Calcutta High Court (Appellete Side)
Suman Dhawan & Ors vs Anath Nath Pal & Anr on 10 March, 2010
1
In The High Court At Calcutta
Civil/Appellate Jurisdiction
Present :
The Hon'ble Justice Prabhat Kumar Dey
S.A 287 of 2005.
Suman Dhawan & Ors.
-vs-
Anath Nath Pal & Anr.
For the appellant : Mr. Samit Talukdar, Sr. Adv.
Mr. Harish Tandon
Ms. S. Tussian
For the respondent : Mr. Sudhish Dasgupta, Sr. Adv.
Mr. Saptangshu Basu
Judgment on : 10.3.2010
PRABHAT KUMAR DEY, J.:
Title Suit no. 88 of 1985 which was filed by the respondents/plaintiffs against Sakhir Chand Dhawan, since deceased praying for ejectment on the ground of expiry of lease on 1.12.1984 was decreed by the Civil Judge (Junior Division), 4th Court, Sealdah on 2.7.1998 and the decree was affirmed by the first appellate court in Title Appeal No. 146/98 (Additional District Judge, 3rd court, Barasat) on 23.12.2003. Against the said judgment and decree of the first appellate court, the appellants/defendants have preferred 2 this appeal before this court. During pendency of the appeal the defendant Sakhir Chand Dhawan died and his legal heirs were duly substituted.
Plaintiffs/respondents' case before the trial court in brief is that : by an indenture of lease dated 24.12.1963 the property in suit was let out to the defendant on the terms mentioned in the deed. By an indenture dated 27.6.1958. Smt. Sindhu Bala Pal one of the lessor creating a trust appointed herself and Uday Ch. Pal as trustees for the properties including the suit property. The said Sindhu Bala Pal along with other trustee by an indenture dated 16.8.1968 appointed Anath Nath Pal as a trustee instead of herself and she retired. Then an indenture was executed on 8.4.1975 and Jayanti Rani Pal appointed a new trustee in place of Uday Ch. Pal. The trust estate along with furniture and all articles vested in Anath Nath Pal and Jayanti Rani Pal as joint trustees. The defendant became a tenant under the trustees. The period of lease was for 21 years ending with 1.12.84. By a notice dated 27.11.84 to the defendant, the trustees requested the defendant for delivery of possession. The defendant received the notice but did not vacate, resulting which ejectment suit had to be filed.
The defendant contested the suit by filing a written statement denying all the material averments made in the plaint. According to him, the plaintiffs have no right, title, interest over the suit property. The alleged lease was executed by Sindhu Bala Pal and Uday Ch. Pal as trustees to the debuttor estate. But the said two lessors are not trustees now and the present plaintiffs have not been legally appointed as trustees. The suit property was leased out for running the rolling mill and allied business. The parties to the 3 lease agreed upon for renewal of lease on a reasonable enhancement of rent after its expiry. The defendant was under impression that the said term was incorporated in the lease deed. But during inspection of the deed lying in case record it came to his notice that the renewal clause was not incorporated. The plaintiff have demanded exorbitant amount of rent and premium illegally as a condition of renewal but the defendant refused. They have filed the suit just to harass the defendant.
There is no dispute that the deed of lease was executed and registered on 24.12.1963 and the same was for a period of 21 years w.e.f. 1st December 1963. It is also undisputed that the monthly rent of Rs. 300/- was settled and the terms and conditions indicated in the original deed of lease were however maintained.
Needless to mention that relationship of lessor and lessee is one of contract and lease has been defined as a partial transfer i.e. a transfer of right of enjoyment for a certain time. It is well settled that a lessee is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law.
In the case at hand, lease was determined by efflux of time under section 111 (a) of the Transfer of Property Act and in such a case notice is unnecessary to maintain an action in ejectment and the lessee is bound to put the lessor in possession of demised premises in view of expiry of lease period. In spite of such legal position the 4 lessor/respondent gave notice of termination dated 27.11.1984 asking the lessee to make over peaceful vacant possession of the premises on and from 2.12.1984 vide Ext. A. The lower court record goes to show that even the lessee gave reply to the said notice through his advocate by letter dated 5th January 1985 vide Ext. 5 praying for renewal of lease instead of taking recourse to costly litigation. At this juncture we must recapitulate that in the written statement also same plea had been taken that defendant/lessee was under the notion that there is renewal clause in the lease deed. Further case was made out that plaintiffs/lessors have no right, title, interest in the leasehold property. But it cannot be disputed that the lessee has no right to challenge the title of the lessor after entering into a contract in writing regarding tenancy. So the lessor is called the landlord and the lessee means 'tenant'. Here, since the lease was for a period of 21 years followed by a lease agreement the tenancy was governed under the Transfer of Property Act.
