challenge the right of the Judgment Debtor No.1 to act as the legal
representative of the deceased Aruna Basu Mullick in the instant Suit, it
was open to them either to make an application before the Hon'ble Court
under Order 1, Rule 10, CPC for addition as a party in the Suit or to make
an application under Order 22, Rule 5, CPC, for adjudication as to who is
the proper legal representative of the deceased Aruna Basu Mullick.
It is significant to note that none of the legal representative of Aruna
Basu Mullick had challenged the authority of the defendant No.1 to enter
into a compromise with the plaintiffs notwithstanding the dismissal of the
testamentary suit.
Mr. Das submits that the applicants have admitted to have been
paying rent to the judgment-debtor, since the death of her predecessor-in-
interest, Aruna Basu Mullick in 1998, and the applicants have been so
paying even at the time after the compromise decree. It only shows that
Jayashree Ghosh, the judgment-debtor has always been in constructive
possession of the suit premises without any opposition from any other
person claiming through Aruna Basu Mullick and, so far as the instant suit
is concerned, she continued to be the legal representative of Late Aruna
Basu Mullick, notwithstanding the dismissal of the testamentary suit.
Moreover, since the applicants have acknowledged the judgment-debtor as
their landlady and have been paying rent to her since 1998, they are now
estopped under Section 116 of the Indian Evidence Act, 1872 from
challenging the authority of the judgment-debtor.
In responding to the submission as to the lack of capacity of the
plaintiffs to enter into a compromise decree on the ground that the present
plaintiffs were not partners at the relevant time, it is submitted that the
institution of the Suit and all substitutions of the Plaintiffs thereafter are in
accordance with Section 63(1) read with Section 59 of the Indian
Partnership Act, 1932, which state as follows:
"Section 63(1): "When a change occurs in the constitution of a
registered firm any incoming, continuing or outgoing partner, and
when a registered firm is dissolved any person who was a
partner immediately before the dissolution, or the agent of any
such partner or person specially authorised in this behalf, may
give notice to the Registrar of such change or dissolution,
specifying the date thereof; and the Registrar shall make a record
of the notice in the entry relating to the firm in the Register of
Firms, and shall file the notice along with the statement relating
to the firm filed under section 59."
Section 59: "When the Registrar is satisfied that the provisions of
section 58 have been duly complied with, he shall record an entry
of the statement in a register called the Register of Firms, and
shall file the statement."
It is submitted that upon reconstitution of a partnership firm, such
reconstitution is to be intimated to the Registrar along with the date of such
reconstitution and other particulars. After being satisfied with such
particulars, the Registrar is required to record such entry. Thus, just
because such entry is recorded on a subsequent date, it does not ipso facto
mean that there is any discontinuity in the partnership firm. In the instant
case, Entry 6 at Page 231, Volume II of the Supplementary Affidavit of the
Decree Holders shows the last entry in Form VIII of the Registrar of Firms,
Societies and Non-Trading Corporations, whereby the Decree Holders
became the current partners of M/s. Bando & Co. The said entry shows that
Smt. Rita Banerjee and Smt. Mitra Banerjee retired from the partnership
firm of April 2, 2014 and on the very same day the Decree Holders joined
the partnership firm. Therefore, there is no question of any discontinuity in
the partnership firm. Such reconstitution was intimated to the Registrar on
April 28, 2014 and the same was recorded by the Registrar on December 17,
2014. The Decree Holders made the application for substitution, being in
place of the erstwhile partners, being G.A. No. 3927 of 2015, only thereafter,
and were duly substituted in place of the prior partners vide an order of the
Hon'ble Court dated March 4, 2016. There is no infirmity in such process.
Under Section 68(2) of the Indian Partnership Act, 1932, the Extracts from
the Registrar of Firms is proof of such right, title and interest of the Decree
Holders. The said provision reads:-
"Section 68 Rules of Evidence. (1) Any statement, intimation or
notice recorded or noted in Register of Firms shall, as against any
person by whom or on whose behalf such statement, intimation or
notice was signed, be conclusive proof of any fact therein stated.
(2) A certified copy of an entry relating to a firm in the Register of
Firms may be produced in proof of the fact of the registration of
such firm, and of the contents of any statement, intimation or
notice recorded or noted therein."
Mr. Das has submitted under Order 23 Rule 3 of the Code of Civil
Procedure that a suit can be adjusted wholly or in part by any lawful
agreement or compromise in writing and it may cover the whole or any part
of the subject matter of the suit. It is clear from the said provision that
compromise may be in respect of the whole or part of the subject matter of
the suit in which the case it may not be necessary that all the parties to the
suit are also are required to be a party to such compromise. The Court
being satisfied with part compromise may pass a decree in the suit. The
instant suit is primarily for possession of the Suit Premises by the Decree
Holders and/or their predecessors-in-interest and it is undisputed that the
Judgment Debtor and/or her predecessors-in-interest have been in
possession of the Suit Premises at all material points of time, actual or
constructive through their unauthorised sub-tenants and/or occupants to
the exclusion of all others. Therefore, the Judgment Debtor is the only
necessary party to the Compromise Decree in its present form.
Mr. Das justified the deletion of the defendant Nos.2, 3 and 4 by
referring to Order 1 Rule 10(2) of the Code of Civil Procedure where the
Court may at any stage of the proceeding either upon or without the
application of either party can add or delete a party. It is submitted that
the defendant Nos.2, 3 and 4 never contested the suit in spite of service and
never filed any written statement. So far as the defendant No.2 is
concerned, Pramil Kumar Mitra was only joined as a defendant in the suit
since the original plaintiffs under 1984 suit were unaware of the probate
dated 14 th October, 1974, granted by the learned Additional District Judge,
Alipore in O.S. No.1 of 1968 of the last Will and Testament of the deceased,
Prafulla dated 31 st March, 1965 in favour of Aruna Basu Mullick. The
defendant Nos.3 and 4 have never contested the leasehold rights of the
decree holders.
Once, the Suit was compromised by the Judgment Debtor, the main
part of the subject matter was settled, and in fact, expunging Defendants
No. 2, 3 and 4 was in consonance with justice, as then neither the
Defendants No. 2, 3 and 4 would be bound by the Decree nor could the
Decree be executable against any person claiming through them. In case of
any grievance or cause of action against the Decree Holders, Defendants No.
2, 3 and/or 4 are free to institute appropriate legal proceedings against the
Decree Holders, and the instant Compromise Decree would not have the
effect of res judicata, actual or constructive, in any such proceedings.
Significantly the Defendants No. 2, 3 and/or 4 and/or any person
claiming through them have not raised any objection to the execution of the
instant Compromise Decree. The specific case of all the applicants is that
they have been inducted by the Judgment Debtor and/or her predecessors-
in-interest, Prafulla Kumar Mitra and/or Aruna Basu Mullick and have been
paying rent to them. The Applicants are clearly bound by the Compromise
Decree.
It is submitted that the right of the applicants in the instant
proceedings is confined to their locus and status and it is impermissible to
raise any or all objections including an objection which goes beyond the
decree or an objection which attacks the decree on merits. It is submitted
that the entire scheme of Order 97, when seen as a whole, and the scheme
of Rules 97 to 101, when read collectively, clearly demarcate and keep apart
the locus and status of the obstructionist as against the Judgment Debtor.
To permit such contentions to be raised would merge the interest of the
obstructionist with that of the Judgment Debtor.
A third party to the decree who offers resistance would fall within the
ambit of Rule 101 if an adjudication is warranted as a consequence of the
resistance or obstruction made by him to the execution of the decree. When
a decree-holder complains of resistance to the execution of a decree it is
incumbent on the execution court to adjudicate upon it. But while making
adjudication, the court is obliged to determine only such question as may be
arising between the parties to a proceeding on such complaint and that
such questions must be relevant to the adjudication of the complaint. The
words "all questions arising between the parties to a proceeding on an
application under Rule 97" would envelop only such questions as would
legally arise for determination between those parties. In other words, the
court is not obliged to determine a question merely because the resistor
raised it. The questions which the executing court is obliged to determine
under rule 101, must possess two adjuncts. First is that such questions
should have legally arisen between the parties, and the second is, such
questions must be relevant for consideration and determination between the
parties, e.g. if the obstructer admits that he is a transferee pendente lite it
is not necessary to determine a question raised by him that he was unaware
of the litigation when he purchased the property. Similarly, a third party,
who questions the validity of a transfer made by a decree-holder to an
assignee, cannot claim that the question regarding its validity should be
decided during execution proceedings. Hence, it is necessary that the
questions raised by the resistor or the obstructer must legally arise between
him and the decree-holder. In the adjudication process envisaged in order
21 Rule 97(2) of the Code, execution court can decide whether the question
raised by a resistor or obstructer legally arises between the parties. An
answer to the said question also would be the result of the adjudication
contemplated in the sub-section. In this regard, Mr. Das has relied upon the
following judgments:
(i) Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Anr., reported
in AIR 1998 SC 1754 - Paras. 10 - 12;
(ii) Biswanath Poddar vs. ArchanaPoddar and Anr., reported in
AIR 2001 SC 2849.
