Calcutta High Court
Jyoti Biswas & Ors vs Raj Kumar Ghosh & Ors on 26 April, 2022
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present:- Hon'ble Mr. Justice I. P. Mukerji
And
Hon'ble Mr. Justice Aniruddha Roy
APD No.269 of 2018
WITH
CS No.524 of 1984
EC No.146 of 2017
IA No. GA No.2 of 2020
JYOTI BISWAS & ORS.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.270 of 2018
WITH
EC/146/2017
CS/524/1984
CINE CLUB OF CALCUTTA & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.271 of 2018
WITH
EC/146/2017
CS/524/1984
AMBAR ROY
Versus
RAJ KUMAR GHOSH & ORS.
APD No.272 of 2018
WITH
EC/146/2017
CS/524/1984
RANJIT KARUNAKAR
Versus
RAJ KUMAR GHOSH & ORS.
APD No.288 of 2018
WITH
EC/146/2017
CS/524/1984
BINA KOLEY
Versus
RAJ KUMAR GHOSH & ORS.
APD No.289 of 2018
WITH
EC/146/2017
CS/524/1984
RADIANT PHOTO SERVICE
Versus
RAJ KUMAR GHOSH & ORS.
APD No.290 of 2018
WITH
EC/146/2017
CS/524/1984
UMA ARORA & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.291 of 2018
WITH
2 EC/146/2017
CS/524/1984
NIRMAL KUMAR JAIN
Versus
RAJ KUMAR GHOSH & ORS.
APD No.292 of 2018
WITH
EC/146/2017
CS/524/1984
PARSHU RAM CHOUDHURY
Versus
RAJ KUMAR GHOSH & ORS.
APD No.293 of 2018
WITH
EC/146/2017
CS/524/1984
SUSOVAN GHOSH
Versus
RAJ KUMAR GHOSH & ORS.
APD No.294 of 2018
WITH
EC/146/2017
CS/524/1984
KAMLA SIKCHI & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.295 of 2018
WITH
EC/146/2017
CS/524/1984
NAUSHAD AKHTAR & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.296 of 2018
WITH
EC/146/2017
CS/524/1984
KRISHNA PAUL & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.297 of 2018
WITH
EC/146/2017
CS/524/1984
DEV KISHAN TAPADIA
Versus
RAJ KUMAR GHOSH & ORS.
APD No.298 of 2018
WITH
EC/146/2017
CS/524/1984
2
SNEHASIS COHWDHURY
Versus
RAJ KUMAR GHOSH & ORS.
APD No.310 of 2018
WITH
EC/146/2017
CS/524/1984
HARLALKA BROTHERS
Versus
RAJ KUMAR GHOSH & ORS.
APD No.311 of 2018
WITH
EC/146/2017
CS/524/1984
MOHAN LAL SINGHI
Versus
RAJ KUMAR GHOSH & ORS.
APD No.312 of 2018
WITH
EC/146/2017
CS/524/1984
SHAN HAIDER & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.313 of 2018
WITH
EC/146/2017
CS/524/1984
PARNA MUKHERJEE
Versus
RAJ KUMAR GHOSH & ORS.
APD No.314 of 2018
WITH
EC No.146 of 2017
CS/524/1984
IA NO. GA 2 of 2020 (Old No. GA 766 of 2020)
SHADUDDIN AHMED
Versus
RAJ KUMAR GHOSH & ORS.
APD No.315 of 2018
WITH
EC/146/2017
CS/524/1984
SATYENDRA KUMAR JHUNJHUNWALA
Versus
RAJ KUMAR GHOSH & ORS.
APD No.316 of 2018
WITH
EC/146/2017
CS/524/1984
ASHOK KUMAR
Versus
RAJ KUMAR GHOSH & ORS.
APD No.317 of 2018
WITH
EC/146/2017
3
CS/524/1984
VISHAL SIKCHI & ORS.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.318 of 2018
WITH
EC/146/2017
CS/524/1984
ALOKE KUMAR JANA & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.319 of 2018
WITH
EC/146/2017
CS/524/1984
SIBAJI BHAUMIK
Versus
RAJ KUMAR GHOSH & ORS.
