Patna High Court
Smt. Chapala Debi vs Rakhal Chandra Sen Gupta on 30 January, 1964
Equivalent citations: AIR1964PAT395, AIR 1964 PATNA 395
JUDGMENT H. Mahapatra, J.
1. Plaintiff is the appellant. She brought a suit in the Court of the 3rd Additional Munsif, Patna, for recovery of Rs. 1799/-from the defendants respondents jointly or, is the alternative, from defendant No. 1 alone. Her case was that defendant No. 1 was inducted as a monthly tenant under a lease (Ex'., i) on the nth September 1944 in the premises including that described in Schedule A of the plaint belonging, to the plaintiff's vendor Biseshwar Dey and his other cosharers. The premises are situated ou Ashok Raj Path in the town of Patna. The remises form part of Municipal Holding No. 42, in Circle No. 25. The lease was for a period of eight years and it expired in June 1953. The claim against defendant No. 2 was given up later because he was a sub-lessee under defendant No. 1. In July 1953, there was a partition between Biseshwar Dey and his cosharers and a portion of the lease-hold 'premises fell to the share of Biseshwat Dey and that is indicated in the plaint. Biseshwar Dey had two-ninth share in the premises, his other cosharers having the rest. Biseshwar Dey transferred his interest by three sale deeds to the plaintiff; one was in 1948, the other was in 1950 and the third was in July 1953 after the partition to which a map showing block E corresponding to suit property, was attached. In the first sale deed, one-third interest of Biseshwar Dey in the premises was transferred, in the second similarly another one-third interest was transferred and in the third the remaining one-third interest was transferred to the plaintiff. There is variance between the parties as to what actually was transferred under the third sale deed in July 1953. On behalf of the plaintiff it was asserted that by that document the whole of Block "E" as depicted in the map attached to the sale deed was transferred by Biseshwar Dey to the plaintiff, whereas the defendant contended that it was only the remaining one-third interest in Block "E" that was transferred by that sale deed to the plaintiff. Biseshwar Dey and his cosharers along with the plaintiff instituted proceedings under Section 11 of Bihar Act III of 1947 (Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947) in the Court of the Controller, but those proceedings were abandoned because a notice purporting to be under Section 12 of that Act was given by defendant No. 1 for extension of the period of the lease, and the revisional Court in that proceeding held that the proceedings for eviction of defendant No. 1 on account of the expiry of the period of lease was not maintainable. Thereafter another proceeding was initiated by Biseshwar Dey, his other co-sharers and the plaintiff, after the expiry of the period of one year under Section 12 of the Act, The Controller passed an order of eviction against defendant No. 1 on the 3rd January, 3956- but defendant No. 1 carried the matter to the higher Courts and ultimately that order was confirmed" by the Commisioner in January 1957. The landlords put that order into execution for taking delivery of possession of the premises from defendant No. 1, but up till now they have not succeeded in taking actual possession on account of the resistence offered in the proceeding for execution, which I understand, is now pending in appeal. The present suit was instituted for realisation of damages from defendant No. 1 for his unlawful possession for the period from the 1st September' 1956 to the 31st May 1957, in a portion of the premises that was obtained by purchase by the plaintiff from the owner landlord.
2. Defendant No. 1 raised several contentions against the suit. He denied the title of the plaintiff to the premises and also her right re realise any damages or compensation. He contended that his possession was not unlawful and as such he was not liable for any payment to the plaintiff, or for the mailer of that, to Biseshwar Dey or his heirs or to any of his co-sharers.
3. The trial Court dismissed the plaintiff's suit. But on appeal, that was reversed and damages at the rate of Rs. 3o/- per month has been awarded to the plaintiff from defendant No. 1. Against that the plaintiff has preferred the present appeal in which he claims to be paid Rs. 5/- per day as damages, or at least at a rate higher than that decreed by the appellate Court. Defendant No. 1 has also preferred a cross-objection, challenging the decision of the lower appellate Court that the plaintiff was entitled to any damages at all. It is contended on his behalf that even if the plaintiff is found entitled to any damages, the rate of Rs. 3o/- per month is excessive and the same cannot be more than one-third of one-sixth of the total rent that was payable for the lease-hold premises under Ext. 1, which would come to about Rs. 6/- per month.