It is submitted that the passage from Mulla's Commentary on the
Transfer of Property Act, 1882 (12 th Edn, Page 852) only requires
impleadment of all parties who are in possession of the suit premises as
parties to the suit. In the instant case, the only party who was in actual or
constructive possession of the Suit Premises was always the Judgment
Debtor and/or her predecessors-in-interest, through their sub-lessees/sub-
tenants. The Applicants admittedly being sub-lessees/sub-tenants under
the Judgment Debtor, the Applicants' interest have ceased with the
acceptance of forfeiture/determination of the monthly tenancy by the
Judgment Debtor in the Compromise Decree and the Applicants have ceased
to have any tangible right to the property. It is a settled position of law that
such sub-tenants/sub-lessees are bound by the Decree even if they were
not parties to the Suit. Such a sub-tenant/sub-lessee is bound by the
decree of ejectment albeit his being not made a party to the Suit, under
Order 21, Rule 35, CPC, which is reproduced herein below:
"35. Decree for immovable property.- (1) Where a decree is for
the delivery of any immovable property, possession thereof
shall be delivered to the party to whom it has been adjudged,
or to such person as he may appoint to receive delivery on his
behalf, and, if necessary, by removing any person bound by
the decree who refuses to vacate the property. ..(emphasis
supplied)
Mr. Das submits that a sub-tenant is required to be made a party in a
suit for eviction provided such sub-tenant enjoys protection under the West
Bengal Premises Tenancy Act, 1956 and/or the West Bengal Premises
Tenancy Act, 1997. Mr. Das has referred to Section 13(2), 14(1) and 16(1) of
the 1956 Act and Section 26 of the 1997 Act and submits that none of
applicants have been able to establish that they have complied with the
provision of the aforesaid acts or are entitled to protection thereof. The
status of occupiers under Prafulla was never recognised by sub-tenant of
Prafulla as is evident from the order of 11 th September, 1963 passed in
appeal no. 109 of 1960.
Moreover, the Order dated June 18, 1985, Minutes of Meetings dated
July 5, 1985, July 8, 1985 and July 12, 1985, Special Officer's Report dated
July 15, 1985, Order dated December 5, 1985; Minutes of the Meeting dated
December 12, 1985; Special Officer's Report dated December 19, 1985 and
the Special Officer's Report dated December 20, 1985, all forming part of
the proceedings in the instant Suit, C.S. No. 524 of 1984, would go to show
that all the then occupants of the entirety of the said Premises at that point
of time in 1985 were the unauthorised and/or illegal sub-tenants of Aruna
Basu Mullick and/or her predecessor-in-interest, being the predecessors-in-
interest of the Judgment Debtor and that the said unauthorised and/or
illegal sub-tenants occupying the said Premises were aware of the litigation
pending before the Hon'ble High Court at Calcutta in respect of the Suit
Premises, being C.S. No. 524 of 1984 between the Original Plaintiffs and the
landlady of the said unauthorised and/or illegal sub-tenants, Aruna Basu
Mullick, and also the aforesaid orders passed by the Hon'ble Calcutta High
Court in the said Suit, including the specific order of injunction restraining
the Defendant No. 1, Aruna Basu Mullick "from inducting any other tenant
or allowing anyone else to occupy" the said Premises "until further orders of
this Court." However, none of the aforesaid unauthorised and/or illegal sub-
tenants or their successors-in-interest or unauthorised transferees,
inducted or deemed to have been inducted by the Judgment Debtor and/or
her predecessor-in-interest and/or her successor-in-interest, took any steps
to intervene in and/or have themselves added as parties in C.S. No. 524 of
1984.
Some of the Applicants have been inducted even after 1984, during
the pendency of C.S. No. 1984 and the applications of such Applicants
being transferees pendente lite is required to reject outright under Section
52 of the Transfer of Property Act, 1882 and Order 21, Rule 102, CPC,
which states as follows:-
"Nothing in rules 98 and 100 shall apply to resistance or
obstruction in execution of a decree for the possession of
immovable property by a person to whom the judgment-
debtor has transferred the property after the institution of
the suit in which the decree was passed or to the
dispossession of any such person.
Explanation.-In this rule, "transfer" includes a transfer by
operation of law."
In view thereof the applicants have no legal right to occupy the said
premises. Mr. Das has, accordingly, prayed for dismissal of the application.
Mr. Ghosh in reply has distinguished the decisions relied upon by Mr.
Das. Mr. Ghosh has submitted that Bishen Sarup (supra), Md.
Fazuhzzaman (supra), Prankrishna Dey (supra) and Janab E.M. Gulam
(supra), the facts were not identical to facts in issue. In any event, the
decisions are contrary to the Division Bench judgment of our Court in
Sambhunath Mitra (supra).
In Bishen Sarup (supra) both the lessor and the person in actual
were impleaded as parties in the suit and, accordingly, suit was not held to
be defective.
In Md. Fazuhzzaman (supra), the person in actual possession of the
suit property was impleaded as a defendant and, in such circumstances, it
was held that there seems to be no reason why a subsequent lessee could
not be allowed to enforce his right against another person who is holding
under his lessor which is not the case here.
Prankrishna Dey (supra) was decided on 8 th September, 1868 before
the Transfer of Property Act, 1882 came into force and, accordingly, the said
decision does not apply to the present case.
In Achayya (supra), the plaintiff therein sought to recover possession
of land given to him in lease by the defendant No.1, the owner of the land
and the defendant No.2 therein claimed occupancy right and an objection
was raised in the said case that the lessee could not sue for eviction. On
such facts, it was held that the lessor, the owner of the said land, was
entitled to evict on proof of title so could the lessee claim under him to
obtain possession on proof of such title and on the basis of his own lease.
In the instant case, the applicants were in actual possession of the tenanted
portion of the said property and they are sought to be evicted without
impleading them in the suit.
Mr. Ghosh submits that in Janab E.M. Gulam (supra), the petitioner
therein was one of the two defendants in a suit to eject him from possession
of certain land. The second defendant was Tanjore Municipal Council, the
petitioner therein was a lessee in Tanjore, and the petitioner was a lessee
under the defendant No.2. The plaintiff acquired a lease of the property
which was in occupation of the defendant No.1 for some years. The plaintiff
as new lessee filed a suit against the defendant No.1 and also against the
defendant No.2. In such circumstances, it was held that if a person obtains
a lease from a lessor and finds another person to be in possession at the
time of taking possession, it would be wrong to contend that the new lessee
cannot bring an action to eject the first defendant as the owner of the land
was entitled to eject the second defendant and proof of title so could the
lessee. Mr. Ghosh argued that it is significant to note that the defendant
No.1 was in actual possession and he was impleaded in the said suit unlike
the present situation.
Mr. Ghosh submits that similarly Kondavati Naganna (supra) was
also not applicable in the instant case as lease is not an assignment of
property and his possession cannot be equated with that of a landlord.
However, Mr. Ghosh submits that all the aforesaid decisions are in
conflict with the Division Bench of our Court in Sambhunath Mitra (supra)
and the said decisions are no longer good law and, accordingly, not binding
on this Court.
Mr. Ghosh submits that in Pavan Kumar (supra), it has been held
that even after the amendment of CPC, 1908 in 1976 the expression "may"
employed in Rule 99 of Order XXI of CPC, 1908 prima facie denotes that the
remedy under Rule 99 is not compulsory, but the provision of Order XI Rule
99 CPC, 1908 does not place any bar on bringing an independent suit for
possession, without filing an application under the said Rule.
In view of the provision of Rule 101 of Order XXI of CPC, 1908 all
questions (including question relating to right, title or interest in the
property) arising between the parties to a proceeding on an application
under Rule 99 of Order XXI of CPC, 1908 or their representatives, and
relevant to the adjudication of the application shall be determined by the
Court dealing with the application, and "not by a separate suit".