APD No.320 of 2018
WITH
EC/146/2017
CS/524/1984
SHASHI KANT SHAH & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.321 of 2018
WITH
EC/146/2017
CS/524/1984
INDRA NATH ROY
Versus
RAJ KUMAR GHOSH & ORS.
APD No.322 of 2018
WITH
EC/146/2017
CS/524/1984
GOPENDRA NARAYAN CHATTOPADHYAY & ANR.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.323 of 2018
WITH
EC/146/2017
CS/524/1984 SHABNAM HAIDER
Versus
RAJ KUMAR GHOSH & ORS.
APD No.324 of 2018
WITH
EC/146/2017
CS/524/1984
ANJAN CHATTERJEE
Versus
RAJ KUMAR GHOSH & ORS.
APD No.325 of 2018
WITH
EC/146/2017
4
CS/524/1984
SUPRIYO GHOSH
Versus
RAJ KUMAR GHOSH & ORS.
APD No.326 of 2018
WITH
EC/146/2017
CS/524/1984
V. RAGHAVAN
Versus
RAJ KUMAR GHOSH & ORS.
APD No.327 of 2018
WITH
EC/146/2017
CS/524/1984
JAYANTA SARKAR
Versus
RAJ KUMAR GHOSH & ORS.
APD No.328 of 2018
WITH
EC/146/2017
CS/524/1984
REYAZ AHMED KHAN
Versus
RAJ KUMAR GHOSH & ORS.
APD No.329 of 2018
WITH
EC/146/2017
CS/524/1984
SANJAY KUMAR SHAW
Versus
RAJ KUMAR GHOSH & ORS.
APD No.330 of 2018
WITH
EC/146/2017
CS/524/1984
RITA DEVI SINGHANIA
Versus
RAJ KUMAR GHOSH & ORS.
APD No.331 of 2018
WITH
EC/146/2017
CS/524/1984
IA No. GA 2 of 2021
BANDANA BASU
Versus
RAJ KUMAR GHOSH & ORS.
APD No.332 of 2018
WITH
EC/146/2017
CS/524/1984
ROADLINES INDIA PVT. LTD.
Versus
RAJ KUMAR GHOSH & ORS.
APD No.333 of 2018
WITH
5
EC/146/2017
CS/524/1984
KAMALENDU DHAR
Versus
RAJ KUMAR GHOSH & ORS.
APD No.334 of 2018
WITH
EC/146/2017
CS/524/1984
SWAPNA CHAKRABORTY
Versus
RAJ KUMAR GHOSH & ORS.
APD No.335 of 2018
WITH
EC/146/2017
CS/524/1984
MD. FAJAR ALI BISWAS
Versus
RAJ KUMAR GHOSH & ORS.
APD No.336 of 2018
WITH
EC/146/2017
CS/524/1984
DEBAPRASAD DAS
Versus
RAJ KUMAR GHOSH & ORS.
APD No.337 of 2018
WITH
CS No.524 of 1984
EC/146/2017
CHAMPA BISWAS
Versus
RAJ KUMAR GHOSH & ORS.
APD No.338 of 2018
WITH
EC/146/2017
CS/524/1984
BHABA SUNDAR PANDA
Versus
RAJ KUMAR GHOSH & ORS.
APD No.339 of 2018
WITH
EC/146/2017
CS/524/1984
MOHAN SINGH RAYET
Versus
RAJ KUMAR GHOSH & ORS.
APD No.340 of 2018
WITH
EC/146/2017
CS/524/1984
KELA BROTHERS & ORS.
Versus
RAJ KUMAR GHOSH & ORS.
6
For the appellants in APD 269 of 2018 : Mr. Arindam Banerjee, Adv.,
Mr. Ashis Kumar Mukherjee,
Ms. Arpita Saha,
Mr. S. Prasad.
For the appellants in
APD 270 of 2018 to APD 272 of 2018 , : Mr. Jishnu Choudhury, Adv.,
APD 288 of 2018 to APD 298 of 2018, Ms. Noelle Banerjee, Adv.,
APD 310 of 2018 to APD 313 of 2018, Mr. Sidhartha Sharma, Adv.,
APD 315 of 2018 to APD 340 of 2018. Ms. Shalini Basu, Adv.