4. The main point for consideration in this appeal and the cross-objection is whether the plaintiff is at all entitled to any damages, or in other words, whether the defendant No. 1 is liable to pay any damages for his unlawful occupation of the suit premises. Defendant No. 1 was a tenant under Ext. 1. The period of lease was for eight years. It was extended for another one year under Section 12 of Act III of 1947. On the expiry of that period, what was the position or the legal status of defendant No. 1 when he still continued in possession over the suit premises? Learned counsel for the appellant contended that on the expiry of the lease, the possession of defendant No. 1 was that of a trespasser and, therefore, unlawful. He referred to section is of the Act to show that by efflux of time, 'the lease comes to an end. The definition of "tenant" as given in Section 2 (f) of Act III of 1947 is:
" 'tenant' means any person by whom, of on whose account, rent is payable for a building and includes --
(i) a person continuing in possession after the termination of the tenancy in his favour. . . ." If the premises in occupation of defendant No. 1 comes within the definition of "building" undei this Act, then the aforesaid definition of "tenant" will be applicable to defendant No. 1. In that view, even if the period of lease expired, he will continue to be a tenant. But the position will be different after an order for eviction is passed against him under Section 11 of the Act. Subsection (i) of section n of the Act reads: -
"Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947, and to those of Section 12, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds ....."
Ground No. (e) in Sub-section (i) of section is or the Act states that "in the case of a tenant;
holding on a lease for a specified period, on the expiry of the period of the tenancy". It was on this ground that the eviction order was passed by the Controller against the defendant and later confirmed by the higher authorities. After this order, it cannot be contended that the defendant No. 1 still continued to be a tenant within the meaning of Section 2 (f) of the Act. The termination of tenancy is one thing and eviction order is another thing. The definition does not say that a person continuing in possession after an eviction order is passed against him, will be included in the definition of a "tenant". It cannot be so for the obvious reason. If, after such an eviction order, a person is deemed to be a tenant, then in that case he can also claim not to be ejected from the building without another order of eviction under Section 11 of the Act.
There will be thus a perpetual necessity for eviction orders under section n of the Act until the stage when the person vacates the premises, Ibis absurd position cannot be included within the definition of "tenant", and the legislature was therefore, wise in saying that a person continuing in possession after the termination of the tenancy in his favour will be deemed to be a tenant. This special statute was brought into existence for protecting the tenant from unreasonable eviction. No doubt, section n of the Act contemplates that a tenant shall not be liable to eviction except in execution of a decree for eviction. The execution of decree is a process through which the possession will be recovered by the landlord. But it does not mean that during that process of execution, in spite of the order of eviction, the person in posses sion of the premises will be deemed in law to be a tenant. No doubt, if the matter is taken to higher authorities as prescribed under the Act and if the order of eviction is ultimately set aside, the per son will be relegated to his previous position of a tenant, because in the eye of law, there will be no order for eviction under section IT of the Act, and even if the term of his tenancy would have expired, he would still continue to be a tenant with in the meaning of the definition of the term "tenant". The term of tenancy can expire in cases where a tenant has been inducted for a particular period. If he is a tenant from month to month, and not for any fixed period, in that case, the question of termination of his tenancy does not arise until it is brought about by any process of law. It is not necessary in the present case to consider whether such termination can be effected with reference to the provisions under the Transfer of Property Act. But there is no doubt that in a case where an eviction order is passed against such a tenant, he cannot take advantage of the definition of "tenant" to claim all the benefits under the Act; including that against dispossession.
5. Learned counsel for the respondent relied upon the case of Digambar Narain v. Commis sioner of Trihut Division, AIR 1959 Pat 1 (FB).
There the facts were different. A proceeding against the tenant for his eviction at the instance of the landlord was commenced on three grounds:
(i) breach of conditions of tenancy on account of additions and alterations to the building without landlord's permission, (ji) non-payment of rent and (iii) expiry of the term of the lease. Non-payment ol rent was given up at the time of the hearing.