In paragraph 9 of the said decision it has been held, inter alia, as
follows:-
"........... We agree with the learned single Judge that the bar
against filing of the separate suit would apply only if there was an
application under Rule 99 but not otherwise. .............."
[Emphasis supplied]
It is submitted that in view of the specific provision of Rule 101 of
Order XXI of CPC, 1908 there is a bar on filing a separate suit in respect of
all questions arising between the parties to a proceeding on an application
under Rule 99 of Order XXI of CPC, 1908.
The said decision is per incuriam inasmuch as in the said decision the
provision Rule 101 of Order XXI of CPC, 1908 was not considered carefully.
Mr. Ghosh submits that the decision in Pravin Jethalal Kamdar
(supra) has no manner of application as it would appear from the said
decision that the sale deed was declared null and void and the same had no
existence in the eye of law. It is well-settled that invalidity of such deed can
be raised in any proceeding and no separate declaration is necessary, which
is not the case here.
Mr. Ghosh submits that Jaladi Suguna (supra) has discussed the
scope of "legal representative" which includes the person who represents the
estate of the deceased and also includes any person who intermeddles with
the estate of the deceased. The Testamentary Suit was dismissed on 15 th
February, 2016. In view of dismissal of the said suit, Jayashree Ghosh
claiming to be the executrix of the Will of Aruna could not be considered as
the legal representative of Aruna either as administrator of pendente lite or
as the executrix named in the Will or as the person intermeddling with the
estate of Aruna and, accordingly, she was not competent to enter into such
compromise.
It is submitted that Commissioner, Jalandhar Division (supra) also
does not come to the aid of the plaintiffs for the reasons mentioned above.
It is submitted that the ratio of the decision in Biswanath Poddar
(supra) also does not apply to the facts of the case since unlike the present
plaintiffs, the owner of the suit premises filed a suit for eviction of the
tenant on the ground of illegal creation of sub-tenancy in contravention of
the provision of the West Bengal Premises Tenancy Act, 1956. The present
plaintiffs claimed to be the lessees (concurrent lessee) under the original
owner by virtue of a deed of lease dated 6 th February, 1978. Since the
concurrent lease is not valid in the eye of law in view of the decisions in
Sambhunath (supra), the original plaintiffs were not entitled to file the suit
as concurrent lessees. Moreover, no notice under Section 13(6) of the West
Bengal premises Tenancy Act, 1956 was served upon the defendant Nos.1
and 2 or upon the present applicants. The present suit has not been filed
under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956 after
serving a notice under Section 13(6) of the West Bengal Premises Tenancy
Act, 1956. Accordingly, the provision of Section 13(2), Section 14 and
Section 16 of the West Bengal Premises Tenancy Act, 1956 would not apply.
Mr. Ghosh submits that the decree is fraudulent and not enforceable
against the applicants.
The quality of the claim of the interveners has to be assessed on the
basis of the facts stated in the earlier part of the judgment as well as the
submissions made by the respective parties.
The facts have been summarized above.
The undisputed facts that have emerged from the materials disclosed
by the parties are that Deboprasad was the original owner of the property.
Deboprasad filed a suit on April 5, 1954 for eviction of Prafulla from the suit
premises on the ground of default of payment of rent. Initially an ex parte
decree was passed. The decree was, however, set aside by the appellate
Court in which it has been specifically recorded that Deboprasad is not
accepting payment for occupation charges by Prafulla as rent and the claim
of sub-tenants made by Prafulla. It appears that the Kolkata Municipal
Corporation was attached the rents of the sub-tenants of Prafulla. The
decree provides that in default of payment of occupation charges by
Prafulla, the defence in the suit would automatically struck off. After the
death of Deboprasad, his son Dhruba continued the suit till his death on
22 nd February, 1983. In the meantime, Aruna as the executrix of the Will of
Prafulla substituted herself along with Subarnabala Mitra and Pramil
Kumar Mitra, the widow and son of Prafulla. In the suit, Aruna paid
occupation charges in terms of the order of the Division Bench till
December, 1977 and, thereafter, no rent was paid. In the meantime, an
agreement was entered into between Dhruba and the predecessor-in-
interest of the present plaintiffs on 22 nd December, 1974 by which a right
was conferred upon the original plaintiffs to pursue the said suit on behalf
of Dhruba and a Power of Attorney was executed by Dhruba on behalf of the
said original plaintiffs to continue such eviction suit. Thereafter, a lease
agreement was executed on 6 th February, 1978 by which certain rights in
relation to the suit property, namely, to continue the suit for eviction,
obtaining vacant possession of the property and to make construction upon
obtaining vacant possession of the property.
After the death of Dhruba, the original plaintiff filed an application for
substitution and with a prayer to continue the eviction suit, the said
application was rejected. Then the partners of Bando & Co., the original
plaintiffs filed a suit for eviction of the defendant Nos.1 and 2 and a
declaration that the lease agreement executed by Dhruba is valid and
subsisting. The defendant Nos.3 and 4 are the executors of the Will of
Dhruba. The said defendant Nos.3 and 4 did not continue with the eviction
proceeding. The cause of action of the instant suit is summarized in
Paragraph 38 of the Plaint which has been noted earlier. The grounds for
eviction are two-fold, namely, default in payment of rent from December,
1977 and wrongful subletting of the premises.
Aruna initially filed an application for rejection of plaint on the
ground that the suit was filed without any notice to quit. The notice to quit
given by Dhruba cannot be availed of by the plaintiffs herein. The earlier
suit having abated, in view of Order 22 Rule 9 of the Code of Civil
Procedure, this suit is barred by limitation. The clauses in the lease in
favour of the plaintiffs showed that the lease was subject to the suit which
has now abated. There are seven lessees and that not all of them have
joined in the suit.
The plaintiffs before the learned Single Judge have contended that the
cause of action in the suit is not on the basis of any notice to quit or
ejectment of the defendants on the basis of their tenants. The suit is for
eviction of the defendants who are trespassers. The learned Single judge
dismissed the said application for rejection of plaint on the ground that on
examination of the plaint, it appears that Smt. Aruna Basu Mullick was
treated as a trespasser. Probodh was inducted by Deboprasad. Deboprasad
died leaving a Will appointing Prafulla as an executor. Such grant of
probate was revoked and the probate proceeding in respect of the Will of
Probodh was pending. Even the fact that Aruna obtained the probate of Will
of Prafulla does not make her automatically executrix to the estate of
Probodh. Probate proceeding in respect of Probodh was still pending.
Accordingly, Aruna could not be treated as having any right, title and
interest in respect of the Will of Probodh merely because of her appointment
as executrix in respect of the Will of Prafulla.
On careful consideration of Section 109 of the Transfer of Property
Act, it was held that the said provision makes it clear that a lessee under
such circumstances has some right in respect of the property even if it does
not amount to reversion of the whole of interest of the lessor. It was further
held that it is a case of continuous wrong and the question of limitation
does not arise. The application of Aruna was dismissed.
On behalf of the obstructionists similar points have now been re-
agitated.
It is clear from record that the sub-tenancies created by Prafulla were
not in accordance with the provisions of the Rent Act of 1950 inasmuch as
the probate of the last Will and testament has now been revoked, Prafulla or
the executrix of his alleged Will or successor-in-interest of Prafulla cannot
claim any protection under the Rent Control Statute. Accordingly, the
induction of Aruna was also that of a trespasser inasmuch as from the chart
handed over to this Court showing the list of occupiers, it appears that the
following persons were inducted after the death of Dhruba by Aruna during
1984 and 2014:-
Sl. Name of Occupiers Inducted Available G.A. No.
