Calcutta High Court (Appellete Side)
Keshav Prasad Gupta vs Shyam Sundar Agarwala And Others on 27 June, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
APPEAL FROM APPELLATE JURISDICTION
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.584 of 1989
Keshav Prasad Gupta
Versus
Shyam Sundar Agarwala and others
For the appellant: Mr. Saptangshu Basu
Mr. Supratim Laha
For the respondents: Mr. Jiban Ratan Chatterjee
Mr. Sibasish Ghosh Mr. Sushovit Dutt Majumder Judgement on: 27th June, 2013 Tarun Kumar Gupta, J.:-
The defendant is the appellant against the judgement of affirmation. The respondents as plaintiffs filed a suit for eviction alleging that the predecessor-in-interest Jivan Lal Agarwala, since deceased, demised the suit premises with the defendant appellant for a period of 20 years with effect from 1st August, 1959 by executing a deed of lease dated 15th December, 1959.
It is further case that on the death of the original lessor Jivan Lal Agarwala the appellant plaintiffs stepped into his shoes and received rent from the tenant till August, 1978. It is further case that the defendant failed to pay rent from September, 1978 to July, 1979 and that the deed of lease expired by efflux of time. The plaintiffs sent a notice dated 24th May, 1979 to the defendant through their lawyers under registered cover asking the defendant to hand over the suit property on the expiry of the period of lease. In spite of said notice, the defendant did not vacate the suit premises. Hence was the suit.
The defendant respondent filed a written statement denying material allegations of the plaint. It is the specific case of the defendant that after execution of the deed of lease dated 15th December, 1955 one M/s. Jeevan Prasad, a registered partnership firm, started to grant rent receipts in favour of the defendant admitting the defendant as a tenant under said firm. It is further case that thereafter there was negotiation in between plaintiff No.2 and 3 in one hand and the defendant on the other and that a new tenancy from month to month at a rental of Rs.350/- per month was created.
Learned trial court framed several issues. After contested hearing learned trial court opined that the lease deed was acted upon and that the defendant was not a monthly tenant under the rent law and that the lease was terminated on efflux of time and that in spite of notice the defendant tenant did not vacate the suit premises and accordingly the plaintiff landlord was entitled to get a decree of eviction together with arrear of rent with interest thereupon @ 6% p. a. and also for mesne profits as per law.
Being aggrieved the defendant preferred an appeal being Title Appeal No.430 of 1986 which was also dismissed after contested hearing by judgment dated 22nd August, 1987 and decree thereof. At the time of admission of the second appeal, the following substantial questions of law were formulated.
(1) "For that having regard to the admitted position that the relationship between landlord and tenants commenced from 01.08.1959 and that the so-called lease for 20 years was executed on 15.12.1959 the learned courts below erred substantially in law by not holding that the initial tenancy was governed by the West Bengal Premises Tenancy Act, and the so-called lease dated 15.12.1959 could not defeat or effect such protected tenancy of the defendant / appellants nor it was open to them to contract out of the said Act of the West Bengal Premises Tenancy Act, 1956.
(2) For that the learned courts below erred substantially in law by not taking into consideration the new relationship between the appellant / defendant and the firm M/s. Jivan Lal Darwaka Prasad on the basis of evidence on record and the explanation, if any, of the plaintiff / respondents.
Mr Saptangshu Basu, appearing for the appellant tenant submits that respondent landlords banked a lease deed dated 15th December, 1955 regarding creation of tenancy for residential purposes for 20 years. According to him, said lease deed dated 15th of December, 1959 was given effect from an anterior date 1st of August, 1959 and that a lease under Section 5 of the Transfer of Property Act, 1882 cannot be created with effect from an anterior date. According to him, the lease deed was at best effective from 15th of December, 1959. In that case, he submits, the lease period fell short of 20 years as the date of termination of the lease was 31st of July, 1979. In this connection, he refers a case law reported in 2000(1) CHN 365 (Dipak Sen & Anr. Vs. Smt. Lakshmi Rani Das). In that case a lease was executed on 10th of March, 1966 between the parties commencing from 1st of March, 1966 for a period of 20 years having the expiry date of 28th February, 1986. Hon'ble Division Bench observed that if in a lease deed an anterior date is given for all practical purposes, the relationship will commence from the date of execution thereof. Hon'ble Division Bench referred the matter to the Hon'ble Acting Chief Justice for constituting a larger bench for deciding on the following points.
(A) If a registered deed of lease for a period of 20 years or above is executed by giving its effect from an anterior date thereby the effective period of lease from the date of execution falls short of 20 years, whether relationship created by such lease is governed by the provision contained in the West Bengal Premises Tenancy Act?
(B) Whether Section 5 of the Transfer of Property Act stands in the way of creating a relationship of lessor and lessee for more than one year from a period anterior to the date of execution of the registered deed of lease?