For the appellants in APD 314 of 2018 : Ms.Yahya Mosharaf Hussain,
For the respondent/decree holders : Mr. Rohit Das, Adv.,
Mr. Aniruddha Bhattacharyya,
Mr. Niladri Khanra, Adv.,
Ms. Kishwar Rahman, Adv.
Judgment on : 26.04.2022
ANIRUDDHA ROY, J .:
1. This cluster of appeals arose from a common judgment and order dated
August 16, 2018 passed in Execution Case No. 146 of 2017 whereby and
whereunder the occupiers of an immovable property were directed to be
dispossessed. The said cluster of appeals involve same and common
question of law for consideration before this Appellate Court and hence, by
consent of the parties, the appeals are taken up together, heard and are
being disposed of by this common judgment and order.
The Appeal:
2. The appellants are occupiers of various portions of premises no. 2
Jawaharlal Nehru Road, Kolkata-700013 previously known as Chowringhee
Road (for short, the suit property) and are the obstructionists resisting an
eviction decree dated May 03, 2017, which was a compromise decree for
eviction passed in suit no. 524 of 1984 (Raj Kumar Ghosh & Anr. vs.
Jayashree Ghose & Ors.) (for short, the second suit). The
appellants/obstructionists claimed to be the sub tenants under the
predecessors of the first and the second defendants in the Bando's suit and
are still in settled possession and occupation of various portions of the said
property. The appellants came to know about the said compromise decree
7
for eviction dated May 03, 2017 (for short, the compromise decree) as and
when the learned receiver appointed by the Executing Court went to take
possession. Immediately then they applied before the Executing Court
under the provisions of Order XXI, Rule 99 read with section 47 of the Code
of Civil Procedure, 1908 (for short, the code) and resisted the said
compromise decree for eviction principally on the grounds that, the
appellants had independent rights in respect of their respective portions of
the property in which they were in settled possession and the said
compromise decree was a clear result of fraud, amongst others. By the said
impugned judgment and order such applications filed by the appellants
were dismissed and direction was made to handover possession to the
receiver, hence, these appeals.
Facts:
3. One Debaprosad Gooptu was the owner of the suit property. Subsequently,
the property after his demise was devolved upon his legal heirs and
successors (for short, the Gooptus). One Probodh Chandra Mitra, since
about 1940 was a monthly tenant under Debaprosad. Probodh during his
lifetime carried out a hotel business from the said property under the name
and style of "Bristol Hotel" as the sole proprietor thereof. Probodh, the
original tenant, died on June 12, 1949, leaving a will with a bequeath in
favour of his nephew Prafulla Kumar Mitra. Debaprosad accepted Prafulla
as a monthly tenant in place and stead of Probodh at a monthly rent of
Rs. 2,800/-. Since then Prafulla was continuing to carry out the said hotel
business. The said monthly rent was varied by consent from time to time.
Prafulla obtained the grant of probate in respect of the said will of Probodh.
4. On or about February 15, 1951 one Nibaran Mitra, another nephew of
Probodh applied before the Learned District Judge, Alipur for the revocation
of the grant of probate which was obtained by Prafulla being revocation
case no. 8 of 1951. In the said proceeding Prafulla was appointed as the
receiver in respect of the said hotel business. Prafulla was continuing as
tenant under Debaprosad in respect of the said property even after he was
8
appointed as the receiver. Debaprosad on August 12, 1953 issued a notice
to quit and sought to determine the tenancy of Prafulla on the sole ground
of default in making payment of rent and called upon Prafulla to deliver
possession immediately after expiry of the month of August, 1953. Since
Prafulla did not make over the possession, Debaprosad on or about April
05, 1954 filed an eviction suit before this Court being suit no. 1059 of 1954
(for short, the first suit) seeking delivery of possession and recovery of
arrear rents along with consequential reliefs.
5. By an order dated May 29, 1959 the District Judge, Alipur, revoked the
probate in respect of the will of Probodh, though, inspite thereof Prafulla
was in continuous and settled possession of the property and pursued the
appeal from the said order of revocation.