On the other two grounds, the Controller passed an order of eviction. The appellate Court reversed that order taking a different view about the additions and alterations made by the tenant. The re-visional Court, however, upset the finding of the appellate Court and upheld the order of eviction. At that" stage, the tenant came to this Court with an application under Article 226 of the Constitution to quash the order of eviction passed by the Controller and the Commissioner. A point was raised in argument in that case that the lease was not for any fixed period and, therefore, it was not necessary for the tenant to ask for extension of that period under Section 12 of the Act. In that case the landlord had given a notice to the tenant asking him to vacate the premises, before he initiated the proceeding under section n of the Act. Their Lordships held that the combined effect of Sections 11 and 12 of the Act was that unless the period limited by the lease was extended in accordance with the provisions of Section 12, the tenant was liable to be evicted on the expiry of the period of tenancy under Clause (e) of Sub-section (i) of section n of the Act. There fore, a tenant who occupied a building by virtue of a lease for a fixed term (in -that case it was for seven months) and did not obtain extension of the time in accordance with the provisions of Section 12 of the Act, he could not legally resist the application of the landlord for his eviction on the expiry of the term of the tenancy. An argument was advanced in that case on the basis of Section 116 of the Transfer of Property Act to the effect that as rent had been accepted by the land lord a new tenancy had been created in favour o.f the tenant. While considering that argument the learned Judge who delivered judgment observ ed that without deciding whether the Transfer oi Property Act and particularly Section 116 of that Act would be applicable to cases that are covered by Bihar Act III of 1947, and assuming that Section 116 of the Transfer of Property Act was relevant for consideration, the position was that under Section 116 it was open to a landlord to create a new tenancy by accepting rent, or by giving otherwise recognition to the tenancy during the period that.the tenant holds over on the expiry of the period of the lease, and without any such act on the part of the landlord, there would be no new tenancy or justification for the tenant to continue in possession. But, in view of the definition of "tenant" in Bihar Act III of 1947, even after the expiry of the terms of lease,. if the tenant continues in possession, he will be deemed to have the legal status of a tenant. In other words, the learned Judge's conclusion was-that no act on the part of the landlord as contemplated by Section 116 of the Transfer of Property Act was necessary to clothe the tenant with tenancy even after the expiry of the term of the lease, and that position will be binding upon the landlord. Their Lordships did not consider in that case, what was the legal status of the person, that is, whether he was a tenant still after an order of eviction was passed against him under section 11 of the Act. Learned counsel for the respondent cannot, therefore,, have any assistance from that decision in support of his contention that although an order of eviction was passed against his client on the 3rd of January 1956, under Section 11 of the Act, he had still the legal status of a tenant and his possession was, therefore, lawful within the meaning of the definition given in Section 2 (f) of the Act. All his efforts-to contest that order of eviction under the provisions of the Act were not successful and the final order was passed, I am told, in January 1957, by the Commissioner. The period for which the present claim was laid was from the 1st September 1956, that is, subsequent to the passing of the order of eviction. The ' possession thereafter of the-defendant cannot, therefore, be the possession of a tenant, in other words, lawful.
6. Learned counsel for the respondent contended that as long as the defendant No. 1 was not dispossessed in the proceeding for execution of the order of eviction, his possession was not unlawful, because that is the prescribed manner in which his possession could be brought to an end and when the plaintiff has not succeeded in that effect he cannot label the defendant's possession as unlawful and proceed to recover any compensation from him on that basis. This approach cannot be defended. The period of execution of eviction order cannot be used against the landlord in whose favour such an order has been passed. The real question for consideration will be whether the plaintiff had the right to possession on the passing of the order of eviction by the Controller under Section 11 of the Act, because it is well established that a person who has a right to possession of a land will be entitled to all profits arising out of such land since the time he becomes entitled to possession. Right of recovery of possession is to be distinguished from the right of possession. In many cases, recovery of possession cannot materialise without the aid of the Court, and that follows the right to possession. When a suit for recovery of possession is brought in a Court against a defendant, the defendant continues his possession in respect of ' the suit land till a decree is passed in favour of the plaintiff and even thereafter till the plaintiff succeeds in taking possession through the aid of Court in execution of the decree for eviction. In that case, the right of recovery of possession is based on the right to possess on the part of the plaintiff. It cannot be conceived that the defendant against whom at decree for eviction is passed in an action for recovery of possession of land from him, will have a good defence against the claim of the plaintiff for mesne profits during the period the defendant still retains the possession of the land for which a decree for recovery of possession has been passed against him. In the same view, in the present case when an order for eviction was passed under Section 11 of the Act against the defendant, he cannot contend that the plaintiff who secured such an order in her favour will not be entitled to the profits of such land during the period the defendant continues his possession in spite of that order.
