Calcutta High Court (Appellete Side)
Sri Subodh Kumar Samanta vs The Secretary on 22 January, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Uday Kumar
F.A.T. No. 269 of 2022
Sri Subodh Kumar Samanta
Vs.
The Secretary, W.B.S.E.D.C.L. and Another
For the appellant : Mr. Probal Mukherjee, Ld. Sr. Adv.,
Mr. Arun Shaw
For the respondents : Mr. Abhratosh Majumdar
Mr. Puspal Chakraborty Mr. Prisanka Ganguly Hearing concluded on : 15.01.2025 Judgment on : 22.01.2025 Sabyasachi Bhattacharyya, J.:-
1. The plaintiff in an eviction suit has filed the present appeal against the dismissal of the said suit on contest.
2. Learned senior counsel appearing for the appellant contends that the learned Trial Judge proceeded on an erroneous premise in holding that the plaintiff has failed to proof that the he is the lessor of the suit property in respect of the defendants and also that the suit was bad for non-joinder of one Sanat Kumar Samanta, who used to take rent from the defendants.
3. Learned senior counsel argues that the appellant has proved that he was a co-owner in respect of the suit property along with one Laxmi 2 Narayan Samanta by virtue of a registered deed of sale dated March 12, 1963, which was marked as Exhibit-1 in the suit.
4. Thereafter, by virtue of a final decree passed in a partition suit, bearing Title Suit No.164 of 2008, on the basis of a Solenama, the plaintiff became the exclusive owner of the suit premises which had been let out to the respondents. The owner, having paramount title, is entitled to get eviction against an occupant/lessee, it is argued.
5. Learned senior counsel cites Dadan Bai wd/o Bhagchand Sindhi v.
Arjundas, reported at (1995) 3 SCC 412, for the proposition that a lessor whose title cannot be disputed by the lessee is an owner, at whose instance eviction proceedings are maintainable.
6. Learned senior counsel next cites Vashu Deo v. Balkishan, reported at (2002) 2 SCC 50, for the proposition that a paramount title holder is entitled to get an eviction decree against a sub-tenant.
7. Learned senior counsel takes the court through the agreement of lease granted in favour defendants/respondents. From the lease deed dated July 16, 1980, it is seen that although Vivekananda Oil Mill, a partnership firm, apparently let out the property to the defendants, in the said deed itself, the partners of the firm were included within the definition of "lessor". Hence, the plaintiff, as one of the partners, could very well maintain the eviction suit as a lessor.
8. Learned senior counsel points out that Sanat Kumar Samanta was appointed by the said lease deed as the agent of the lessor and, as such, is not a necessary party to the suit at all.
9. The appellant contends that in view of the notice under Section 106 of the Transfer of Property Act, 1882 having been proved to be served on 3 the defendants/respondents, an eviction decree ought to have been granted in favour of the plaintiff/appellant.
10. It is further submitted by learned senior counsel appearing for the appellant that by virtue of the Solenama decree passed in the previous partition suit, the appellant became the exclusive owner of the L.R. Plot No.996, where the leased property is situated.
11. It is submitted that the mention of L.R. Plot No.995 (over and above L.R. Plot No. 996) in the plaint schedule is a superfluity and ought to be disregarded, since admittedly the lease was granted only in respect of L.R. Plot No.996.
12. Learned senior counsel appearing for the defendants/respondents controverts the contentions of the appellant and argues that the Transfer of Property Act, 1882 contemplates only a lessor to have the right to file an eviction suit against the lessee. It is submitted that the present case is not one of sub-tenancy, since the plaintiff has categorically stated in the plaint that he had granted the lease, which is belied by the lease agreement itself, which indicates that Vivekananda Oil Mill, a partnership firm, was the lessor and not the plaintiff. The concept of paramount title is not applicable here, since this is not a case of eviction of a sub-tenant but of a direct lessee.
13. Learned senior counsel for the respondents argues that the non-joinder of Sanat Kumar Samanta, the person who was empowered to take rent in the lease deed, was a necessary party to the suit. Thus, the suit was bad for non-joinder of such necessary party as well.
14. Learned senior counsel appearing for the respondents relies on Pulin Behary Shaw Vs. Miss Lila Dey, a Division Bench judgment of this 4 court reported at AIR 1957 627,where it was observed that it is true that under the Indian Law a letter of attornment is not necessary to complete the title of the assignee, but nevertheless, under the proviso to Section 109 of the Transfer of Property Act, the lessee is under no obligation to pay rent to the assignee if he has paid it to the assignor without having reason to believe that there was an assignment.