No. in Documents to
show Possession
33. Debasis Mukherjee 1984 (a) Rent receipt for 2339/2017
the months of
February, April &
July 1984
(b) Possession
recorded in
Receiver's report
dated 15.07.1985
34. Calcutta Copy 1984 (a) Trade license 2641/2017
Service, Proprietor: for the year 1984-
Parna Mukherjee 85
(b) Possession
recorded in
Receiver's report
dated 15.07.1985
(c) Rent receipt for
the month of July
1988
35. Latest Publicity, 1984 (a) Rent receipt for 2593/2017
Proprietor: Shibaji the months of May
Bhoumik 1988 & February
1989
(b) Professional
tax receipt for the
year 1989-90
36. R.C. Sikchi 1984 (a) Possession 2540/2017
recorded in
Receiver's report
dated 15.07.1985
(b) Professional
tax receipt for the
year 1987-88
(c) Certificate of
registration under
W.B. Shops &
Establishments
Act dated
18.09.1989
37. Kamala Sikchi 1993 (a) Trade licence 2575/2017
for the year 1993-
94
(b) Application for
registration under
W.B. Shops &
Establishment
Rules evidencing
commencement of
business on
31.12.1993
(c)VAT registration
certificate for the
year 2008-09
38. Popular Publicity, 1995 (a) Rent receipt for 2583/2017
Proprietor: Deba the month of July
Prasad Das 1995
(b) Trade license
for the years
1995-96 & 2017-
18
39. Subrata Mondal & 1996 (a) Income Tax 2586/2017
Smt. Sovona acknowledgement
Mondal dated 19.03.1996
(b) Trade licence
for the year 1997-
98
(c) Rent receipt for
February 2005 to
January 2015
40. S.K. Jhunjhunwala 1997 (a) Registration 2570/2017
card from Calcutta
Telephones dated
03.03.1997
(b) Electricity bill
for the month of
May 2007
(c) Trade license
for the year 2011-
12, 2012-13
(d) Telephone bill
of 2011
(e) Income Tax
acknowledgement
for the year 2012-
13
41. Bhaba Sundar 1999 (a) Rent receipt for 2588/2017
Panda the month of
August 1999
(b) Trade licence
for the years
1999-2000 &
2016-17
42. New Zeeshan, 2000 (a) Trade licence 2581/2017
Proprietor: for the years
Shaduddin 2005-06, 2007-08
(b) Fire licence for
the year 2010-11
(c) Rent receipt for
the month of
October 2015
43. Shaan Haider & 2003 (a) Trade licence 2574/2017
Farhan Haider for the year 2003-
04
(b) Rent receipt for
the month of
December 2004 &
July 2014
44. Md. Fazar Ali 2006 (a) Rent receipt for 2550/2017
Biswas the month of May
2006
(b) Trade licence
for the year 2006-
07
45. Swapna 2009 (a) Rent receipt for 2578/2017
Chakraborty the month of June
2009
(b) Agreement of
tenancy dated
10.07.2009
between Jayasree
Ghose & Swapna
Chakraborty
(c) Electricity bill
for the month of
October 2010
46. Champa Biswas 2009 (a) Agreement of 2553/2017
tenancy dated
10.07.2009
between Jayasree
Ghose & Champa
Biswas
(b) Rent receipt for
the months of
January to April
2017
47. Reyaz Ahmed Khan 2009 (a) Trade licence 2592/2017
for the years
2011-12 & 2013-
14
(b) Electricity bill
for the month of
February 2015
48. Ashok Kumar & 2010 (a) Agreement of 2591/2017
Mukul Kumar tenancy dated
31.01.2010
between Jayasree
Ghose and Ahok
Kumar & Mukul
Kumar
(b) Rent receipt
dated 01.02.2010
for deposit money
(c) Rent receipt for
the months of
February 2010 to
January 2011
(d) Electricity Bill
for the month of
April 2010
49. Glomex India, 2011 (a) Rent receipt for 2551/2017
Partners: Sukanta the month of
Kundu & Aloke January 2011
Kumar Jana (b) Trade licence
for the year 2012-
13
50. Shabnam Haider & 2013 (a)Possession 2565/2017
Daughters letter dated
18.09.2013
(b) Rent receipt for
the months of
September to
December 2013
(c) Trade licence
for the year 2013-
14
(d) Electricity bill
for the month of
July 2014
51. Snehasis 2014 (a) Rent receipt for 2576/2017
Choudhury the month of
September 2015
(b) Professional
tax receipt for the
year 2017-18
Prior thereto, there is a list of 32 occupants alleged to have been
inducted in the suit premises either by Prafulla or by Aruna during the
pendency of the suit, namely:-
Sl. Name of Occupiers Inducted Available G.A. No.
No. in Documents to
show Possession
1. Progressive Traders 1950 (a) Possession 2582/2017
& The Pratyaya, recorded in
Proprietor: Receiver's report
Kamalendu Dhar dated 15.07.1985
(b) Rent receipts
for the months of
June 2000 &
August 2007
(c) Trade license
for the year 2002-
03
2. Mohan Lal Singhi, 1951 (a) Letter from 2597/2017
Proprietor: J.K. CESC showing
Trading Co. installation of
electric meter on
01.01.1951
(b) Certificate of
registration under
the Bengal
Finance (Sales
Tax) Act dated
11.04.1967
(c) Letter dated
19.04.1967 from
the Commercial
Tax Officer,
Taltola Charge
(d) Trade license
for the year 1978-
79
(e) Professional tax
receipt for the
year 1978-79
(f) Rent receipt for
the month of May
1982
(g) Possession
recorded in
Receiver's reported
dated 15.07.1985
3. Geeta 1952 (a) Possession 2567/2017
Balakrishnan, recorded in
daughter of Late Receiver's report
T.K. Warrior dated 15.07.1985
(b) Letter dated
19.09.1988 from
N.C. Bose & Co.,
Advocate for
Aruna Basu
Mullick
4. J. Biswas & Co. 1952 (a) Licence for 2334/2017
arms and
ammunition
dealers issued in
the years 1965
(refers to a licence
issued in the year
1949) and 2017
(b)Explosive
licence for sale of
gunpowder issued
in the year 1953
(c) Registered
partnership deed
of 1993 which
refers back to a
registered
partnership deed
of 1962
(d) Licence for
arms and
ammunition
dealers issued in
the years 1965
and 2017
(e) Deposit slip
before the Rent
Controller of the
year 1971
(f) Trade licence
for the years
1976-77 & 2017-
18
(g) Sales tax
deposit slip for the
year 1983
(h) Possession
recorded in
Receiver's report
dated 15.07.1985
(i) Rent receipt for
the months of July
to September
1994, January to
June 2017
5. Amber Roy, son of 1953 (a)Possession 2598/2017
Late Bholanath recorded in
Roy, then Receiver's report
proprietor of dated 15.07.1985
Ashoka Films (b) Trade license
for the years
1997-98 & 2009-
10
(c) Rent receipt for
the month of
November 2011
6. Indra Nath Roy, 1953 (a) Possession 2600/2017
son of Late recorded in
Bholanath Roy, Receiver's report
then proprietor of dated 15.07.1985
Ashoka Filma (b) Professional
tax receipt for the
year 1988-89
(c) Electricity bill
for the month of
April 2009
(d) Rent receipt for
the month of May
2017
7. Mrs.Radha Eswar & 1959 (a)Acknowledgeme 2560/2017
Mr. V. Raghavan, nts from Indian
heirs of Late S.V. Posts &
Eswar Telegraphs
Department dated
22.04.1963,
25.04.1963,
06.08.1964 &
09.11.1964
(b) Electricity bill
for the month of
January 1976
(c) Rent receipts
for the moths of
February & March
1976, August &
September 1990
(d) Possession
recorded in
Receiver's report
dated 15.07.1985
(e) Trade license
for the year 1988-
89
8. Bandana Basu, 1960 (a) Rent receipt for 2590/2017
wife of Late the months of
Subrata Basu March 1965, May-
July 2009,
January-
December 2013
(b) Possession
recorded in
Receiver's report
dated 15.07.1985
9. Medium Service, 1960 (a) Trade license 2602/2017
Proprietor: Raghu for the year 1960-
Gupta 61
(b) Rent receipt for
the month of
November 1980
(c) Possession
recorded in
Receiver's report
dated 15.07.1985
10. Cine Club of 1960 (a) Certificate of 2589/2017
Calcutta Registrar of Firms
Societies & Non-
Trading
Corporations,
W.B. for the year
1962-63
(b) Letters from
the Registrar of
Firms Societies &
Non Trading
Corporations,
W.B. dated
09.08.1965,
13.05.1966 &
23.05.1966
(c) Possession
recorded in
Receiver's report
dated 15.07.1985
11. B.L. Shah & P.S. 1960 (a)Rent receipts 2566/2017
Rayet for the months of 2594/2017
July 1978 &
January 1989
(b) Possession
recorded in
Receiver's report
dated 15.07.1985
12. Chowringhee 1961 (a) Possession 2630/2017
Business Centre, recorded in
Proprietor: Smt. Receiver's report
Rita Devi Singhania dated 15.07.1985
(b) CESC bill
dated 13.11.2004
for installation of
new meter
(c) Trade licence
for the years
2006-07, 2009-10
(d) Rent receipt for
the month of
February 2007
13. M. K. Karunakaran, 1963 (a)Rent receipts 2601/2017
represented by his for the months of
son Ranjit April & June 1965
Karunakar (b) Certificate of
registration under
the W.B. Shops &
Establishments
Act in the month
of August 1967
(c) Professional tax
receipt for the
year 1972-73
(d) Bank
statement for the
year 1981-82
(e) Possession
recorded in
Receiver's report
dated 15.07.1985
14. Smt. Uma Arora & 1965 (a) Possession 2549/2017
Sanjay Arora, heirs recorded in
of Late Narayan Receiver's report
Das Arora dated 15.07.1985
(b) Letter from
Jayashree Ghose
dated 09.06.2003
(c) Rent receipt for
the month of April
2016
15. Harlalka Brothers, 1965 (a) Rent receipt for 2545/2017
Partner: Ashok the month of May
Harlalka 1965
(b) Letter dated
01.03.1955
attested as a true
copy on
19.03.1965 by
P.K. Mitra
(c) Letter dated
19.03.1965 from
P.K. Mitra
(d) Possession
recorded in
Receiver's report
dated 15.07.1985
(e) Agreement of
tenancy dated
29.05.2008
between Jayasree
Ghose and
Harlalka Brothers
(f) Letter dated
01.06.2008 from
Jayasree Ghose
16. Sanjay Kumar 1966 (a)Income tax 2599/2017
Shaw assessment for the
year 1978-79
(b) Electricity bill
for the month of
May 1993
(c) Trade licence
for the year 2003-
04
(d) Telephone
installation receipt
in March 2007
17. Bina Koley 1966 Not available 2569/2017
18. Sarkar Film 1967 (a)Rent receipt for 2543/2017
Distributors, the month of May
Proprietor: Jayanta 1967
Sarkar (b) Possession
recorded in
Receiver's report
dated 15.07.1985
19. Kela Brothers 1968 (a)Letter dated 2339/2017
(Calcutta), 28.04.1969 from
Partners: R.C. the Registrar of
Sikchi, Kamala Firms, W.B.