6. On or about April 11, 1960 the said first suit was decreed ex parte and an
appeal was carried out there from being appeal no. 109 of 1960. In the said
appeal on September 11, 1963 a compromise was arrived at by which on
certain terms and conditions as mentioned therein, the suit was remanded
for further trial.
7. Meanwhile Prafulla inducted some of the appellants obstructionists in the
various portions of the property as his tenants and was receiving rents.
8. By a will dated July 16, 1963 Debaprosad the original landlord, bequeath
the said property in favour of his son Dhruba Gooptu.
9. On December 12, 1964 Debaprosad died. On April 03, 1965 Prafulla being
the first defendant in the first suit died.
10. By an order dated August 04, 1965 this Court recorded the death of
Debaprosad and substituted Dhruba as the plaintiff in the said first suit.
Similarly on August 14, 1965 this Court by its order recorded the death of
Prafulla who was the original first defendant in the first suit and
substituted his legal heirs and successors in his place and stead, namely,
Aruna Basu Malik, Promil Ghosh, Subarnabala Mitra. Since then, the
cause title of the first suit was substituted as Dhruba Gooptu vs. Aruna
Basu Malik & Ors. After the death of Prafulla his legal heirs and successors
9
namely Aruna Basu Malik were continuing in accepting rents from the
appellants obstructionists acknowledging their tenancy in the property and
issued rent receipts. The appellants had disclosed such rent receipts in
their respective applications.
11. On October 14, 1974 the District Judge, Alipur granted probate in respect
of the will of Prafulla dated March 31, 1965 in favour of Aruna, the sole
executrix, which according to the appellants include the tenancy right of
Prafulla. On October 07, 1977 probate was obtained by Dhruba in respect
of the will of Debaprosad dated July 16, 1963.
12. After obtaining the grant of probate in respect of the will of Debaprosad by
a registered lease dated February 06, 1978, Dhruba granted lease in favour
of the seven individual partners of Bando & Co. during pendency of the first
suit. On February 22, 1983 Dhruba died leaving a will appointing Shankar
Narayan Gooptu and Naranarayan Gooptu as his executors. The probate is
not yet obtained. The said two executors of the will of Dhruba
acknowledged the Bando as alleged lessees of the property and informed
them about the demise of Dhruba. On May 20, 1983 the Bando applied for
recording the death of Dhruba and for the necessary substitution in the
first suit, the same was rejected. The first suit was then abated in 1983
itself upon the death of the plaintiff and since there was no substitution.
13. In 1984 the partnership firm of the Bando namely Bando and Co. was
reconstituted. On July 25, 1984 the Bando filed suit no. 524 of 1984 (for
short, the second suit) before this Court claiming the following reliefs:
"(a) Declaration that the Indenture of Lease dated 6th February 1978 executed by Dhruba Gooptu,
since deceased, in favour of the original plaintiffs is valid and subsisting and binding upon all the
parties concerned and/or upon their agents, assign or representative,
(b) Declaration that the present defendant Nos.1 and original defendant no.2 have no right-title or
interest to remain in possession of premises No.2, Jawharlal Nehru Road, Calcutta, in any
capacity whatsoever
(c) Declaration that the present defendant Nos.1 and the original defendant no.2 have no right or
authority or jurisdiction to collect any rents, issues and profits from the persons to whom they
have wrongfully sublet the said premises,
(d) Declaration is also necessary that the tenancy created by Debaprosad Gooptu in favour of
Profulla Kumar Mitra, both since deceased in respect of premises No.2, Jaharlal Nehru Road,
Calcutta has duly been determined and/or been terminated and the same are binding upon the
heirs of Prafulla Kumar Mitra,
(e) Declaration that the present plaintiffs by virtue of the Indenture of lease dated 6th February
1978 are entitled to immediate possession of the demised premises,
10
(f) Declaration that the present defendant no.1 and the original defendant no.2 to 4 are bound to
make over peaceful vacant possession of the demised premises to the present plaintiffs.
(g) Possession of the said premises No.2, Jawaharlal Nehru Road, Calcutta described schedule 'X'
hereto.