15. Since learned senior counsel appearing for the appellant had obliquely referred to the mention of the term "owner" in Section 109 of the Transfer of Property Act to contend that the said Act also includes owners within the purview of lessors, learned senior counsel for the respondents addresses such issue and argues that Section 109 is not attracted in the instant case. It is the option of the lessee, if a transferee-lessor is also the owner of the property, to be subject to lessor-lessee relationship with such transferee. In the present case, no case of transfer between the plaintiff and the Vivekananda Oil Mill/lessor has been pleaded or proved.
16. Thus, it is argued by the respondents that the suit was rightly dismissed by the learned Trial Judge.
17. Upon hearing learned counsel for the parties, the court arrives at the following decision:
18. It is to be noted that although only a photocopy of the agreement for lease dated July 16, 1980 was marked as Exhibit-A, the plaintiff/appellant did not object to the same but rather relied on the said document as well. As such, in order to decide the present case, the said lease deed can be looked into.
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19. The conundrum which arises in the present case is whether the appellant, as the owner of the property, is entitled to get an eviction decree; alternatively, whether the appellant can come within the purview of the term "lessor" as used in Sections 105 and 106 of the Transfer of Property Act.
20. From Exhibit-1, the certified copy of a registered deed of sale dated March 12, 1963, it is evident that the plaintiff Subodh Kumar Samanta became a co-owner of the entire property, comprised of R.S. Plot No.753 in the concerned Mouza.
21. From the Solenama (compromise) decree dated February 11, 2009 passed in the partnership suit between the co-owners, bearing Title Suit No.164 of 2008, which was marked as Exhibit-2, it is also clear that the present plaintiff/appellant became the sole and exclusive owner of the part of R.S. Plot No. 753 which was later renumbered as L.R. Plot No.996.
22. Although the suit schedule mentions both L.R. Plot Nos.995 and 996, which were, together, originally R.S. Plot No.753, there is no doubt that the lease deed of 1980 describes the subject-matter of the lease to be confined to L.R. Plot No.996, of which the appellant became an exclusive owner in the year 2009 by virtue of the compromise decree of partition.
23. Before embarking into the consideration of the materials available before the court in the present case, a glance at the judgments cited by the parties would be beneficial.
24. In Dadan Bai (supra),cited by the appellants, the subject-matter of consideration was converse to the present case. Whereas in the instant 6 litigation, the relevant question is whether an owner, although not a lessor, can maintain an eviction suit, it was just the converse in the said case. The Supreme Court, in the said case, while examining the connotation of the word „owner‟ used in Section 23-A(b) of the MP Accommodation Control Act, the Rent Control Law in Madhya Pradesh, held that a lessor whose title cannot be disputed by the lessee undoubtedly is an „owner‟at whose instance theproceedings for eviction were maintainable. Conspicuously, the MP Act provides that the eviction suit can be filed by an „owner‟ and the test of maintainability of the suit was whether the lessor in the said case was an owner. In such circumstances, a lessor with undisputed title was held to be the owner. However, there was no doubt that the plaintiff therein was a lessor.
25. However, the relevant provisions under Chapter-V of the Transfer of Property Act, which deal with lease of immovable property, everywhere contemplate a lessor-lessee relationship. Section 106, which permits eviction with fifteen (15) days‟ notice, empowers the „lessor‟, and not an „owner‟, to issue such notice and file an eviction suit.
26. Section 108 of the said Act also speaks about rights and liabilities of the lessor and lessee and not an owner.
27. VashuDeo (supra), also cited by the appellant, is not germane in the present context as well. The issue which arose for consideration there was whether a sub-tenant inducted by a tenant in the premises governed by the provisions of the Rent Control Law concerned can, during the continuance of sub-tenancy and without vacating the premises, attorn the tenancy in favour of the owner of the premises and 7 thereby refuse to discharge his obligations towards the tenant who admittedly inducted him in the premises.
28. Thus, in the said case, the inter-relationship between the superior landlord, the intermediate landlord/tenant and the sub-tenant was being considered. In the case at hand before us, however, no such relationship has been pleaded by the either of the parties. It is not the case of the parties that the plaintiff let out the property to Vivekananda Oil Mill, which sublet the premises to the defendants. The plaintiff herein claims direct lessor-lessee relationship with the defendant.
29. The concept of paramount title was discussed in Vashu Deo (supra), in the context of such inter-relationship between the three tiers- superior landlord, intermediate landlord (tenant) and sub-tenant. In such context, the Supreme Court ultimately concluded that in order for a direct lessor-lessee relationship to be brought into existence between the superior landlord and the sub-tenant, the intermediate tenancy between the tenant/intermediate landlord and the sub-tenant was to be surrendered/terminated first.
30. Going by such principle, the option before the superior landlord is to terminate the tenancy of his direct tenant (intermediate landlord) first before a direct tenancy can be created with the sub-tenant; alternatively, for the landlord-tenant relationship between the intermediate landlord and the sub-tenant is to be severed before the sub-tenant can become a direct tenant under the superior landlord.