Sikchi & Anuradha (b) Certificate of
Maheshwari registration under
the W.B. Shops &
Establishments
Act dated
27.09.1969
(c) Trade license
for the year 1970-
71
(d) Possession
recorded in
Receiver's report
dated 15.07.1985
(e) Rent receipt for
the month of April
2013
20. Deo Kishan 1968 (a)Rent receipt for 2568/2017
Tapadia, brother of the month of
Late G.K. Tapadia October 1968
(b)Possession
recorded in
Receiver's report
dated 15.07.1985
(c)Trade license for
the years 1986-87
& 2016-17
21. Designers' Corner, 1969 (a)Trade license 2587/2017
Proprietor: Anjan for the years
Chatterjee 1969-70, 1970-71,
1973-74, 1974-75,
1976-77
(b)Rent receipts
for the months of
February 1974 &
January 1975
(c) Possession
recorded in
Receiver's report
dated 15.07.1985
22. Susovan Ghosh, 1971 (a)Trade licence 2577/2017
son of Late Ashok for the year 1971-
Ghosh, Proprietor: 72, 1974-75 &
Cine & Sound Co. 2016-17
(b) Electricity bill
for the month of
June 2007
(c) Rent receipt for
the month of
September 2010
23. Supriyo Ghosh, 1971 (a)Trade licence 2547/2017
grandson of Late for the year 1971-
Ashok Ghosh, 72 & 1974-75
Proprietor: Cine & (b)Rent receipt for
Sound Co. the month of
September 2010
24. Smt. Krishna Pal & 1973 (a)Trade licence 2580/2017
Smt. Sharmistha for the years
Pal, heirs of Late 1973-74, 2005-06
Hiralal Pal & 2016-17
(b)Permission of
screens from the
Corporation of
Calcutta for the
year 1973-74
(c) Rent receipt for
the months of
October 1994 &
October 2004
25. Nirmal Kumar Jain 1974 (a)Income Tax 2548/2017
assessment order
for the year 1974-
75
(b) Possession
recorded in
Receiver's report
dated 15.07.1985
(c) Rent receipt for
the months of May
1992 & March
2012
(d) Trade license
for the year 2011-
12
26. Naushad Akhtar & 1975 (a)Rent receipt for 2579/2017
M. Imroj, son of the month of April
Salar Ali & 1975
Shumsuddin (b) Trade license
for the year 2003-
04
27. Tapan 1975 (a)Letter from the 2546/2017
Chakraborty, Licence
represented by G.N. Department,
Chattopadhyay & Corporation of
A.K. Mullick Calcutta dated
19.12.1978
(b)Possession
recorded in
Receiver's report
dated 15.07.1985
(c) Rent receipt for
the months of
June 2003 to
March 2004
(d) Trade license
for the year 2017-
18
28. Sethia Prasad 1978 (a)Rent receipt for 2571/2017
Agarwala & Dipak the months of
Kumar Agarwala February 1978 &
May 2003
(b)Possession
recorded in
Receiver's report
dated 15.07.1985
29. Smt. Bina 1979 (a)Letter dated 2339/2017
Chowdhury, 29.02.1980 from
Partner: Raman the Commercial
Industri Tax Officer,
Taltala Charge
evidencing
application for
registration made
on 20.12.1979
(b)Trade license
for the year 1979-
80
(c)Rent receipt for
the month of
September 1981
(d)Possession
recorded
Receiver's report
dated 15.07.1985
30. Parshu Ram 1980 (a)Rent receipt for 2572/2017
Choudhury the month of June
1989
(b)Trade license
for the years
1980-81, 1982-83
& 2014-15
(c)Electricity bill
for the month of
February 1982
(d)Possession
recorded in
Receiver's report
dated 15.07.1985
31. Narendra Kumar 1981 (a) Letter from the 2585/2017
Arya, son of Smt. Registrar of Firms
Champa Devi Arya Societies & Non
Trading
Corporations,
W.B. dated
05.02.1982
(b) Possession
recorded in
Receiver's report
dated 15.07.1985
(c) Income tax
clearance
certificate dated
22.09.1995 for the
years 1988-89
onwards
(d) Trade licence
for the year 2005-
06
(e) Rent receipt for
the month of July
2012
32. Alo Choudhari & 1983 (a)Trade licence 2339/2017
Co. for the year 1983-
84
(b)Rent receipt for
the month of June
2017
During his lifetime Probodh never created any sub-tenancy.
As soon as the probate of Prafulla was revoked, Prafulla lost his right
to represent the estate of Probodh. He, however, continued to act as
Receiver of the hotel business. In any event, by reason of default in making
payment of rent since December, 1977, in terms of the order of the appellate
Court dated 11 th September, 1963, the defence against ejectment in the suit
is struck off and Dhruba was entitled to an immediate possession during
his lifetime on the basis of the notice to quit dated 12 th August, 1953. The
tenancy of Prafulla in any event was terminated by the aforesaid notice. In
view thereof it cannot be said that the said lease in favour of the plaintiffs
was created when the earlier lease was in existence. In fact, Since
December, 1977, the status of Aruna is clearly that of a trespasser since her
inception having regard to the fact that Prafulla lost his right to represent
the estate of Probodh during his lifetime. Prafulla has lost his right to be a
legal representative of Probodh since 29 th May, 1959 when the grant in
favour of Prafulla was revoked. The question arises did Aruna had any
other status in the suit property? The sub-tenancies were not in
accordance with the Rent Act of 1950 and/or the Rent Act of 1956 or the
Rent Act of 1997. None of the applicants have disclosed any document to
show that sub-tenancies were created either with the consent of Deboprasad
or Dhruba. Creation of any sub-tenancy during the pendency of the suit
and after the notice to quit is hit by the doctrine of lis pendens. Any sub-
tenancy prior to notice to quit has to be in accordance with the Act of 1950.