The process of execution is only the machinery for enabling the decree-holder or the holder of an eviction order under Section 11 of the Act to obtain possession from the defendant. It may be argued with justification that in a case which is covered by Bihar Act III of 1947 and there is no lease for any fixed period the right to possession accrues to the landlord only when an order for eviction of the tenant is passed under section n, and his right to recover possession also accrues to him on, the passing of such an order. In that case, both the rights commence simultaneously. But there may be cases in which a tenant comes into possession under a lease for a fixed period. After the expiry of the lease the landlord may not take any proceeding under section 11 (i) (e) of the Act. His right to possession may accrue to him on the expiry of the lease. But his right to recover possession from the tenant will not arise till an order is passed under Section 11 of the Act against the tenant. That is an instance in which there is a difference between the time of commencement of the two rights. In the present case, the term of eight years' lease was extended under Section 12 by another one year, on the expiry whereof the right to possession accrued to the Iandlords5 but their right to recover possession from the tenant did not come to them till the Controller passed the order on the 3rd of January 1956 for eviction of the defendant.
7. Learned counsel for the appellant placed trie case of Midnapore Zamindari Co. Ltd. v. Naresh Narain, I. L. R. 39 Cat 220 to support his contention that as soon as one becomes entitled to possession (distinguished from recovery of possession), he will be entitled to mesne profits from the other party who still retains possession and whose possession becomes that of a trespasser. In that case, the plaintiff brought a suit for recovery of possession and it was decreed against A. A had sold the property to B and C. The plaintiff executed the decree against A, B and C for possession and mesne profits. B and C objected on the ground that they were not liable for mesne profits because they were not the legal representatives of A. It was held that they were so liable on the principle that the plaintiff had the right to possession and, therefore, he was entitled to mesne profits in respect of the land for which he later on got a decree for recovery of possession. In the case of Loknath Singh v. Dwarika Singh, ILR 10 Pat 329 : (AIR 1931 Pat 233), the plaintiff's suit was for mesne profits from the defendant without asking for a relief of recovery of possession. The contention of the defendant was that such a suit was not maintainable. That suit was instituted after the expiry of the lease period. The lessee was one Mathura Singh? who informed the plaintiff that he had given up the lease 011 the expiry of the period of lease. But the other members of the family who were defendants 1 to 4 in the action refused to give up possession. The lessor plaintiff, therefore, brought a suit against them and succeeded in getting a decree for mesne profits. The basis on which the decree was passed appears to be that the plaintiff was entitled to mesne profits because he had the right to posses--sion and without exercising his right to recover" possession he was entitled to mesne profits on his right to possession.
In the case of Bhaiya Punjalal Bhagwandin v. Bhagwatprasad, AIR 1963 SC 120, the. distinction. between the right to possession-, and right to recovery of possession was very well discussed and brought out as also the corresponding other rights that accrue to a person having: either of the two of kinds of right, have been noted. In the case of Dr. K.A. Dhairyawan v. J. R. Thakur, AIR 1958 SC 789, the lessee was permitted to construct buildings on the demised land and there was a condition in that lease that on the expiry of the lease, he will deliver back the land" in the same position as it was and he will have-the right to remove his constructions unless the lessors wanted to have them, in which case they would pay the price thereof as may be determined. After the lease period the plaintiff-lessors sued for a declaration that they were entitled to the profits and rent received by the latter from other persons for the demised land after accounting. Under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the plaintiffs could not recover possession from the defendant without initiating proceedings thereunder and without having ground for such an eviction as prescribed under the Act. On that account, the lessee had interest in the lease-hold land as before even after the expiry of the period of the lease. On those facts, it was held that the plaintiffs were entitled to profits arising ' out of that premises after accounting with interest from the defendant, although they had no right to recover possession of the lease-hold land from him. All these cases support the contention of the appellant that in the present case if the plaintiff, or for the matter of that, the landlord, had the right to possession after the eviction order was passed by the Controller under section 11 of the Act against the defendant on the 3rd of January 1956, she would be entitled to mesne profits for the period that the defendant may retain his possession, for whatsoever reason it may be, after that order.
