Calcutta High Court (Appellete Side)
Mrs. Hazra Zaman & Ors vs Md. Quasim & Anr on 6 December, 2021
06.12.2021
SL No.7
Court No.8
(gc)
SAT 345 of 2017
With
CAN 2 of 2018
(Old No: CAN 1136 of 2018)
Mrs. Hazra Zaman & Ors.
Vs.
Md. Quasim & Anr.
(Via Video Conference)
Mrs. Sohini Chakraborty,
Ms. Prajaaini Das,
Sk. Mehbub Hossain,
...for the Appellants.
Re: CAN 2 of 2018
(Old No: CAN 1136 of 2018)
This is an application for restoration and/or recalling
of the order dated 29th January, 2018, by which the
second appeal being SAT 345 of 2017 was dismissed for
default.
Upon perusal of the averments made in the said
application, this court finds that sufficient grounds have
been made justifying the absence of the appellants on the
said date.
The application being CAN 2 of 2018 (Old No: CAN
1136 of 2018), is, thus, allowed and disposed of.
The second appeal being SAT 345 of 2017 is
restored to its original final and number.
Re: SAT 345 of 2017
The second appeal is directed against a decree of
affirmation in a suit for eviction on the ground of
reasonable requirement.
2
Sk. Md. Yasin filed an Ejectment Suit No.186 of 2005
before the learned Judge, 5th Bench, Presidency Small
Causes Court, Calcutta on the ground of default. The
suit was instituted against the predecessor of the present
appellants who were tenants under one Durga Rani Seal,
the owner of the suit premises. By a registered deed of
lease dated 8th October, 1959 executed by said Durga
Rani Seal in favour of Sk. Md. Yasin, the original lessee
was permitted to collect rent. Subsequently, the plaintiff
granted sub-lease in favour of Ashok Dhar, Aritra Dhar
and Shyamal Dhar, who in their turn executed sub-lease
in favour of Michel P.T. Gomes and Roshni Yasmin to
collect rents and arrear rents. However, said Michel P.T.
Gomes and Roshni Yasmin surrendered their sub-lease
on 22nd January, 2003 in favour of Ashok Dhar, Aritra
Dhar and Shyamal Dhar, who also surrendered their
sub-lease through their constituted attorney in favour of
the original plaintiff, namely, Sk. Md. Yasin. The
incidents of lease, sub-leases and subsequent surrender
thereof were duly communicated to the defendants
through notice of attorney. On 15th October, 2009, the
original owner, Durga Rani Seal, transferred her right,
title and interest in the suit property in favour of the
present plaintiffs/decree-holders by way of a registered
deed of conveyance dated 15th October, 2009 after the
lease of the original plaintiff, Sk. Md. Yasin, was
surrendered in her favour.
3
By reason of such subsequent transfer, the present
plaintiffs/decree-holders substituted themselves in the
pending proceeding for eviction and amended plaint. In
the amended plaint in addition to the earlier grounds for
default, the ground for reasonable requirement was
included. The said suit was contested and after
contested herein the suit was decreed in favour of the
plaintiffs on the ground of reasonable requirement. The
present appellants preferred an appeal before the
Appellate Court challenging the said decree. In the said
proceeding, the appellants filed an application under
Order XLI Rule 27 of the Code of Civil Procedure in order
to bring on record a subsequent document to show that
Durga Rani Seal registered a lease deed in favour of the
original plaintiff, Sk. Md. Yasin, which include the flat of
the present appellants.
It was argued before us that while considering the
appeal on merits, the Appellate Court did not consider
the application under Order XLI Rule 27 of the Code of
Civil Procedure. The consideration of the said
application is not reflected in the impugned judgment. It
is submitted that if the said property sold by Durga Rani
Seal in favour of Sk. Md. Yasin subsequent to the deed of
conveyance dated 15th October, 2009, which, inter alia,
include the property of the present appellants, the
learned Appellate Court ought to have decided the said
application on merits as the issue of ownership of the
property is in dispute and the original plaintiff did not file
4
the suit for eviction on the ground of reasonable
requirement. The suit was decreed only on the purported
plea raised by Sk. Md. Shamim that he requires the suit
property for reasonable requirement. It is thereby
contended that the requirement of the respondent No.2
was never issued in view of the original plaintiff and
having regard to the fact that the subsequent document
would show that the suit property was sold in favour of
the Sk. Md. Yasin, the ground for reasonable
requirement on the basis of which the decree was passed
by the learned Trial Court could not be sustained.
The said argument although seems to be attractive
but is not sustainable in law. It is correct that we do not
find any reflection of the application claimed to have
been filed by the present appellants under Order XLI
Rule 27 of the Code of Civil Procedure, however, it is
clear from the orders of both the Courts that the
respondent No.2 was able to establish his reasonable
requirement. The original plaint was amended. On the
basis of the amended plaint, issues were framed and
both oral and documentary evidence were led by the
parties. The title to the property cannot be disputed by
the present appellants. It is immaterial whether the
property was sold in favour of Sk. Md. Yasin subsequent
to the deed of conveyance dated 15th October, 2009. In
fact, there could not have been any sale by Durga Rani
Seal after 15th October, 2009 since he has relinquished
her right, title and interest in the property in question in
favour of the present respondents/decree-holders. It is
elementary that once a party divested all of his rights in
respect of the property, there cannot be any further
transfer of the property which is a non-est, vis-à-vis, the
original owner which in the instant case is Durga Rani
Seal. The right, title and interest of the decree-holders
are well-established by reason of the deed of conveyance
dated 15th October, 2009. The appellants never raised
any objection with regard to the ownership of the
property by the present respondents and they were fully
aware that the property was purchased by the present
respondents. A tenant is estopped from challenging the
ownership of the landlord. The Appellate Court has
proceeded on the aforesaid basis and has affirmed the
order of the Trial Court. There is no substantial question
of law involved in this matter for which appeal needs to
be admitted.
In view thereof, the second appeal being SAT 345 of
2017 stands dismissed.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this order, if
applied for, be given to the parties on usual undertaking.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