The sub-tenants were clearly aware of the pendency of the earlier suits as
well as the present suit. In fact, on 18th June, 1985, the Special Officer was
appointed to make enquiry from Aruna and the tenants and/or occupiers of
the property and submit a report containing the details and particulars of
such tenants and/or occupiers and the amount of rent and/or occupation
charges paid by them and other details regarding the tenancy. The Special
Officer filed a report wherefrom it appears that S.Bose, B. Mitra, Industrial
Equipment, Sarkar Films, Arch Industrial Corporation, N.D. Arora, N. Palit
and J. Biswas were in occupation of Room Nos.1,8, 14, 9, 18, 22 and
litigations were pending in respect of N. Palit and J. Biswas. The said
report also records the name of Mr. Arun Nath, M/s. Gree Studio, Madras
Film and Mr. A. Jain, G.D.M. Co-operative Society Ltd., M/s. Chandan
Enterprises and Mr. Narayan Das Arora as occupants under different
persons who claimed tenancy in respect of the said property. Apart from
the aforesaid persons, no other persons were found to be in actual
occupation of the suit premises. In course of hearing, the applicants have
furnished a list of 51 occupants out of which Serial Nos.1 to 32 were
persons and/or entities who claimed to be in possession between 1950 and
1983. It appears that even during the pendency of the eviction suit being
Suit No.1059 of 1984, sub-tenancy was created without the consent of the
owner of the property. In fact, the appellate decree records that the
Corporation of Kolkata collected amounts from the defendant's sub-tenants
on account of rates and taxes. The original plaintiffs nor the substituted
plaintiffs have accepted the sub-tenancy. The onus is on the applicants to
establish that the sub-tenancies were created in accordance with prevailing
law and the statute. All the three Rent Control Acts from 1950 till 1997, a
specific procedure from creating sub-tenancy is mentioned. It has to be in
writing and with the consent of the owner of the landlord. In absence of any
of such evidence, the obstructionists became trespassers in respect of the
said property. It is also significant to note that although the obstructionists
were at least aware of the present suit but did not make any attempt to
exercise their right under Section 16(2) or 16(3) of the 1956 Act. They knew
that die is cast and bolt is impending. So "the tree must fall". Still then
they did not feel it necessary to safeguard their interests.
The other issue on which much argument has been made is with
regard to the plaintiffs' right to seek eviction of Aruna and others on the
basis of the notice to quit issued by Deboprasad against Prafulla.
The lease deed has to be read as a whole to understand the rights
conferred upon the lessee, namely, the present plaintiffs. The plaintiffs
have performed their obligation by depositing the security amount and
pursuing the suit filed by Deboprasad till Dhruba died. The present
plaintiffs under the lease deed have an independent right to obtain vacant
possession of the suit property as such right was conferred upon the
plaintiffs by Dhruba. Inasmuch as Aruna forfeited her right to resist the
eviction suit having not deposited rent after December, 1977, her eviction
was only a fait accompli. Clause 9 of the order of the Appellate Court has
snatched away such right for ever. However, till the death of Dhruba, it
appears that the suit was pending.
Section 109 of the Transfer of Property Act gives transferee only those
rights which the transferor had. Section 109 deals with cases where a lessor
while there is a subsisting lease in his favour transfers his interest in the land to
a third party and the third party or the transferee takes it subject to certain
liabilities if the lessor's tenants or lessee so elect. At the time of execution of the
lease deed on 6th February, 1978, there was no subsisting lease in favour of
Aruna. The question here in whether Aruna had any interest in the property at
all, save and except a possessory right till the suit for eviction is decided. The
possession of Aruna in the suit premises is of a trespasser. In any event, defence
in the eviction suit of 1954 was struck off by reason of default in depositing the
monthly rent in terms of the order of the Appellate Court dated 11th September,
1963 since December, 1977. For eviction of a trespasser there is no law which
requires that prior to the eviction of such trespasser a notice to quit is to be
served upon the trespasser. Filing of a suit is itself a notice to a trespasser.
Since the lessee by virtue of the lease is entitled to exercise all the rights of the
lessor and such right having not denied by the defendant nos. 3 and 4, the lessor
was entitled to file a suit on the basis of the original notice as well as on the
ground of sub-letting. In any event, any objection with regard to service of a
prior notice before filing the suit was not specifically taken in the written
statement nor carried to trial by the defendant No.1.
Section 109 enables the transferee to exercise all rights of the lessor,
including the right to terminate a lease by giving a notice to quit. Since the
status of the defendants became trespasser when the present suit was filed there
is no requirement to serve any such notice on the defendant Nos.1 and 2. In any
event, the defendant No.1 although in the written statement has raised the issue
of maintainability but ultimately did not press such defence.
The argument on concurrent lease to invalidate the second suit perhaps
proceed on the basis of interpretation of the phrase "any of his interest therein"
appearing in Section 109 of the Transfer of Property Act which means those
interest which the lessor was capable of transferring after execution of the fresh
lease. Once a lease has been executed and the lessee has been given right to
enjoy the property, landlord cannot have such right any more; the only right that
he is capable of transferring at that point of time is the lessor's right. As on the
date of execution of the lease deed there was no subsisting lease. Both Prafulla
and Aruna lost their opportunity to contest the suit. Their occupation was
precarious. Once a monthly tenancy is terminated by notice to quit there is no
requirement to issue another notice as the lessee is bestowed and vested with the
same rights that the lessor had in relation to Aruna. The surrender of the
defendant no.1 cannot be objected by the applicants as they have no title to
support their claim over and in respect of the property.
The defendant nos. 3 and 4 having not opposed the claim of the plaintiffs
that the lease dated 6th February, 1978 is subsisting between them the right to
recover possession on the basis of the original notice to quit is available to the
plaintiffs as it follows from the tenor of the lease agreement which not only gives
right to the lessor to pursue the suit of 1954 for eviction but also right to obtain
vacant possession on its own right as lessees coupled with the lessors obligation
under Section 108 (b) to put the lessees in possession. Mere failure of the
defendant nos. 3 and 4 not to revive the suit after the death of Dhruba does not
take away the valuable right of the plaintiffs to sue for eviction of the defendant
nos.1 and 2 and requires the defendant nos. 3 and 4 to perform their obligation
as lessees of the suit property which enjoins them to hand over vacant
possession of the suit premises and put the plaintiffs in possession of the
property.
Although the status of the applicants are not of sub-tenants, even if it is
regarded to be so a sub-tenancy created in violation of the Rent Control Act,
1950 is not enforceable.
A sub-tenant is bound by the decree for eviction of the tenant if the decree
is based upon a ground which determines the sub-tenancy and he may then be
removed in execution of the decree. However if a sub-tenant claims a statutory
right to occupy a property independently of the tenant under the Rent Control
laws, he is not a representative of the judgment-debtor tenant and is not bound
by the decree of ejectment and he may not therefore be removed in execution of
the decree against the tenant. He is therefore entitled to resist execution of the
warrant and if he is dispossessed, he may apply under Order 21, Rule 100 for
restoration of possession.
The mere fact that the Judgement-debtor has filed the written statement
but did not ultimately contest the suit does not mean that the decree is obtained
by collusion. A similar situation occurred in Rupchand Gupta Vs. Raghu
Banshi reported at AIR 1964 SC 1889. In that case, the landlord brought a suit
against his lessee for ejectment after serving a valid notice to quit but without
impleading the sub-lessee as defendant. The lessee did not contest the suit in
pursuance of his agreement with the plaintiff landlord and an ex parte decree
was passed. The sub-lessee thereupon brought a suit against the landlord and
the lessee for a declaration that he was not bound by the decree which had been
obtained by collusion between the defendants in order to injure the plaintiff and
to evict him from the premises without a decree being passed against him. The
suit was dismissed on the ground that the plaintiff failed to establish collusion.
On such facts it was held that the suit was rightly dismissed. The mere
fact that the sub-lessee was not impleaded or that the lessee did not actually
contest the suit did not render the decree passed in the suit as collusive
especially when it is clear that the defendant No.1 had not even a plausible
defence to the claim for ejectment. Collusion in judicial proceedings is a secret
arrangement between two persons that the one should institute a suit against the
other in order to obtain the decision of a judicial tribunal for some sinister
purpose.
Where the landlord institutes a suit against the lessee for possession of the
land on the basis of a valid notice to quit served on the lessee and does not
implead the sub-lessee as a party to the suit, the object of the landlord is to eject
the sub-lessee from the land in execution of the decree and such an object is
quite legitimate. The decree in such a suit would bind the sub-lessee. (See
Suresh Chandra Jain Vs. IIIrd Addl. District Judge, Mathura & Ors.
reported at (2001) 10 SCC 508 Paragraph 6, H. Seshadri Vs. K.R. Natarajan
& Anr. reported at (2003) 10 SCC 449 Paragraph 13)
This may act harshly on the sub-lessee, but this is a position well
understood by him when he took the sub-lease. The law allows this and so the
omission cannot be said to be an improper act. The mere fact that the defendant
agrees with the plaintiff that if a suit is brought he would not defend it, would not
necessarily prove collusion. It is only if this agreement is done improperly in the
sense that a dishonest purpose is intended to be achieved that they can be said
to have colluded.
