Calcutta High Court (Appellete Side)
Sri Mahabir Prasad Sharma vs Sri Nitesh Kanoria on 10 September, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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10.9.2013 C.O. No. 1822 of 2013
Sri Mahabir Prasad Sharma
Vs
Sri Nitesh Kanoria
Mr. Vinay Kumar Purohit
... For the Petitioner
Mr. Asish Ch. Bagchi
Mr. Prabir Kr. Mishra
Mr. Siben Chatterjee
... For the Opposite Party
This revision arose out of order No. 4 dated
24.4.2013 passed by the learned Chief Judge, Small
Causes Court, Calcutta in Ejectment suit No. 32/2013.
In the background of this proceeding the fact in a
nutshell is that in January, 2013, the plaintiffs/Opposite
Party filed a suit for eviction and recovery of khas
possession against the petitioner before the learned Chief
Judge, Small Causes Court, Calcutta being Ejectment suit
No. 32/13 and prayed for decree of recovery of khas
possession and others. It has been alleged by the
Opposite Party that the Opposite Parties are joint lessees
in respect of the entire building and premises No. 22,
Maharshi Debendra Road, P.S. Posta, Kolkata-7 by a
registered lease deed dated 19.4.12 under the lessor. The
trust Estate of Sri Sri Ishwar Lakshmi Narayan Jew of 3,
Lansdown Terrace, P.S. Tollygunge, Kolkata-26 is
represented by its trustees Smt. Mala Ghosh and others.
By the aforesaid lease deed the Opposite Parties have
been empowered to induct and remove the tenants in the
aforesaid property and to realize rent from tenants
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including realization of arrear rent and to obtain
surrender of tenancy from existing tenants. The Opposite
Parties had also been empowered to file and defend suits
for protection of the leased property. Premises No. 22,
Maharshi Debendra Road, Kolkata-7 is fully tenanted.
The petitioner was a tenant under the trustee Estate of Sri
Sri Ishwar Lakshmi Narayan Jew. The tenancy of the
petitioner was attorned in favour of the Opposite Parties
by the aforesaid trustees by a letter of attornment dated
28.4.12 addressed to the petitioner with a copy to the
Opposite Party. The Opposite Parties also caused service
of letter of attornment dated 29.4.12 upon the petitioner
which was duly received by them. The petitioner is a
tenant under the Opposite Party in respect of one
residential room No. 4 at 6th floor of Premises No. 22,
Maharshi Debendra Road, Kolkata-7 at a monthly rental
of Rs. 200/- payable according to English calendar
month. The rent was paid till March, 2010. Thereafter,
the petitioner became defaulter. Notice was issued and
served to the petitioner by the Opposite Parties to vacate
the premises but in vain.
The petitioner entered appearance therein on March
4, 2013 and filed an application under Order VII Rule 11
read with Section 151 of the Code of Civil Procedure, 1908
praying for rejection of the plaint on the ground that the
Opposite Parties instituted the instant suit in the capacity
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of lessee. They became lessees by virtue of lease deed
dated 19.4.12.
The petitioner submits that the third party can get a
right to realize rent from the tenants or to suit him for
eviction only in accordance with Section 54 of the T.P.
Act. If the effect of concurrent lease is to authorize a
second lease to realize rent and permit him to suit for
eviction, such right can be done under Section 54 of the
T. P. Act. During the continuance of such tenancy, the
landlord cannot create another tenancy over the self-same
property taking advantage on the doctrine of concurrent
lease. Since no right has been accrued in favour of the
Opposite Parties by the deed of lease, they have no right
to file the suit.
The Opposite Party a filed written objection against
the application under Order VII Rule 11 of the Code of
Civil Procedure and submitted that Section 54 of the T. P.
Act is not applicable in the instant case and the Act deals
with transfer of ownership in respect of immovable
property by way of absolute sale. It is further alleged
that the provisions as laid down under Section
105/108/109 of the T. P. Act of 1882 deals with right,
title and interest of a lessee over the property in question
which has been transferred by way of lease executed in
favour of Opposite Party by original owner on 19.4.12.
Both the lessor and lessee issued letters of attornment to
the petitioner. As such as per provision of Section 109 of
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the T. P. Act, the petitioner has no right to make any
comment regarding the title of the Opposite Parties as
lessee. It is further alleged that the instant suit has been
filed by the Opposite Parties under the provision of WBPT
Act, 1997 and under no stretch of imagination it can be
said that the instant suit is barred by law.
I have heard the learned Counsel for both the
parties.
In support of their cases, the learned Counsel for
the Petitioner submitted a decision in the case of
Sukumar Saha vs. Shyamal Kumar Saha (2006) 1 CHN 12
wherein it was propounded that "lease is a doctrine of
separation of title and possession title remains with the
lessor but the right to enjoy the property is transferred to
the lessee. No tenancy can be created unless the lessor is
in a position to deliver actual physical possession of the
property in favour of the tenant".
In another decision in the case of Sambhunath
Mitra & Ors. vs. Khaitan Consultant Ltd. & Ors. AIR 2005
Cal 281 it was held "in connection with Transfer of
Property Act (4 of 1882) Sections 107, 109, 54, 6(e), 116
that Doctrine of concurrent lease-property already subject
matter of tenancy-landlord cannot create another monthly
tenancy over the said property by taking advantage of
doctrine of concurrent lease in violation of Section 54-
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lessee under such subsequent lease cannot sue tenant for
eviction".
In another decision in the case of Swapan Kr. Dutta
vs. Dharam Chand Jaiswal & Anr. (2002) 2 CHN 627 it
was observed that authorizing a second lessee to realize
rent from the first lessee without concurrence of the lessor
and authorizing him to sue, such right can be transferred
only in accordance with Section 54.
On the other hand, the learned Counsel for the
Opposite Party argued mainly on the point that the
argument raised by the petitioner falls flat on the ground
inasmuch as the suit was filed under the provisions of the
West Bengal Premises Tenancy Act and there is no
applicability of Section 4 of the T.P. Act.
A decision in the case of Achal Misra vs. Rama
Shanker Singh & Ors. (2005) 5 SCC 531 wherein it was
propounded that in view of Section 109 of the T. P. Act,
there cannot be any doubt that the appellant being an
assignee of the former landlord, was entitled to enforce his
rights in respect of the property even if it were to be taken
that respondents 1 and 2 were to be treated as tenants of
the building under him.
I have duly considered the submissions made by the learned Counsel for both the parties as well as the decisions cited by them in respect of their contentions. I have also perused the impugned order passed by the learned Court below. First of all, I would like to mention 6 that this revision is not dependent only on the question of law. The lease deed has not been filed and that is related to some mixed question of fact and law which requires to be gone into evidence.
In my opinion, the learned Court below rightly rejected the petition under Order VII Rule 11 of the Code of Civil Procedure.
Hence, I find no merit in this revision. Accordingly, this revision stands dismissed. I find no order as costs.
Urgent Photostat certified copy of this order, if applied, for, be given to the parties on priority basis.
(Toufique Uddin, J.)