8. For the defendant, it was urged by the learned counsel that the present plaintiff had no right to possession and, therefore, she was not entitled to any mesne profits. Learned counsel pointed out that she was a purchaser from Biseshwar Day, one of the cosharers of the premises, by three sale deeds. By the former two, she obtained two-third of the interest that Bisesh-war Dey had. Biseshwar Dey admittedly had two-ninth share in the property, the rest belonging to his other co-sharers. By the third sale deed, the plaintiff was given the remaining one-third interest of Biseshwar Dey. According to the defendant, the plaintiff had only one-third interest in block "E" in the map appended to the third sale deed of the plaintiff. Ext. F is a judgment dated the 9th of October 1958, which was passed in Title Suit No. 23 of 1956 brought by the present defendant for declaration that the sale deeds executed by Biseshwar in favour of the present plaintiff in respect of the suit premises were illegal and invalid. Similar sale deeds executed by some other co-sharers were also under challenge in that suit. Besides this, the present defendant claimed in that suit specific performance of contract against the co-sharer landlords, to the extent that he had the first option of purchasing the property according to the stipulation in the deed of lease (Ext i). In that suit, it was held that the first two sale deeds in favour of the plaintiff were not binding against the present defendant. I am told, that judgment is under appeal. On the basis of that judgment learned counsel for the defendant urged that the plaintiff cannot base her right to mesne profits on the basis of all the three sale deeds. At the most, her basis may be confined to the third sale deed which has not been declared in the former suit not binding against the present defendant. In that case, the amount of compensation will be restricted to one-third of block "E". The counter argument in this respect on behalf of the plaintiff was that that suit was instituted in 1956 after the eviction order and the judgment was passed during the pendency of the present litigation. The basis of the present action was "the Controller's order of eviction and that should not be confounded with the findings in the judgment Ext. F. Secondly, that judgment has not become final, inasmuch as it is pending in appeal, where the present plaintiff wants to assail the correctness of the same. A judgment like Ext. F 'becomes relevant under Section 43 of the Indian Evidence Act. What will be its evidentiary value :is to be judged on the facts and the circumstances of the caase. The relevancy of the document is determined under section 43 of the Indian Evidence Act. The Court is only to keep that judgment if already final, in view in deciding the issues raised in the present case. I may have to refer to this judgment at a later stage when I conclude about the course that should be adopted in this appeal. Another Title Suit No. 35 of 1957 was also brought by the present defendant in which he asked the Court to declare that the eviction order passed by the Controller was invalid and without jurisdiction. His suit was dismissed, but that is also pending in appeal.
9. Learned counsel for the appellant further contended that if the stand taken by the present defendant in Title Suit No. 35 of 1957 was that Bihar Act III of 1947 was not applicable to this case, then on that -view, the landlord's right to possession accrued to him immediately on the expiry of the period of lease, that is, eight years, in which case the landlord would be entitled to mesne profits. This argument is not very relevant because I have already held that the landlord will have a right to possess on expiry of a lease for a fixed period, even in a case to which Bihar Act III of 1947 applies. The basis of the plaintiff's suit and the cause of action in the plaint were referable to the order of eviction passed under Section 11 of the Act. What stand the defendant took in his subsequent suit is an entirely different matter and that cannot be superimposed upon the present litigation.