31. Such concept, however, is not attracted to the present case from any perspective.
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32. Even the reliance of the appellant on Section 109 of the Transfer of Property Act in the context of the present lis is misplaced. Section 109 gives an option to the lessee to make a transferee of the lessor to be subject to the liabilities of the lease vis-à-vis the lessee. As per Section 109, at the option of the lessee, either the transferor/original lessor or the transferee/lessor would become the lessor in respect of the lessee. For such option to be exercised, Section 109 imposes a pre-condition that the transferee has to be the owner of the property by such transfer.
33. Such incidents of lease, therefore, entirely operate in the context of a transfer of title/lesser rights by the original lessor to a transferee and the impact of such transfer on the lessor-lessee relationship.
34. Moreover, the said provision does not say that any and every owner would automatically be a lessor under the Act; rather, it indicates that some lessors may be owners whereas all owners need not necessarily be lessors.
35. Nothing hinges on Section 109 in respect of the questionas to whether an owner who is not a lessor is entitled to maintain an eviction suit under the Transfer of Property Act. Hence, the reliance of the appellants on the said Section is irrelevant in the present context.
36. By the same logic, the Division Bench judgment of this Court in the matter of Pulin Behary Shaw (supra), is also not germane here. In the said judgment, the Division Bench of this Court was merely elaborating the concept embodied in Section 109, inter alia, observing that the lessee is under no obligation to pay rent to the assignee if he has paid to the assignor, by virtue of the proviso to Section 109 which stipulates 9 that if the lessee, not having reason to believe that such transfer has been made, paid rent to the lessor, in which casethe lessee shall not be liable to pay such rent over again to the transferee.
37. Hence, none of the cited judgments of either of the parties have any bearing on the issues involved in the instant case.
38. From a careful reading of the provisions of Chapter-V of the Transfer of Property Act, we do not find that an owner, merely on the basis of title, is entitled to issue a notice under Section 106 of the said Act or to seek eviction on the strength of such notice, unless he/she is also a lessor. The paramount stress in the said provisions of the Transfer of Property Act is on the term "lessor". Thus, the argument of paramount title overriding the lessor-lessee relationship for the purpose of maintainingan eviction suit, as advanced by the appellants, cannot be accepted.
39. The next question which, thus, arises is whether the plaintiff can come within the purview of the expression "lessor" vis-à-vis the defendants/respondents/lessees in respect of the suit property.
40. The intrinsic aids of interpretation available in the lease deed dated July 16, 1980, which is an admitted document of both parties, is first to be looked into.
41. Several clues have been left in the said document itself on the above question.
42. In the very first paragraph of the said lease deed, although M/s. Vivekananda Oil Mill, a partnership firm, has been mentioned to be the lessor, the term "lessor" is supplemented therein by a more elaborate description within parenthesis, appearing immediately after the said 10 expression. Such elaboration amplifies the expression to include the "partner or partners for the time being of the said firm and their respective heirs executors, administrators representatives assigns".
43. Learned counsel for the defendants/respondents has contended that the expression "for the time being" restricts the expression "lessor" toonly the existing partners at a particular point of time and as such, do not include the partners as a class within the purview of "lessor" but only the current partner of the day at any given point of time, which necessarily connotes that the inclusion of the partners as "lessor" is transient, not vesting any right as lessor on any of the partners in perpetuity.
44. However, such argument of the respondents is not acceptable in view of the context in which such expression has been used in the lease deed. The lease deed defines the term"lessor" to include partner or partners not only for the time being but also brings within its fold their respective heirs, executors, etc. The inclusion of the heirs of the existing partners lends perpetuity and unambiguously connotes that each of the partners of the firm are also included within the expression „lessor‟ in perpetuity, since such lessorship devolves even after them to their heirs, executors, administrators, representatives and assigns. Hence, the restrictive interpretation sought to be given to the term „partners‟ by the respondents is not tenable in the eye of law and in the context of the specific words used in the lease deed itself.
45. Thus, not only the partnership firm but each of its partners are also lessors in respect of the premises insofar as the lessees are concerned. 11
46. The concept, although at the surface-level different, is ideologically akin to the position of co-owners of a property. Where one of the co-owners or co-lessors institutes an eviction suit against a lessee, legal fiction deems that he or she represents the estate of the other co-owners/co- lessors, unless otherwise proved. Hence, just as one of the co-owners or co-lessors can, on behalf of all the co-owners or co-lessors, maintain an eviction suit against a lessee, one of the partners of the lessor-firm in the can similarly maintain such suit.
47. Also, in the present case, the suit property is admittedly restricted to L.R. Plot No.996, of which the plaintiff/appellant is undisputedly the exclusive owner by virtue of the Solenama partition decree between him and his co-owner, who had previously become the jointowners by virtue of a registered sale deed dated March 12, 1963(which also an Exhibit in the suit).
