Calcutta High Court
Sukumar Saha vs Shyamal Kumar Saha And Ors. on 27 July, 2005
Equivalent citations: 2006(1)CHN12
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of the defendant No. 1 in a suit for eviction and is directed against the judgment and decree dated 30th September, 1993, passed by the learned Judge, 9th Bench, City Civil Court at Calcutta in Title Suit No. 2136 of 1982 thereby passing a decree for recovery of possession and mesne profit at the rate of Re.1 per day in favour of the plaintiff till the recovery of possession.
2. The respondent No. 1 filed the aforesaid suit being Title Suit No. 2138 of 1982 in the City Civil Court at Calcutta thereby praying for recovery of possession of the suit property from the appellant herein and the case made out by the respondent No. 1 may be epitomised thus:
(a) The suit property being premises No. 3/1/1C, Nanda Ram Sen Street belonged to the defendant Nos. 2 and 3 and one Aloke Ranjan Saha and in the year 1943, they let out the entire ground floor consisting of two rooms, kitchen, bathroom and privy with a porch and courtyard to one Anil Kumar Saha at a rental of Rs. 28/- per month and such amount was subsequently increased to Rs. 35/- per month according to Bengali Calendar.
(b) In or about 1945, the said Anil Kumar Saha, left the said premises after subletting the entire ground floor to the plaintiffs father namely, Shyamupada Saha, since deceased, at the same rate of rent, who used to pay the rent payable by the said Anil Kumar Saha, on his behalf, to the landlords.
(c) In or about 1947, the said Anil Kumar Saha took back one room and a kitchen and the said Shyamapada Saha continued to occupy one room in the ground floor as a sub-tenant under the said Anil Kumar Saha, paying one-half of the monthly rent, i.e. Rs. 17 and 8 annas to the said Anil Kumar Saha. Subsequently, in the year 1952, the said Anil Kumar Saha sublet the said one room and kitchen which he had kept in his possession to one Ranjit Kumar Saha and the rent was being paid in equal shares by the said Ranjit Kumar Saha and Shyama Pada Saha to the landlords in the name of Anil Kumar Saha.
(d) In or about 1967-68 the said Ranjit Kumar Saha left the said premises after putting the defendant No. 1 in possession of one room and kitchen in the ground floor of the said premises without knowledge and consent of either the said Anil Kumar Saha or the landlords. The said Shyamapada Saha, who had no legal title, raised no objection to the said transfer of possession and the arrangement for payment of rent continued as before and accordingly, the defendant No. 1 and Shyamapada Saha used to pay rent in equal share on behalf of the Anil Kumar Saha.
(e) The said one room and kitchen occupied by defendant No. 1 is the subject-matter of the suit property.
(f) The said Shyamapada Saha, the father of the plaintiff died in the month of July, 1972 and since then, the plaintiff, his mother and brothers continued in possession of one room in the ground floor of the said premises as sub-tenants under the said Anil Kumar Saha and continued to contribute one-half of the rent as was being done by Late Shyamapada Saha. Though the defendant No. 1 remained in possession of one room and kitchen in the ground floor, he was never recognised as a sub-tenant by the said Anil Kumar Saha, who remained the recorded tenant under the landlords.
(g) At the request of Anil Kumar Saha, who surrendered his tenancy in favour of the landlords, the said landlords including defendant Nos. 2 and 3 accepted the plaintiff as a monthly tenant in respect of the entire ground floor of the said premises No. 3/1/1C, Nanda Ram Sen Street, with effect from 16th December, 1980 at a rental of Rs. 40/- per month, according to the Bengali Calendar month.
(h) In or about August, 1981 there was a partition among the owners of the said premises and since then, the defendant Nos. 2 and 3 became the owners of the said premises and plaintiff has been paying rent to them.
(i) After the plaintiff became a tenant in respect of the ground floor of the premises, the defendant No. 1 has not made any contribution of rent and the plaintiff has not asked for any such contribution.
(j) The defendant No. 1 has all along been in occupation of the rooms without any legal right, merely as a trespasser and has not vacated the same in spite of repeated demands from the plaintiff. Hence the suit.
3. The aforesaid suit is contested by the defendant No. 1 by filing written statement thereby denying all the material allegations made in the plaint and his defence may be summed up thus:
(i) The suit is not maintainable and is bad for non-joinder and mis-joinder of parties, more particularly for the absence of Anil Kumar Saha who is a necessary party to the suit.
(ii) The plaintiff has no locus standi to file the present suit as he has no right, title and interest over the suit premises, the portion in occupation of the defendant No. 1 and as such, is not authorised to file the suit against him.