Rupchand Gupta (supra) has been followed in a fairly recent decision of
our High Court in Birla Corporation Limited Vs. Basant Properties Limited
reported at 2011 (3) CHN (Cal) 193.
Even prior to the 1956 Act, the creation of sub-lease was governed by
Section 13 of the Rent Control Act, 1950. Section 13(1) requires that if a sub-
lease is created by a tenant without the consent of the landlord such sub-lease
shall not be binding on such non-consenting landlord. Section 13(1) as relevant
for the present purpose as stated below:-
"13(1) Notwithstanding anything contained in this Act, or in any other
law for the time being in force, if a tenant inferior to the tenant of the first
degree sub-lets in whole or in part the premises let to him except with the
consent of the landlord and of the tenant of a superior degree above him,
such sub-lease shall not be binding on such non-consenting landlord; or on
such non-consenting tenant."
The law that was prevailing at that point of time makes it clear that under
the general law, after the termination of the head lease, the sub-tenants hold on
a precarious title, and when the tenancy under the head lease is terminated,
their right to possession terminates too. Unlike trespassers, they hold over
without right and in the suit for ejectment on the head lease, they are in the
same position as trespassers and there was nothing to protect them against the
landlord with whom there was no privity of contract. A person in the position of
a lessee can sue a person for eviction whom he finds in occupation of a land
given in lease to him provided such person is not in occupation under a prior
lease and such lease is valid and subsisting when the suit for eviction is filed by
the subsequent lessee otherwise it would fall foul of Paragraph 33 of
Sambhunath Mitra (supra) which has stated the law on this subject in the
following words:-
"33. Therefore, we are of the view that the lessor can create a third
party's interest in the leasehold property either by creating sale deed or deed
of exchange conveying lessor's right or making gift or creating mortgage but
having himself divested of the right of the enjoyment of the property and
reserving only lessor's right, the lessor cannot further create any lease.
Lease is a peculiar doctrine of separation of title and possession. On
execution of a lease, the title remains with the lessor but the possession goes
to the lessee and once such document is executed, the lessor is capable of
only transferring his title to the property by executing deeds of sale,
exchange, mortgage, or gift but cannot transfer the right of enjoyment over
again as he is already divested of such right at the time of creating the first
lease. Therefore, we agree with the view taken in the subsequent case of
Swapan Kumar Dutta v. Dharam Chand Jaiswal and Anr., reported 2002(2)
CHN 627 relied upon by Mr. Basu. We, consequently, find that Emerald
Company Limited could not create any interest in favour of Khaitan
Consultant Limited in the suit property by virtue of lease deeds executed by
it and such being the position, the Khaitan Consultant Ltd, the plaintiff, could
not file any suit for eviction of the alleged trespasser on the basis of right
conferred by the lease deeds executed in its favour."
The requirement of previous consent in writing was considered and
discussed in detail in Biswanath Poddar Vs. Archana Poddar reported at AIR
2001 SC 2849; (2001) 8 SCC 187.
Section 26(2) of the West Bengal Premises Tenancy Act, 1997 in this case
has fallen for consideration. For the purpose of brevity, Section 26(1) and (2) are
stated below:-
"S. 26. Creation and termination of sub-tenancy to be notified.-
(1) Where after the commencement of this Act, any premises is sublet,
either in whole or in part, by the tenant with the previous consent
in writing of the landlord, the tenant and every sub-tenant to
whom the premises is sublet, shall give notice to the landlord in
the prescribed manner of the creation of the sub-tenancy within
on month from the date of such subletting and shall, in the
prescribed manner, notify the termination of such sub-tenancy
within one month of such termination.
(2) Where before the commencement of this Act, the tenant has, with
or without the consent of the landlord, sublet any premises either
in whole or in part, the tenant and every sub-tenant to whom the
premises has been sublet, shall give notice to the landlord of such
subletting in the prescribed manner within [two years] of the
commencement of this Act and shall, in the prescribed manner,
notify the termination of such sub-tenancy within one month of
such termination."
Although under the general law, the tenant enjoys the right to sublet
without the landlord's consent but such sub-tenant is bound by the decree for
eviction passed against the tenant and cannot resist such eviction. However,
both under the West Bengal Premises Tenancy Act, 1956 and under the present
Act, the tenant cannot sublet without the written prior permission of the
landlord. Section 26 of the 1997 Act is the same as Sections 14 and 16 of the old
Act of 1956. Sections 14 and 16 of the 1956 Act reads:-
"S.14.Restriction of subletting.- (1) After the commencement of this
Act, no tenant shall, without the previous consent in writing of the
landlord, -
(a) sublet the whole or any part of the premises held by him as a
tenant; or
(b) transfer or assign his rights in the tenancy or in any part
thereof.
(2) No landlord shall claim, demand or receive any premium or
other consideration whatsoever for giving his consent to the subletting
of the whole or any part of the premises held by a tenant.
S.16.Creation and termination of sub-tenancies to be notified. -
(1) Where after the commencement of this Act, any premises are sublet
either in whole or in part by the tenant with the previous consent in
writing of the landlord, the tenant and every sub-tenant to whom the
premises are sublet shall give notice to the landlord in the prescribed
manner of the creation of the sub-tenancy within one month from the
date of such subletting and shall in the prescribed manner notify the
termination of such sub-tenancy within one month of such termination.
(2) Where before the commencement of this Act, the tenant with or
without the consent of the landlord, has sublet any premises either in
whole or in part, the tenant and every sub-tenant to whom the
premises have been sublet shall give notice to the landlord of such
subletting in the prescribed manner [within six months] of the
commencement of this Act and shall in the prescribed manner notify
the termination of such sub-tenancy within one month of such
termination.
(3) Where in any case mentioned in sub-section (2) there is no
consent in writing of the landlord and the landlord denies that he gave
oral consent, the Controller shall, on an application made to him in this
behalf either by the landlord or the sub-tenant within two months of
the date of the receipt of the notice of subletting by the landlord or the
issue of the notice by the sub-tenant, as the case may be, by order
declare that the tenant's interest in so much of the premises as has
been sublet shall cease, and that the sub-tenant shall become a tenant
directly under the landlord from the date of the order. The Controller
shall also fix the rents payable by the tenant and such sub-tenant to
the landlord from the date of the order. Rents so fixed shall be
deemed to be fair rent for purposes of this Act."
There is practically no difference between the new law and the old law as
regards statutory requirement of giving notice for creation and termination of
sub-tenancies except that the notice is to be given within two years of the
commencement of the Act of 1997. Section 14 of the 1956 Act and Section 5
sub-section 5 of the present Act, the requirement of a written prior permission of
the landlord is essential. It has clearly provided that no tenant shall sublet
premises without the consent of the landlord in writing. Over and above, this
prohibition of Section 16 of the 1956 Act made specific provision for giving notice
both by the tenant as well as by the sub-tenant as well as the creation of sub-
tenancy after the introduction of the 1956 Act. In respect of sub-tenancy created
prior to 1956 sub-section 2 of Section 16 of 1956 Act also provided for giving
notice both by the tenant as well as by the sub-tenant. Rule 4 of the West
Bengal Premises Tenancy Act, 1956 requires the notice under Section 16 to be
given by registered post with acknowledgement due and such notice is to contain
the particulars specified in the said rule giving of such a notice is mandatory.
In Biswanath Poddar (supra) the Hon'ble Supreme Court held that unless
requirement of 1956 Act is complied with the provision of Section 16 and the
mandatory requirement of a notice under Section 16(1) was issued, the sub-
tenant has no right to challenge the decree of eviction passed by the Court even if
such sub-tenant has not been impleaded.