(h) Perpetual injunction restraining the present defendant no.1 and the original and/or each of the
defendants and/or their agents or assigns or representatives from dealing with or encumbering
the demised premises in any manner whatsoever to the detriment of the interests of the present
plaintiffs,
(i) Injunction,
(j) Receiver,
(k) Costs,
(l) Such further order/orders as to this Hon'ble Court may deem fit and proper".
14. The plaint in the second suit was amended.
15. On or about August 24, 1984 an application was filed by the plaintiffs in
the second suit for appointment of receiver on the premises to collect rent
from the tenants/sub-tenants and an order of injunction was passed. On
June 18, 1985 an order was passed by this Court appointing a Special
Officer to cause an enquiry in the property and to file a report. Ms. Aruna
Basu Malik, was directed to keep the amount collected from tenants/sub
tenants in a separate bank account and to pay regular maintenance in
respect of the suit property. She was also directed not to induct any further
tenant in the property. The Special Officer so appointed filed a report on
July 15, 1985 recording the names of the occupants at the property.
16. By an order dated December 05, 1985 in the testamentary proceeding
relating to the estate of Prafulla, Aruna Basu Malik, the first defendant in
the second suit being the executrix was authorized and directed to collect
rents, issues, profits and deposits and to maintain a separate account for
this purpose and Aruna was further allowed to incur expenses and make
the necessary disbursement out of such collections. The receiver so
appointed on the property in December, 1985 submitted his second report
mentioning the outstanding receivable out of the property. On April 06,
1985 the said second suit was dismissed on the ground of default.
17. On April 17, 1995 Aruna made her last will and testament naming
Jayashree Ghose as the executrix and bequeathed the tenancy in the suit
11
premises in her favour solely. Jayashree is the first defendant at present in
the amended plaint in the second suit.
18. Between 1988 to April, 2005 the original plaintiffs in the said second suit
died. The partnership firm namely Bando and Co. was reconstituted from
time to time and the plaintiffs at present in the amended plaint had claimed
to be the present partners of the Bando and Co.
19. By an order dated August 11, 2008 Jayashre was appointed as the
administrator pendent lite in respect of the estate of Aruna.
20. By an order dated November 18, 2015 after about ten years of the second
suit being dismissed for default, was restored, the amendment was allowed
in the plaint and the original parties in the said second suit were
substituted at the instance of the plaintiffs. None appeared on behalf of the
second, third and fourth defendants. On or about December 12, 2016
Jayashree filed her written statement in the second suit. Issues in the suit
were framed on January 11, 2017. On May 3, 2017 the second suit was
decreed on compromise on the basis of a terms of settlement arrived at
between the plaintiffs and the first defendant Jayashree. From the terms of
settlement it appears that, the second, third and fourth defendants did not
appear and contest the suit.
21. The plaintiff decree holders then in June, 2007 instituted the execution
proceeding being EC 146 of 2017. An order was passed on June 13, 2017
appointing receiver to take actual physical possession of the portions of the
premises from the occupants. By an order dated July 04, 2017 receiver was
directed to put notice at the entrance of the property. There are fifty eight
nos. of occupants who are resisting the said compromise decree. Such
applicants in July, 2017 filed their respective applications under the
provisions of order XXI, Rule 99 read with Section 47 of the code resisting
the decree. Parties had exchanged their respective affidavits in such
resistance applications including the supplementary affidavit by the decree
holder and the counter thereto by the obstructing claimants.