(iii) The other factual allegations contained in the body of the plaint were also denied and the defence of the defendant No. 1 was that he is neither a tenant nor a licensee under plaintiff and nor was he ever inducted by plaintiff and so, there is no relationship between the plaintiff and the defendant No. 1 and as such, the plaintiff has no right to evict the defendant No. 1. The defendant has full and absolute right to occupy the said premises until and unless anything is done or any action is taken either by Anil Kumar Saha, the lawful tenant or by the landlords.
4. At the time of hearing of the suit, four persons gave evidence in support of the plaint case while three deposed in support of the defendant No. 1.
5. As indicated earlier, by the judgment and decree impugned herein, the learned Trial Judge has decreed the suit in favour of the plaintiff.
6. Being dissatisfied, the defendant No. 1 has come up with the present appeal.
7. Mr. Bhattacharya, the learned advocate appearing on behalf of the defendant No. 1/appellant before entering into the question of title of the respective parties tins taken a pure question of law in support of this appeal.
8. According to Mr. Bhattacharya, even if all the averments made in the plaint are taken to be true, the plaintiff is not entitled to maintain the present suit for eviction against defendant No. 1. Mr. Bhattacharya contends that according to the plaint case, Anil Kumar Saha was the original tenant in respect of entire ground floor and he sublet a print of the property in favour of the father of the plaintiff and the other part of the ground floor was in occupation of the present defendant No. 1. According to the plaintiff, Mr. Bhattacharya continues, Anil Kumar Saha surrendered his tenancy in respect of the entire ground floor in favour of landlords in 1980 and the landlords in their turn accepted the plaintiff as tenant in respect of the entire ground floor. By pointing out the aforesaid fact, Mr. Bhattacharya contends that if the aforesaid allegations are taken to be true there cannot be any lawful tenancy in respect of the portion occupied by defendant No. 1 in favour of the plaintiff as the landlords did not get back possession in respect of the portion occupied by defendant No. 1 after the alleged surrender by Anil Kumar Saha.
9. Mr. Bhattacharya, therefore, contends that the landlords created tenancy in favour of the plaintiff only in respect of the portion earlier occupied by him and so far the portion occupied by defendant No. 1 is concerned, no tenancy could be lawfully created in favour of plaintiff. Mr. Bhattacharya submits that a tenant can file a suit for eviction in his own capacity as tenant provided he is dispossessed from any party of his tenancy by the trespassers after his induction as tenant. But in a case where tenant was never put in to khas possession by the landlord, he cannot be said to be a tenant in respect of that portion and as such, he cannot have any right to pray for eviction of a person in occupation of the other portion. Mr. Bhattacharya contends that it is only the landlords of the premises who can file the suit for eviction of the appellant.
10. The aforesaid contentions of Mr. Bhattacharya are seriously disputed by Mr. Banerjee, the learned senior advocate appearing on behalf of the respondent No. 1. According to Mr. Banerjee, the owners of the premises can create a tenancy of a part thereof without giving actual possession in favour of such tenant. Mr. Banerjee contends that even if a tenant does not get khas possession over a portion of the property over which tenancy has been created, he can recover such possession by filing a suit for eviction of the person in occupation of that part of the property. According to Mr. Banerjee, the undisputed owners of the property having created a tenancy in respect of the entire ground floor including the portion wrongly occupied by the defendant No. 1, the plaintiff on the basis of such right can file a suit for eviction of defendant No. 1. In support of such contentions Mr. Banerjee made reference to the following decisions:
1. H.V. Rajan v. C.N. Gopal and Ors., reported in AIR 1961 Mys 29,
2. Shanku Krishnan v. Hari Probhu Govinda Prabhu and Ors., reported in AIR 1952 TC 333,
3. Kali Prosad v. Jagadish Pada, reported in AIR 1953 Cal 149.
11. Therefore, a preliminary question that arises for consideration in this appeal is whether the plaintiff on the basis of his alleged tenancy by defendant Nos. 2 and 3 can file a suit for eviction of the defendant No. 1.