Section 26(2) deals with pre-Act sub-tenancy whether such sub-tenancies
were with or without the landlord's consent. Both the tenant and the sub-tenant
were to give notice of the creation of pre-act sub-tenancies. Such notice has to
be issued within two years of the date of commencement of the 1997 Act. The
manner of service of notice has been prescribed in Rule 12 of the West Bengal
Premises Tenancy Rules, 1999. There is no basic difference between Rule 12 of
the 1999 Rules and Rule 4 of the 1956 Rules. The Rules are identical. Rule 12
has been divided into two laying down the duties to be complied with when the
cases come within the fold of Section 26(1) and the cases coming within the
ambit of Section 26(2) of the Act of 1997. It has to be sent by registered post
with acknowledgement due. The requirement of the first part of sub-section (2) of
Section 26 of the new Act is that there must be notice of subletting once again to
the landlord within two years of commencement of the new Act. The second part
of sub-section 2 requires that tenant and sub-tenant shall notify the termination
of sub-tenancy within one month of such termination. The reading of the said
two sub-sections shows that it is obligatory for every sub-tenant to give notice to
the landlord of the creation of sub-tenancy. Unless this is done a sub-tenant has
no locus standi to come forward and challenge the legality of eviction decree
passed against the tenant unless he alleges fraud. It has to be a fraud going to
the extent of suppression of fact of notice given by him and keeping him in dark
intentionally about the ejectment suit. Then and then only sub-tenant can
oppose the execution of the decree.
In Biswanath Poddar (supra), it was contended that the bilateral
agreement between the tenant and the sub-tenant creating sub-tenancy which
contained clause that the landlord had given consent to sub-let would bind the
landlord and the sub-tenant cannot be evicted and the sub-tenant is a necessary
party in a suit for eviction by the landlord against the tenant was negative. The
decision of our High Court, in Paspur Travels Pvt. Ltd. Vs. Biswanath Poddar
& Anr. reported at 2000(2) CLJ 204 was reversed by the Hon'ble Supreme
Court. It is stated in Biswanath Poddar (supra) that under provisions of the Act
the requirement of previous consent of the landlord as also intimation in writing
in the manner prescribed under the Act by the tenant as well as the sub-tenant
within the time stipulated thereunder being a mandatory requirement, the
creation of sub-tenancy without fulfilling these requirements becomes opposed to
S.14 of the Act. If it is a sub-tenancy created contrary to the provisions of the
Act then as could be seen from S. 13(2) of the Act, it becomes unnecessary for
the landlord to implead the sub-tenant when he seeks to evict the original tenant
on the ground of unlawful tenancy.
In the aforesaid case based on evidence the trial Court had come to the
conclusion on facts that neither of the twin requirements, namely the previous
consent of the landlord and notice in writing by the tenants is fulfilled.
Therefore, it came to the conclusion that there was no obligation on the part of
the landlord to have impleaded the second respondent as a party to the original
eviction petition because the said respondent did not have a legal right to be heard in view of S.13(2) of the Act. A bilateral agreement between the tenant and the sub-tenant to deprive the owner of a statutory right of eviction by a contract inter se between themselves cannot be relied upon and on basis of clause in agreement "and whereas the first party by virtue of the consent of the tenant in respect of the said premises is otherwise empowered to sublet and/or part with possession and/or to let out the said premises or any portion thereof to any person or persons", it cannot be contended the landlord had given previous consent to the original tenant to sublet or part with possession of the premises to any person (s), and therefore, a separate previous consent of the original landlord (the appellant) is not essential. The landlord was not a party to the above agreement. Any statement made in the said agreement would not be binding on the landlord and there being no other evidence to show that in fact there was such written previous consent given by the landlord to create a sub-tenancy. This being a mandatory requirement of law, it was held that the sub-tenant has failed to establish compliance of this mandatory requirement of the Act, i.e., S.14 of the Act.
The language of S.14 clearly bars creation of any sub-tenancy without the previous consent in writing of the landlord. This requirement of notice is further qualified by the prescribed method of issuance of notice which is found in R.4 of the West Bengal Premises Tenancy Rules. The Section also prescribes the time limit within which such notice has to be given. Under R.4 the notice has to be sent by registered post. It also statutory prescribes the contents of the notice and the place to which it should be addressed. All these conditions coupled with the use of the word "shall" both in Section and the Rules indicate that the Legislature intended this requirement of notice under S.16 of the Act to be mandatory. Therefore, the requirement of S.16 is mandatory and not directory.
It has been the consistent view both under the 1950 Act and the subsequent rent legislations that in the suit by a landlord against tenant for ejectment, the said sub-tenants are not necessary parties and, therefore, they cannot object to the delivery of possession on the ground that the decree is not binding as they were not made parties to it. Therefore, the decree for ejectment of the lessee can be executed against the sub-lessees although he was not made a party. The aforesaid discussion is made in order to show the status of the present applicants.
In my view, the right of a lessee to sue for eviction of a person whom he found to be in occupation of the land emanates from Section 108(b) of the Transfer of Property Act. Under Section 108(b) of the Transfer of Property Act, the lessee has a statutory right to force the lessor to put him in possession of the lease property. In fact, the said Section casts that obligation on the lessor. When there is a valid lease in favour of the lessee, the right to property created in his favour and is entitled to have possession and enjoy the lease in accordance with law. Where a lessor failed to perform its part of the obligation, the lessee has a statutory right to enforce performance of the obligation. The grant of lease presupposes on the part of the lessor, an obligation to put the lessee in possession. If he fails to perform that part, he cannot enforce the obligation of the lessee under the agreement. The lessor by granting a lease undertakes to put the lessee into possession and it does not matter that the lessor has not got possession himself. He who lets, agrees to give possession, and not merely to give a chance of a law suit as observed in Coe Vs. Clay; (1829) 5 Bing 440 which decision was followed in several decisions including Kandasami Vs. Ramasami; (1999) ILR 42 Madras 203. It is not the case here that the lessor was not obliged to put the lessee into possession. The conduct of the lessee, namely, the original plaintiffs would show that the original plaintiffs wanted possession and that is why they made an application for substitution in the suit filed by Deboprasad which, however, not allowed. If a lessor fails to give possession, the lessee can maintain a suit on his lease for possession against the lessor and against any third person who may be in possession. (See Achayya (supra) and Ahmadar Rahaman Vs. Jaminiranjan, AIR 1930 Cal 385) Under the Limitation Act, the period will be three years. In the instant case, it cannot be disputed that the suit was filed soon after the application for substitution was disallowed. Although the applicants appeared in possession of various portions of the property but having regard to the fact that from possession since inception was illegal and the plaintiffs for the purpose of the suit had recognized only Prafulla and none-else there could be no requirement to implead the applicants. The principle that in every lease, there is an implied contract that the lessor will give possession of the land to the lessee borrowed from English Law was applied to cases in this country even before the passing of the Transfer of Property Act, 1908. Section 108(b) imposes a statutory obligation to the same effect and is, thus, an enactment in substance of what the law was before.
In Abdul Karim Vs. Upper India Bank Ltd., Delhi reported at AIR 1918 Lahore 238 it was held that the fact that the lessee can take legal proceedings to recover possession himself from the party in occupation will not relieve the lessor from his obligation to deliver possession. "He who lets, agrees to give possession, and not merely to give the chance of a law suit". The persons mentioned in Serial No.33 to 51 were all inducted after institution of the instant suit and cannot be said to be in actual physical possession at the date of institution of this suit. Admittedly none of the applicants have been able to prove that they were inducted with the consent of the original owner as his successor or by the present plaintiffs. They also could not establish any independent title or right to occupy.
At the time when lease was granted in favour of the original plaintiffs eviction proceeding was pending against Aruna and Pramil. The lease was determined long time back. The lessee is claiming under the lease. The lessee is entitled to possession and for that purpose can pursue the remedy as against a person in occupation as the landlord would do.
Even if a view is taken that the applicants were sub-lessees under Prafulla and subsequently under Aruna but having regard to the fact that creation of sub- tenancies were not in accordance with the provisions of the Rent Control Act prevailing at the relevant time and the applicants although had the opportunity to attorn their tenancy in favour of the owner of the property as Prafulla and Aruna were facing eviction the applicants simply kept silent and did not assert their right at all. The applicants have failed to establish any right to occupy the said premises. The factum of actual possession in the absence of any legal basis could only mean an occupation as a trespasser. Moreover, a sub-lessee is protected only if such sub-lessee has taken the aforesaid safeguards.
In such a situation, an allegation of fraud and collusion in obtaining eviction becomes purely academic, and non-consideration of the question of fraud and collusion does not in any manner detract the legality of eviction decree.
Under such circumstances, the applications fail. The money deposited during the pendency of these applications shall stand forfeited and be realized by the decree-holder towards mesne profits. In the event, the applicants file their individual affidavit of undertaking within four weeks from date in E.C. No.146 of 2017 to the effect that they shall vacate their respective occupation by 31st December, 2018, mesne profits for the subsequent periods may not be realized from the applicants failing which the Receiver shall forthwith take steps for obtaining vacant possession of the suit premises from the applicants.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)