During hearing of this appeal it was urged by Mr. Samit Talukdar, learned Advocate appearing on behalf of the appellants that as per terms of lease deed the lease expired on 30.11.1984 whereas in the notice the lessee was asked to make over peaceful possession on and from 2.12.1984 and thus according to learned advocate assent of continuing in possession for a day brings the purported lease within the purview of West Bengal Premises Tenancy Act, 1956. Assailing such contention it was rightly submitted by Mr. Sudhish Dasgupta, learned advocate appearing on behalf of the respondent that first of all no rent for the said one day has been accepted by the lessor. On the contrary, admittedly 5 up to October 1984 rent was accepted and the lessee was informed that advance of Rs. 300/- was adjusted towards rent of November 1984. That apart, lessee has also admitted in evidence that he received rent receipt upto November 1984. In evidence also the plaintiff/respondent categorically stated that rent of November 1984 was adjusted towards advance sum of Rs. 300/-. It is true that notice must terminate the tenancy at the end of the year/month of the period of lease and it should expire on the last day of that period. But in this case, I like to reiterate that service of notice was not mandatory and secondly the lessee was not asked to vacate the premises one day prior to expiry of the lease period. Rather by that notice, rightly or wrongly, lessee got opportunity to remain one day more in the demised premises. Intention of the lessor has been very much made clear in the notice of termination. Mere fact of bona fide mistake on the part of the concerned lawyer who gave notice on behalf of the lessor would not leave this court to perceive under any circumstances that lessor gave consent to the lessee to continue in possession of the leasehold property. I must say that no relationship of landlord and tenant was created between the parties to the lease agreement in view of asking the lessee to make over peaceful vacant possession on and from 2.12.1984 just one day after the expiry of lease period. It can be reasonably inferred that the concerned lawyer computed the period wrongly and that is why instead of asking to vacate on 1.12.1984 the lessee was asked to vacate on 2.12.1984.
Next it was contended by Mr. Talukdar that the lease deed was executed on 23.12.1963 when the defendant/appellant was already in possession and rent for the entire month of December 1963 has been accepted which includes the period when there 6 was no lease. Consequently it was his further submission that upon payment and acceptance of rent the plaintiff/respondent accepted the defendant/appellant as a monthly tenant and in absence of any surrender being incorporated in the deed of lease dated 23.12.1963, the monthly tenancy of defendant/appellant continues and cannot be said to be terminated upon execution of the lease deed.
In support of such submission reliance was made on a decision of the Hon'ble Supreme Court reported in AIR 1969 SC 1291 and another decision of the Division Bench of this court reported in AIR 1991 Cal. 88 and also decision of the Division Bench of this court reported in 2000 (1) CHN 365 (Dipak Sen & Anr. Vs. Lakshmi Rani Das).
Assailing upon such contention it was rightly argued by Mr. Dasgupta, learned Advocate appearing on behalf of the respondents that in this Second Appeal the appellants are estopped from taking such plea of continuity of tenancy under the West Bengal Premises Tenancy Act specially when neither in the written statement nor in the evidence there is any whisper to that effect and also after requesting the lessor in reply to the notice of termination so that lease can be renewed in the interest of the employees working in the rolling mill run in the tenanted premises.
It will not be out of place to mention that in the facts and circumstances of the present case the ratios of the above three cases cited on behalf of the appellants have got no application as the facts of the present case are distinguishable. 7
I am not at all unmindful that it was strenuous submission of Mr. Talukdar that a point of law can be argued or taken at any point of time and the identical issue was raised in the case of Dipak Sen & Anr. Vs. Lakshmi Rani Das as to whether the relationship created by such lease is governed by the provision contained in the West Bengal Premised Tenancy Act or Transfer of Property Act and another issue was 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.
My attention was drawn by Mr. Talukdar to this relevant ruling in the case of Dipak Sen wherein the Division Bench of this court were pleased to refer this matter to the Hon'ble Acting Chief Justice for constituting a Larger Bench for the purpose of deciding those two relevant issues. Naturally it was further contended by Mr. Talukdar that the hearing of the appeal should be deferred till the decision of the points of reference made in the case of Dipak Sen.