12. After hearing the learned Counsel for the parties and after going through the provisions contained in the Transfer of Property Act as well as the Specific Relief Act, we are of the view that a lawful tenancy can be created in favour of a person by a lessor only if the lessor is capable of giving khas possession of the tenanted portion in favour of the lessee. If a particular property is in occupation of a trespasser, without evicting such trespasser the lessor cannot create a lease over the portion so occupied. Lease is a doctrine of separation of title and possession. A lessor before grant of a lease enjoys the title over the property as well as the right to immediate possession thereof. The moment such a lessor creates a lease, the title remains with him but the right to enjoy the property is transferred to the lessee and he is not entitled to enjoy possession thereof by himself so long the lease continues. Therefore, no tenancy can be lawfully created by a lessor unless he is in a position to deliver actual physical possession of the property in favour of the tenant. In this case, according to the plaint, Anil Kumar Saha was the tenant but he was not in possession of the property having already sublet a portion of the property to the plaintiff and the other portion was in occupation of defendant No. 1. Therefore, the moment Anil Kumar Saha surrendered his tenancy, the landlord could not create a fresh tenancy in favour of plaintiff in respect of the portion occupied by defendant No. 1, so long the actual possession is not taken from the defendant No. 1.
13. Such being the position, no lawful tenancy was created in favour of the plaintiff in respect of the property occupied by defendant No. 1. Once it is held that by virtue; of tenancy granted by defendant Nos. 2 and 3, plaintiff became tenant only in respect of the property which was in his actual possession, by dint of such right, he cannot file: a suit for eviction of a trespasser for recovery of the property over which his tenancy does not extend. Over the suit property in occupation of defendant No. 1, the plaintiff has no better title than that of defendant No. 1. It is the person vested with the title to the property who can definitely file a suit for eviction of defendant No. 1 if he can establish that the defendant No. 1 had no lawful right to remain in the property.
14. Position, however, would have been different if the defendant Nos. 2 and 3 had either sold away or gifted or exchanged the property or even mortgaged the suit property in favour of the plaintiff. In such a case, the plaintiff would have been empowered with the title to the property and on the strength of his own title could evict the defendant No. 1 notwithstanding the fact that he had no possession over the suit property, provided of course, such title is not extinguished by operation of law and at the same time, the defendant No. 1 is found to have no lawful right to remain in the property.
15. We, thus, find substance; in the contentions of Mr. Bhattacharya that having acquired no title to the property occupied by defendant No. 1 the plaintiff was not entitled to maintain a suit for eviction by describing the defendant No. 1 as a trespasser.
16. We now propose to deal with the decisions cited by Mr. Banerjee.
17. In the case of H.V. Rajan (supra), the Division Bench of the Mysore High Court was faced with a question whether a suit for specific performance of contract was maintainable at the instance of a lessee who was not given possession of the entire leasehold property by the lessor even after execution of the lease deed. According to the Division Bench, the lessee on the basis of his right created by the lease-deed was entitled to file a simple suit for recovery of possession from the landlord and there was no necessity of tiling a suit for specific performance of contract as the deed in question was not an "agreement to lease" but was in effect a lease-deed. We fail to understand how that decision can be of any help to resolve; a question whether a lease can be effected if the disputed property in possession of a third party and whether the said trespasser can be evicted at the instance of a person other than the lessor.
18. In the case of Shanku Krishnan (supra), the Full Bench of the Travancore-Cochin High Court was considering the difference between a "Kanom" and a "usufructuary mortgage". According to the said decision, the main feature which distinguishes a kanom from a usufructuary mortgage is that the kanom is primarily a demise of land for enjoyment although it is coupled with an advance of money by the person who takes the demise. But the income from the property will generally have no proportion to the; interest the kanom tenant has to realise for the amount advanced by him. Usually a low pattom will be fixed as payable to jenmi. The relationship between the jenmi and the kanomdar is more of the nature of landlord and tenant than that of debtor and creditor. In our view, the said decision is also of no avail to decide the question involved herein.
19. In the case of Kali Prosad (supra), A, who had been carrying on business in cinema show entered into agreement with B in respect of certain premises for carrying on cinema business. The agreement entitled B to the use of the premises. It also authorised B to the use of the furniture, the machines and other fittings on the premises. The agreement did not provide that B must carry on the business. The agreement required B to pay a lump payment per month and all taxes and rates. It allowed B to spend money for the improvement of the premises, the sum to be advanced being treated as loan to be set off against the premium on certain conditions. The Division Bench construed the agreement to be one creating interest in the premises on payment of rent and accordingly, the relationship was held to be that of landlord and tenant. The aforesaid decision, in our opinion, does not help the respondent in any way and is totally irrelevant for our purpose.
20. Thus, the decisions, cited by Mr. Banerjee, are not helpful to his client.
21. We, thus, find that the plaintiff had no locus standi to file a suit for eviction against the defendant No. 1 and on that ground alone the suit is liable to be dismissed. We make it clear that we have not gone into the respective contentions of parties as regards alleged tenancy of defendant No. 1 or of Anil Kumar Sana, which is beyond the scope of this suit. In the facts and circumstances, there will be, however, no order as to costs.
Rajendra Nath Sinha, J.
22. I agree.