10. Learned counsel for the defendant raised another contention with some seriousness. It was to the effect that the plaintiff's suit was one for recovery of damages and not for mesne profits. There was a distinction between the two. The plaintiff could not be allowed now to turn back and claim mesne profits on the ground that she was entitled to the same as she had the right to possession of the land after the passing of the eviction order against the defendant. I have already said that the present plaintiff was one of the applicants in the proceeding under Section 11 of the Act. It is true that in schedule B of the plaint the plaintiff stated her claim to be damages at the rate of Rs. 5/- per day from the 1st of September 1956 to the end of May 1957. She also claimed the Municipal taxes for nine months and interest on the same. In the body of the plaint in paragraph 10, she also stated that she claimed from the defendant damages at the same rate. But in paragraph 5, she stated that an order of eviction had been passed against the defendant on the 3rd of January 1956 and the defendant became a trespasser thereafter and had no right to remain in possession of the premises against the wishes of the plaintiff. In the following paragraph, she stated that she had sent a registered letter to him asking to give up possession of the premises, and she claimed damages at the rate of Rs. 5/- per day in case the defendant defaulted in delivering possession to her. Towards the end of that paragraph, she spoke about the defendant retaining his illegal possession and persisting on his wanton trespass. Trespass has also been mentioned in paragraph 7 of the plaint.
Reading the plaint as a whole, I do not feel any doubt in my mind that the plaintiff claimed compensation from the defendant on account of his unlawful possession. The words "damage" , "compensation" and "mesne profits' are sometimes loosely used as inter change able words. The purpose of the suit and the basis thereof can well be determined on reading the plaint as a whole. If the plaintiff characterised defendant's possession to be unlawful, and if she claimed certain money which she would have got from the premises from the defendant, that can well come within a claim for mesne profits or profits arising out of the premises during the period of unlawful possession of the defendant. I must say that the plaintiff did not disclose the basis of the rate of compensation at the rate of Rs. 5/- per day. Learned counsel stated that in evidence the plaintiff brought out that the defendant was receiving some money from other persons, who are on the premises, and she was entitled to all money that came to him by way of profits out of the said premises. Secondly, she also claimed what she could get by way of profits from this land if she were put into possession. These are matters, however, to bo determined with reference to the evidence^ if the plaintiff is held to be entitled to mesne profits in the present suit from the defendant.
11. Learned counsel referred to the case of Chiranji Lal v. Kunwar Prasad, AIR 1963 All 249, where an eviction order had been passed tender similar Control Act prevailing in Uttar Pradesh. There the landlords were held to be entitled to mesne profits for the period after the eviction order was passed, and it was held that such compensation will not be necessarily at the rate of rent which the ex-tenant was paying, but will be on a consideration of the real value of the property involved. Those are considerations for determining the nature of mesne profits.
12. For the reasons given by me, I am of the view that the plaintiff appellant will be entitled to mesne profits in respect of the suit premises from the defendant No. 1 with effect from the date of eviction order passed against him. The period of claim in the present suit is from the 1st September 1956 to the 31st May 1957. What will be the measure of mesne proiits cannot be determined by me in this second appeal. The lower appellate Court decreed at the rate of Rs. 30/- per month. That is contested by both sides. Plaintiff appellant claimed that it should be more, while the defendant respondent claimed that it should be much less, not more than Rs. 6/- a. month. The extent to which the plaintiff appellant has obtained title by transfer from Biseshwar Dey and the profits that comes out in respect of the suit premises as described in Schedule A of the plaint, and the plaintiff's share in that, if any, have to be determined before the actual amount of mesne profits can be decreed in favour of the plaintiff. The trial Court had completely dismissed the suit. The lower appellate Court proceeded on the basis that about Rs. 30/- was the rental payable for block "E" which corresponds in its view, to one sixth of the premises that had been leased to the defendant. This is not a correct approach. I would, therefore set aside the decree of the lower appellate Court and remand the case to it for termination of the amount of mesne profits on the evidence already on the record. In view of the circumstances of the rase, the parties will bear their own costs in this Court.
13. The appeal is accordingly allowed the decree of the lower appellate court about the amount of mesne profits is set aside and the case is remanded to it for disposal according to law on the lines indicated above. The cross objection is disnrssed but without costs.