I am unable to accept such approach of argument advanced on behalf of the appellants because on a fair reading of the ruling in the case of Dipak Sen reported in (2000) 1 CHN 365 (DB) what I find is that there was a lease deed for 20 years commencing from March 1, 1966 expiring on February 28, 1986 but the registered lease deed was executed on March 10, 1966. It was held that in view of section 5 of the Transfer of Property Act as anterior date was given, for all practical purposes the relationship will commence from the date of execution of lease deed and the anterior date 8 can be taken into consideration only for the purpose of calculating the date of lease and therefore, it should be presumed that the lease started from March 10, 1966 and came to an end on February 28, 1986 as provided in the lease deed. It is pertinent to note that since the lease deed given effect from 10th March 1966 expiring on 28th February 1986 was held to be one for less than 20 years (on calculation falls short of 20 years) naturally in view of the proviso to section 3(2) of West Bengal Premises Tenancy Act the tenancy was held to be governed by the West Bengal Premises Tenancy Act. However, I like to reiterate that in spite of such observation the then Hon'ble Division Bench was pleased to refer the matter to the Hon'ble Chief Justice for constituting a Larger Bench.
I am not at all hesitant to say that the question of allowing prayer for deferring the hearing of this appeal till the decision of the points of reference does not arise at all, because in our case at hand, the lease deed was for 21 years. As such, even if the anterior period i.e. from 1.12.1963 to 22.12.1963 is deducted since the lease deed was executed on 23.12.1963, in that event also, the lease in question will not fall short of 20 years under any circumstances. Rather the effective period is much more than 20 years. Therefore, the question of application of the proviso to section 3(2) of West Bengal Premises Tenancy Act does not arise. In other words, the tenancy in question would not be governed by the provision contained in the West Bengal Premises Tenancy Act. That is why I have already observed that the ratio of the aforesaid ruling in Dipak Sen's case is not applicable to the present case. Moreover, it is well-settled that in view of giving effect to from the date earlier to that of execution of the registered lease deed, the entire deed of lease cannot be held to be invalid and the rights and liabilities of the lessor and lessee for 9 the purpose of carrying out the terms and conditions of the lease deed cannot be ignored by either of the parties in any manner.
I have already discussed at the outset that the terms and conditions of the original lease deed were maintained by both the parties to the lease. That is why, the expiry of lease by efflux of time i.e. 21 years as per terms and conditions of the lease deed, instead of being challenged, prayer for renewal of lease was placed by the lessee while he gave reply on 5.1.1985 vide Ext. 5 receiving the notice of termination. Needless to mention that intention of the parties to the lease deed has been made very much clear not only in the instrument in question but also through their conduct. In this context, I feel inclined to hold that the ruling of this court in the case of Mervyn Murray Vs. Adhish Chandra Sinha & Ors. Reported in 2001 (2) CHN 579 which was cited on behalf of the respondent has got relevancy and is applicable because in this cited case also there was a lease for 21 years commencing from 1.2.1958 but the lease deed was executed and registered on 12.7.1958. Same question was raised in view of embargo put under section 5 of the Transfer of Property Act. It is worthwhile to mention that one deed of rectification was subsequently executed and even some portion of the tenanted premises was surrendered and rent was reduced by Rs. 50/- and on behalf of the lessee it was urged that it should be presumed that there has been an implied surrender of the original lease and a new tenancy has been created but such contention was not accepted. It was held in that case that whether there has been an implied surrender of the original lease or not, is a question of conduct of the parties. It was further held that it appears from the deed of rectification that the parties intended that all other terms of the original lease would continue till 10 January 31, 1979 excepting the provision for payment at the reduced rate of rent in view of surrender of a small portion and implied surrender of the original lease cannot be inferred.
Before parting with the judgment I want to make it clear that even if the Division Bench decision in the case of Dipak Sen having not been overruled by the Larger Bench as yet, is taken note of for the purpose of this appeal on the question of implied surrender of tenancy for the period earlier to the date of execution of the lease deed i.e. from 1.12.1963 to 22.12.1963 in that event also intention and conduct of the parties to the lease deed are very much relevant. Even if any tenancy was created before 23.12.1963 in view of embargo under section 5 of the Transfer of Property Act and whether there was any implied surrender of that tenancy or not, the same will not affect the terms and conditions of the lease deed in any manner.
In the light of the discussion made in the foregoing paragraphs I hold with much emphasis that the first appellate court rightly affirmed the decree of eviction passed by the trial court. Accordingly, I record my agreement with the views of both the lower court and the first appellate court. Consequently this appeal fails being devoid of merit and stands dismissed with costs.
(Prabhat Kumar Dey, J.)