Mr Basu submits that as said referred matter is still pending for decision, no finding should be given in this matter on that issue.
Mr. Basu next submits that it came out from the evidence, both oral and documentary, that the appellant tenant started to run a business in the suit premises which consisted of five rooms only and that it goes to show that the lease deed dated 15th of December, 1959 creating alleged lease for residential purposes was not acted upon. In this connection he refers a judgment reported in 1999 (II) CWN page 56 (Menoka Rani Pal vs. Maya Rani Karmakar). In that case it came out that from inception of tenancy the tenant was running business in the suit premises within the knowledge of the landlord and that transferee landlord filed the suit for eviction on various grounds including the ground of using the same for commercial purposes though it was let out for residential purposes though no document was filed to show that it was let out for residential purposes.
Mr. Basu next submits that if the lease deed is accepted to be valid with effect from 15th of December, 1959, the date of its termination after 20 years of lease period will fall on 14th of December, 1979. According to him, in the case in hand, the notice to quit was served in May, 1979 asking the appellant tenant to vacate the suit premises with effect from 1st of August, 1979 i.e., prior to completion of 20 years and hence the notice was not a valid one. According to Mr. Basu learned courts below failed to take note of these substantial points and accordingly came to wrong conclusion.
Mr. Jiban Ratan Chatterjee, learned senior counsel appearing for the O. P. / landlords, on the other hand, submits that none of the case laws referred by Mr. Basu has any application in the facts of the present case. According to him, the case of Deepak Sen (supra) relates to a lease deed executed in 1966 i.e., after bringing in the statute Sub-Section (2) of Section 3 of the West Bengal Premises Tenancy Act with effect from 25th of August, 1965 through West Bengal Premises Tenancy (Amendment Ordinance, 1965). According to him, in the present case the lease deed was executed in 1959 and hence said amended provision of Section 3 (2) of the Act of 1956 has no application in this case. He next submits that the appellant tenant miserably failed to establish his specific defence case that the lease was granted by partnership firm issuing receipts and not by the respondent plaintiffs or that even after expiry of the lease there was oral agreement of creation of new tenancy at a rental of Rs, 350/- per month. He next submits that though the appellant tenant filed a written statement followed by additional written statement but it was nowhere alleged that the tenancy was granted for commercial purposes or that from the very inception within the knowledge of the landlords he was using the same for commercial use or that his tenancy was governed by the provisions of West Bengal Premises Tenancy Act, 1956. He next submits that in view of absence of any pleading on that score no evidence on that point can be accepted. In this connection he refers a case law reported in 2001 (2) CHN page 579 ((Bazaz Construction & Mining (P) Limited vs. Adhish Chandra Sinha and others). In that case a lease was executed and registered on 12th of July, 1958 for a period of 21 years with effect from 1st of February, 1958 thereby the termination date of lease was 31st of January, 1979. The Hon'ble Court observed that if a registered deed of lease is executed and given effect from a date anterior to the date of execution, in view of the provisions contained in Section 5 of the Transfer of Property Act, the same should be treated to be valid only from the date of execution thereof. He next refers a case law reported in 81 CWN page 1003 (Keshoram Industries and Cotton Mills Ltd. vs. Manindra Nath Sarkar) wherein it was held that the lessee by holding over a lease to be governed under Transfer of Property Act cannot claim the rights of a statutory tenant holding over after the expiry of the lease in terms of West Bengal Premises Tenancy Act, 1956. He also refers a case law reported in (2006) 8 SCC 344 (Pabitra Kumar Roy and another vs. Alita D'Souza) wherein it was held as follows:
"The law is clear that lease deeds for periods of twenty years or more would stand excluded from the operation of the 1956 Act except in matters relating to Sections 31 and 36 thereof, unless the same were terminable before their expiration at the option either of the landlord or of the tenant. In other words, if such a lease is terminated before its fixed period expired, the proviso to section 3(2) would be attracted as a defence against eviction. If, however, the lease was allowed to run its full course, both the lease and the conditions contained therein would come to an end and would cease to be operative and the clause for prior determination would no longer be available as a defence against eviction."
He refers case laws reported in 1989 (1) CHN page 1 (Mahindra & Mahindra vs. Sm. Kohinoor Debi and 2013 (1) CHN (CAL) page 484 (Tara Chatterjee Vs. P. R. Dasgupta) to impress that if a lease for a fixed term with the right or option for renewal in favour of the lessee remains a lease for that fixed term only, until the option exercised, a lease for a fixed term with the right or option in favour of the lessee of earlier termination should also remain a lease for the period fixed, as the option in each case creates, enlarges limits or extinguishes no right, title or interest, until exercised. According to him, in the case in hand also the entire lease period in terms of lease deed dated 15.12.1959 expired without exercising option on either side and hence it remained lease for the period as given in the lease deed.