48. The matter can be viewed from another perspective as well. Unlike a company, which is incorporated under the relevantCompany Law, a partnership in itself is not a separate or distinct juristic entity. Company Jurisprudence contemplates a company as a separate juristic entity in the eye of law, having its separate seal and identity, distinct and different from its directors and shareholders.
49. Whereas the liability of the company vis-à-vis transactions entered into with third parties is limited to the company and the shareholders cannot claim title to the assets of the company, in case of a partnership, the liability of the partners in respect all transactions of the firm is joint and several.
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50. In fact, the jointness and severalty of liability is the cornerstone of the concept of a partnership.
51. It has been well-settled overtime by various judgments of the Supreme Court that a partnership is not a separate or distinct juristic or legal entity by itself like a company but is a conglomeration of its individual partners. The partnership, as a concept, refers to a group of individual partners and the firm name is only the compendious name given to the partnership whereas the partners are the real owners of the assets.
52. Such concept has also been crystallized in Section 4 of the Indian Partnership Act, 1932, which defines a partnership not as a juristic entity but as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively a "firm", and the name under which their business is carried on is called the "firm name".
53. Thus, it is the individual partners, doing business together, who are collectively known as the firm and the business is clothed with a firm name.
54. Such clear distinction between the concept of an incorporated juristic entity or company and a partnership firm has to be borne in mind in deciding the present case as well.
55. Even if it is assumed that Vivekananda Oil Mill, a partnership firm of which the appellant/plaintiff was admittedly one of the partners, was the lessor, fact remains that the plaintiff/appellant, as a partner, is jointly and severally liable for the acts of the partnership and is a joint owner of the assets of the partnership. The fluid expression 13 "partnership", in its generic connotation, includes the plaintiff (who is one of the partners) in his individual capacity as well.
56. Hence, seen from such angle as well, there cannot be any doubt that the lease deed created between the partnership firm and its partners with the lessees/defendants included the plaintiff as a lessor as well.
57. Thus, there cannot be any doubt that the plaintiff/appellant, irrespective of his ownership, is also a lessor in respect of the premises vis-à-vis the defendants/ lessees.
58. As to the minor issue of non-impleadment of one Sanat Kumar Samanta, the learned Trial Judge committed a patent error of law in holding him to be a necessary party. As per Clause (2)(e) of the lease deed itself, Sanat was to be merely the agent of the lessor in the matter of realising bills and making correspondence and, at no point of time, was even contemplated to be a lessor. Rather, it is the principals, that is, the partnership firm and its partners, who were the lessors and the agent Sanat Kumar Samanta merely acted in representative capacity on their behalf. Hence, the ground of non-joinder of Sanat as a party for dismissal of the suit is also tainted by error law.
59. In view of the above discussions, there cannot be any doubt that the plaintiff/appellant was entitled to maintain the suit for eviction against the defendants/respondent.
60. Since the plaintiff/appellant has, in due course of law, proved the service of notice under Section 106 of the Transfer of Property Act, 1882 on the lessees, the plaintiff/appellant is very much entitled to get an eviction decree against the defendants/respondents.
61. Accordingly, the appeal succeeds.
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62. F.A.T. No.269 of 2022 is allowed on contest without any order as to costs, thereby setting aside the judgment and decree dated August 31, 2022 passed by the learned Civil Judge (Senior Division) at Burdwan, District: Purba Bardhaman, whereby the eviction suit of the appellant/plaintiff was dismissed.
63. Accordingly, Title Suit No.41 of 2014 is decreed on contest, thereby granting a decree of eviction to the appellant/plaintiff against the defendants/respondents.
64. However, the suit is remanded to the Trial Court for the limited extent of consideration of the damages, if any, payable by the defendants/respondents to the plaintiff/appellant. For such purpose, the said portion of the reliefs claimed in the suit is segregated from the relief of eviction.
65. It is expected that the learned Trial Judge shall decide such issue and conclude the hearing of such part of the plaintiff‟s claim upon permitting the parties to lead evidence and giving opportunity of hearing to both sides on such limited issue as expeditiously as possible, preferably within Six (06) months from the date of communication of this judgment and decree to the trial court.
66. Insofar as the component of the eviction decree granted above is concerned, the defendants/respondents are granted Ninety (90) days‟ time from date to quit and vacate the premises and to hand over vacant, unencumbered and peaceful possession of the same to the plaintiff/appellant and/or his authorised representative.
67. In default, the plaintiff/appellant will be at liberty to levy execution of the eviction decree with immediate effect thereafter. If so levied, such 15 execution case shall be proceeded with independent of the adjudication of damages by the Trial Court.
(Sabyasachi Bhattacharyya, J.) I agree.
(Uday Kumar, J.)