Calcutta High Court
Peace Heaven vs Must. Mozzammel Khatoon & Ors. on 3 March, 1999
Equivalent citations: (1999)1CALLT523(HC)
JUDGMENT V.K. Gupta, J.
1. At the outset, learned Advocate for the respondents has raised a preliminary point regarding the maintainability of this appeal on the ground that since the lessees had not filed any appeal against the decree impugned, the appeal filed by the present appellant who was a sub-tenant, is not maintainable, decree having become final in the aforesaid situation.
2. Since we propose to dismiss the appeal on merits, we do not consider it worthwhile to go into the aforesaid preliminary point
3. The point for consideration in this appeal is indeed very short. It is about the interpretation to be put upon the proviso to sub-section (2) of section 3 of the West Bengal Premises Tenancy Act 1956 with regard to the scope of the applicability of this proviso to leases for period exceeding 20 years and whether the protection of the Act is available to tenants in occupation of the premises under a lease for more than 20 years, in the light of the language employed in the proviso.
4. Respondents 1 and 2 in this appeal had filed a suit for eviction and for recovery of vacant possession against 9 defendants. Whereas defendants 1 to 8 were the lessees/tenants of the suit premises, defendant No. 9 in the suit was fmpleaded in his capacity as an un-authorised sub-tenant of the property. The suit was decreed by the court below. As noticed earlier, the lessees, being defendants 1 to 8 in the suit did not chose to file any appeal against the Judgment and decree but defendant No. 9, the sub-tenant in occupation preferred the present appeal before us. The suit was filed by the respondents No. 1 & 2 on the ground inter alia that the period of lease being 21 years, the same having expired and the protection of the Act not being available, the plaintiffs were entitled to recover the vacant posession of the premises. The other ground was with regard to the sub-letting of the property by the original lessess to the appellant before us.
5. On the pleadings of the parties, the following Issues were framed by the trial court:
1. Have the plffs. any cause of action for this suit?
2. Is the suit maintainable in its present form?
3. Is the suit barred by limitation?
4. Is the suit bad for defects of parties?
5. Has the alleged lease expired on the expiry of 29.2.88 as contended by plffs.?
6. Has the lease setup a sub-tenant without the consent of the lessors before the expiry of the alleged lease in violation of the terms of the relevant lease deed?
7. Are the plffs. entittled to obtain a decree for recovery of khas possession of the suit premises after evicting the defdt. therefrom?
8. Are the plffs. entitled to obtain a decree for permanent Injunction as prayed for?
9. Are the plffs. entitled to obtain a decree for mesne profits as prayed for?
10. What relief, if any, are the plffs. entitled to?
6. Learned trial court, while decreeing the suit, held that the defendant No. 9, the appellant before us, was Indeed a sub-tenant, the property having been sub-let to it illegally and unauthorlsedly and that in any event the period of lease of 21 years having expired, the defendant were liable to be ejected from the suit premises.
7. Sections, sub-section(2) of the West Bengal Premises Tenancy Act, 1956 (Act, for short) creates an exception to the applicability of the provision of the Act to certain premises which are held under a lease for a period exceeding 20 years. For reference, we reproduce section 3 of the Act which reads thus:
"3. 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 Registration 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 same as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 16 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."
8. A bare reading of this provision clearly suggests that any lease which is for a period of more than 20 years is not subject to the applicability of the Act and that any plaintiff seeking recovery of posses ion from a defendant in respect of said premises is not required to prove any of the grounds as mentioned in section 13 of the Act since the defendant does not enjoy the protection of the Act That is undisputed. The appellant, however, has submitted that the expression "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" occurring in the proviso to subisectlon (2) of section 3 of the Act clearly suggests that even in respect of a lease of more than 20 years, if the lease document contains a clause that the period of lease was terminable earlier than 20 years at the option of the landlord or the tenant, the protection of the Act would become available in so far as the tenant is concerned and that the tenant cannot be evicted from the premises in question except in accordance with the provisions of the Act. In support of this contention, he has relied upon the following clause appearing in the lease deed we quote:
"That the lessee will keep with the lessor a sum of Rs.500/- as security deposit which will be adjusted against rent on the expiration of the lease or Sooner Determination Thereof .
9. It is the contention of the learned Advocate for the appellant that the aforesaid expression, namely "sooner determination thereof", contains an Intention of the parties that this lease which was originally for a period of 21 years was terminable earlier than 21 years at the option of the landlord or the tenant and therefore, in view of the expression used in the proviso to sub-section (2) of section 3 of the Act, the exception from the applicability of the Act was not available to the landlord-plaintiff and on that ground, the suit ought to have been dismissed.
10. After a very detailed consideration of the arguments putforth in support of this plea and on careful examination of the lease deed and after our careful perusal of the relevant statutory provision, we find ourselves unable to agree to this submission of the appellant. The lease deed was executed on 27th February, 1967. The document in its very recital part fixed the period of lease as 21 years. The extract of recital part relating to the fixation of the lease period to 21 years reads thus:
"To hold the same to the lessees for the period of 21 years beginning from March, 1967 and expiring on the last date of February, 1988 and paying the lessors the monthly rental of Rs.500/- (Rupees five hundred) only payable to the lessors shares of Corporation Taxes at the place of their residence against the customary receipt of the lessors and subject to the conditions and convenants hereinafter contained."
