Patna High Court
Protap Chandra Singh vs Nibaran Kumar Mitra And Anr. on 21 September, 1973
Equivalent citations: AIR1974PAT135, AIR 1974 PATNA 135
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT
1. This second appeal has come before us on being referred by a learned Single Judge of this Court Defendant No. 2 is the appellant The plaintiff-respondent No. 1 filed a suit for eviction of his tenant who was defendant No. 1 in the action and is respondent No. 2 in the second appeal. Without the consent of the plaintiff, respondent No. 2 had inducted the appellant as a sub-lessee. The appellant pleaded that he was a tenant under the plaintiff. This plea has consistently failed. A decree for eviction was passed by the trial court which was affirmed on appeal by the lower appellate court
2. Learned counsel for the appellant submitted on the basis of a Bench decision of this Court in Suresh Mohan Thakur v. Shamal Mall Bubna, (AIR 1957 Pat 437) that no decree could be passed against the appellant without validly terminating his tenancy, because in tha case aforesaid it was held that even a sub-lessee is a tenant within the meaning of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter called 'the Act'), and, therefore, ha has got his independent title to remain in the premises. We see no substance in this point. In the case of Suresh Mohan Thakur, it was held that on a construction of Section 2 (h) of the Act the expression 'the tenant' includes also a sub-lessee from the tenant, and, as such, a sub-lessee is a tenant within the meaning of Section 2 (h) of the Act He is, therefore, a necessary party to an application for eviction by the landlord under Section 11 (1) (a) of the Act. In the first place, the proposition laid down in that Bench decision that a sub-lessee is a necessary party no longer holds good in view of the Supreme Court decision in Rupchand Gupta v. Raghuvanshi (P.) Ltd. (AIR 1964 SC 1889). Das Gupta, J. at page 1892 has said:
"..... the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessees and does not implead the sub-lessee as a party to the suit, the object of tha landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-
lessee; this may act harshly on the sub-lessee but this is a position well understood by him when he took the sublease. The law allows this and so the omission cannot be said to be an improper act."
3. Secondly, even assuming that he appellant was a necessary or proper party, in the instant case he was impleaded as a party defendant. On the hidings that he had no independent title, his right, title and interest in the premises depended upon the lease which had been granted by respondent No. 1 to respondent No. 2. On the termination of that lease, the sub-lease fell to the ground. In a suit for eviction against a lessee, a decree for eviction could very well be passed against the sub-lessee inducted by the lessee without the consent of the lessor. It must be remembered that a tenancy is created under the Transfer of Property Act only by privity of contract between the lessor and the [essee, and such a lease requires determination by a valid notice under Section 106 of the Transfer of Property Act Even assuming on the basis of the decision in Suresh Mohan Thakur's case that the appellant had become a statutory tenant, it is plain that he had not become a contractual tenant under the plaintiff requiring the determination of the tenancy by service of a valid notice. For passing a decree for eviction against him treating him as a statutory tenant, the requirements under the Act were to be satisfied which have been satisfied in this case. There was no independent right, title and interest on which the appellant could rely to defend the action.
4. For the reasons stated above, this second appeal is held to be without any substance. It is, accordingly, dismissed with costs payable to the plaintiff-respondent.