Section 3 of the West Bengal Premises Tenancy Act, 1956 runs as follows:-
"Certain provisions of the Act not to apply to certain leases. -
(1) The provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian Registrations Act, 1908, where -
(a) such lease has been entered into on or after the 1st December 1948, and
(b) such lease is for a period of not more than 20 years, and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years. (2) Notwithstanding anything to the contrary contained in sub-
section (1) but subject to sub-section (3) of section 1, this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965. :
Provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of sections 31 and 36, shall apply to any premises held under such lease."
The West Bengal Premises Tenancy (Amendment Ordinance, 1956) came into effect with effect from 24.08.1965. The combined effect of sub-sections (1) and (2) of the Act of 1956 may be summarized as follows:-
"(1) The Act shall apply to all leases for less than 15 years. (2) For leases for 15 years or more, if for residential purpose and entered into after 1.12.1948 but before 24.08.1965, only some provisions of the Act will apply, viz., provisions relating to rent and ss. 31 and 36.
(3) For leases for 15 years or more upto 20 years executed between 01.12.1948 and 24.08.1965, if for non-residential purpose, this Act will not apply.
(4) This Act will not apply to leases for more than 20 years, if executed between 1.12.1948 and 24.08.1965.
(5) This Act shall apply to all leases executed after 24.8.1965 terminable at the option of the lessor or lessee. (6) This Act shall apply to leases executed after 24.8.1965 for a period of less than 20 years, whether terminable or not before the expiry of the period at the option of landlord or tenant.
(7) To leases executed after 24.8.1965 for a period of not less than 20 years not terminable before its expiration at the option of the landlord or tenant, only some provisions of the Act will apply, i.e, the provisions relating to rent and ss. 31 and 36.
There is no denial that a lease deed dated 15.12.1959 was executed in between the parties for 20 years with effect from 1st of August, 1959 to 31st of July, 1979.
In view Section 5 of the Transfer of Property Act, 1882 and the case laws referred by learned counsels of the parties the lease in question became effective with effect from 15th of December, 1959 i.e, from the date of its execution and not for the anterior period i.e, 1st of August, 1959. Admittedly, said lease deed dated 15th of December, 1959 was executed by the parties and there was no allegation of fraud, misrepresentation etc. If that be the position then both the parties executed said lease dated 15.12.1959 knowing its contents. As per terms of the lease deed it was a lease for 20 years with effect from 1st of August, 1959 to 31st of July, 1979. As a lease cannot be executed from a date anterior to the date of execution, the lease deed in question is effective from 15th of December, 1959. From the document it appears that the intention of the parties was for creation of lease of 20 years with effect from 1st of August, 1959 to 31st of July, 1979. However, said lease deed is found to be effective only from 15th of December, 1959. That does not mean it will continue for 20 years from 15th of December, 1959. Rather it has to be construed as a document of lease starting from 15th of December, 1959 ending on 31st of July, 1979. In that case it will be a lease for period of 19 plus years but less than 20 years. As this becomes a lease for 15 years or more and entered into after 1st of December, 1948 but before 24th of August, 1965 and for residential purposes only, some provisions of the rent act namely provisions relating to rent provisions of Section 31 and 36 of the Act of 1956 will apply. As such, the lesase in question was to be governed by Transfer of Property Act and the notice of May, 1979 asking the appellant tenant to vacate the suit premises with effect from 1st of August, 1979 was rightly held by learned courts below to be valid ones.
Again even if there were clauses for determination of the lease at the option by either side but none of the parties exercised that option. As such it can be said to be a lease for full period i.e, 19 plus years.
It is true that a point of law can be agitated at any point of time. But if the point of law is based on some factual aspects then such factual aspects are required to be specifically pleaded in the pleadings. In the case in hand, it was nowhere stated in the written statement or even in the additional written statement that the appellant tenant took the tenancy for commercial purposes, or that he used the same all along for commercial purposes within the knowledge of the landlords, or that it was never used for residential purposes. In absence of any such specific pleading in the written statement no evidence either oral or documentary on that score can be entertained. In this connection it may also be noted that the period of occupation of the appellant tenant of the suit premises for the period from 1st of August, 1959 to 14th of December, 1959 i.e, the previous tenancy came to an end by way of implied surrender in view of said lease deed dated 15.12.1959 being effective only from that date. Initial tenancy, even if it was governed by the west Bengal Premises Tenancy Act, 1956, stood surrendered with effect from 15.12.1959 in view of execution of the lease deed between the parties. If that be the position of law in view of the facts and circumstances of the present case then it is clear that learned courts below did not commit any wrong by granting a decree of eviction in favour of the respondent landlords on account of expiry of the lease deed.
The appeal is hereby dismissed on contest.
Send down lower court record along with a copy of this judgment to the lower court at the earliest.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)