It is after this recital that the above referred clause 2 in the lease deed contained a stipulation about the keeping of Rs.500/- as security deposit which is adjusted against rent on the expiration of the lease period, or, as the expression goes, sooner determination thereof. Clause 5 of the document also being relevant for our purpose reads thus :
"That in the event of failure to pay the monthly rent for two months consecutively or to observe the convenants hereinbefore mentioned the lessees will incur forfeiture and the lessors will be at liberty to re-enter on the demised premises and/or recover possession of the demised premises by ejecting the lessees from same."
The combined reading of Clause 5 and Clause 2, along with above quoted extract of the recital clearly suggests that the lease indeed was for a fixed period of 21 years, that the parties did not Intend either expressly or by Implication its earlier termination or determination and that there is no covenant or term in the lease deed which said that this lease could be determined either by the landlord or tenant before the expiry of 21 years period. The two stipulations contained in Clause 2 and Clause 5 (supra) only related to the general conduct of the parties about the observance of the terms and conditions of the agreement and the applicability of law on the subject. Including the provisions of the Transfer of Property Act. Undoubtedly, the expression "Sooner Determination Thereof" does not reflect any intention of parties that the parties wanted the lease to be terminated at the option of either of them before the expiry of 21 years. It was an expression quite general in nature only indicating that if at all the lease is determined; before the period fixed, the amount-of Rs.500/- would be adjusted. Determination or termination of a lease before the period fixed in the lease deed is always permissible and possible. That however can be done only by taking recourse to legal provisions in one or the other of some contingencies.
11. Section 111 of the Transfer of Property Act provides for determination of a lease. It reads as under:
"111. Determination of lease.-- A lease of immovable property determines -
(a) by eflux of the time limited thereby:
(b) where such time is limited conditionally on the happening of some event--by the happening of such event:
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;
(d) in case the Interests of the lessee and the lessor in the whole of the property become vested at the same time is in one person in the same right;
(e) by express surrender; that is to say. In case the lessee yields up his Interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture: that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferree gives notice in writing to the lessee of his Intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of Intention to quit, the properly leased, duly given by one party to the other."
12. A look at section 111 of the Transfer of Properly Act thus suggest that apart from other conditions mentioned in Clauses (a) to (f), a lease of immovable property can be determined by forfeiture, if the lessee breaks any express condition or the lessee renounces his character and so on and so forth. If the rights and obligations of the parties qua each other are violated or if the terms and conditions of the lease are violated by any of the parties, the provision of section 111 of the Transfer of Property Act clearly may come into play for enabling a party to terminate or determine the lease earlier than the period fixed thereof. It is in the same spirit that Clause 5 also uses the expression about the Incurring of the forfeiture and the right of the lessor to re-enter on the demised premises and to recover possession of the demised premises by ejecting lessee from the same. This of course is subject to the express condition of lessee falling to pay the monthly rent for 2 months consecutively, or failing to serve the convenants mentioned in the lease deed. These two contingencies coupled with many other conceivable contingencies, even though not mentioned tn the Lease Deed may result in the lease being terminated before the expiration of 21 years. These, however would not reflect the intention of the parties per se that the lease is for a period of less than 21 years or that the parties intend per se that it could be terminated at their option before the expiry of 21 years. The proviso to sub-section (2) of section 3 of the Act is of general application. It applies to all such demised premises, lease whereof is for a perioid of more than 20 years. In its application to said premises, it clearly says that the provisions of the Act will have no application. To this general principle of the provisions of the Act not being applicable to such premises, the exception is that the lease should be terminable or determinable before the expiry of the period of 20 years at the option of either of parties. Such determination of the lease prior to 20 years has to be clearly spelt out and specifically reflected in the document itself. It must clearly reflect the Intention of the parties. It cannot be presumed by any inference or by any such factor or circumstance which is not spelt out in express terms in the document itself.
13. We are therefore convinced that by properly applying the proviso to sub-section (2) of section 3 of the Act, this is a case where the lease was for a period of 21 years and that it did not contain any stipulation that it could be terminated prior to that period at the option of the parties. That being the case, and admittedly the period having expired, the appellant was under an obligation to vacate the premises. Once we take this view, we are not concerned with any other question involved in the suit viz. whether the original lessees had sublet the premises to the appellant or that the appellant had, by becoming a partner of the original lessees, entered into the possession of the premises. We are saying so because the only question which has come for our consideration in this appeal is whether the lease was for 21 years and, if on the expiry of that period, the possession was delivered to the landlord or not All other facts are outside the purview of this question.
14. Learned court below has held against the appellant. It has found that the lease was for a period of 21 years. It has also found that this period had expired before filing the suit. In the written statement filed by the appellant in the court below, the appellant did not also challenge either the execution of the lease deed, its existence, or even its validity. It only pleaded that it was not a sub-tenant and that it came into possession of the property by virtue of being a partner of the original lessees i.e. other defendants in the suit had not filed any written statement in the trial court.
13. On an over-all consideration thereof, we find that the learned court below, on proper appreciation of evidence, both documentary as well as oral, came to the correct finding about the period fixed in the lease deed and with regard to other Issues. We agree with the findings of the court below. We see no merit in the appeal. We dismiss the appeal with costs throughout.
16. All Interim directions shall stand vacated Immediately and forthwith. If any amount has been deposited by the appellant in this court or in the court below, the same shall be made over to the respondents on an application flled for this purpose.
P.K. Sen, J.
17. I agree.
18. Appeal dismissed