22. On August 16, 2018 the judgment and order impugned was passed.
12
Arguments:
23. Mr. Jishnu Choudhury, learned counsel with Ms. Noelle Banerjee, Advocate
appearing on behalf of the appellants, inter alia, in APD 269 of 2018
submitted that, Probodh was a monthly tenant under Deboprasad since
prior to 1949 under the State Tenancy Law of 1950 then prevailing, which
governed the relationship of land lord and tenant between Deboprasad and
Probodh. After the demise of Probodh, Prafulla was occupying the suit
property and carried out the hotel business of Probodh from the demised
portion of the suit property and Deboprasad as the land lord regularly
accepted monthly rent from Prafulla. Thus, Prafulla became a monthly
tenant of Deboprasad in respect of the demised property. On the sole
ground of default the eviction notice dated August 12, 1953 was issued to
Prafulla under the relevant provision of the West Bengal Premises Rent
Control Act, 1950 (for short, the said Tenancy Act of 1950). The first suit
was then filed on the basis of the said eviction notice, which later had ripen
to a consent decree of September 11, 1963 by which the suit was remanded
for fresh hearing. Subsequently with the death of the plaintiff in the first
suit no substitution had taken place and as a result, the first suit stood
abated. In view of such abatement no adjudication took place in the said
first suit which could bind the parties therein and the land lord tenant
relationship between the Gooptus and Mitras had continued. According to
Mr. Chowdhury, such jural relationship still continuing between the land
lord of the property and the successor in interest of Prafulla. During the
lifetime of Prafulla the appellants were inducted in the various portions of
the suit property and since then they are in settled possession and
occupation of their respective portions in the suit property. Thus, the
Bando, plaintiffs in the second suit did not have and could not claim any
privity or any jural relationship with the appellants. The appellants are
continuing in possession at the suit property by virtue of their independent
right being inducted by Prafulla in the property to the notice and knowledge
of Deboprasad the original landlord. The appellant had acquired an
13
independent right, which was required to be adjudicated by the executing
court, to which the executing court had erred in law and on facts by not
doing so and erroneously directed dispossession of the appellants from the
suit property.
24. He then submitted that, Deboprasad had issued the said eviction notice
dated August 12, 1953 asking Prafulla to quit under the said Rent Act of
1950 solely on the ground of default. Then Deboprasad filed the first suit
seeking eviction of Prafulla. The first suit ultimately stood abated. The
notice, therefore, did not result in forfeiture. Issuance of eviction notice
under the Rent Act does not result the tenant becoming a trespasser till the
decree for eviction is pronounced by a jurisdictional civil court and such a
tenant continues as a statutory tenant. In support of his contentions Mr.
Chowdhury relied upon the following judgments:-
(i) In the matter of: Krishna Prosad Bose versus Official Assignee of the High
Court of Judicature at Rangoon and others, reported at AIR 1936 Cal 505;
(ii) In the matter of: Damadilal and Others versus Parashram and Others,
reported at (1976) 4 SCC 855;
(iii) In the matter of: V. Dhanapal Chettiar versus Yesodai Ammal, reported at
(1979) 4 SCC 214.
25. Mr. Choudhury then submitted that, the lessor after divesting itself of
possession in favour of the lessee, only retains a right of reversion and to
collect rent. Reversion is used to forfeit and get back possession of the
property from the lessee. This right can only be transferred by way of sale
under Section 54 of the Transfer of Property Act. Therefore, during the
currency of a lease or tenancy, no further lease can be created in respect of
the self same property and such concurrent lease or tenancy is void and of
no effect. In support of such contention Mr. Choudhury had relied upon the
following decisions:-
(i) In the matter of: Swapan Kumar Dutta versus Dharam Chand Jaiswal &
Anr., reported at (2002) 2 CHN 627;
(ii) In the matter of: Sambhunath Mitra and Others versus Khaitan Consultant
Ltd. and others, reported at (2005) 2 CHN 519 [Reversed in (2015) 15 SCC
567];
14
(iii) In the matter of: Prabhat Kumar Paul versus Shree Shree Lakshmi
Janardan Thakur & Ors., reported at (2008) 2 CHN 445;
(iv) In the matter of: Swapan Kumar Dutta versus Bimala Devi Shaw alias
Jaiswal & Ors., reported at (2004) 3 Cal LT 414;
(v) In the matter of: M. E. Moola Sons, Limited versus Official Assignee of the
High Court of Judicature at Rangoon and Others, reported at AIR 1936 PC
230.
26. Mr. Choudhury then submitted that, the status of the Mitras after the
abatement of the first suit became that of a statutory tenant, since the
notice of eviction. Since the notice of eviction dated August 12, 1953 was
issued and the same did not culminate into any eviction decree as the first
suit stood abated, in such situation, no suit for possession is maintainable
against a statutory tenant as a trespasser. In support of such contention
Mr. Choudhury relied upon a decision of the Supreme Court In the matter
of: R.S. Grewal and Others versus Chander Prakash Soni and Another,
reported at (2019) 6 SCC 216.
27. Mr. Choudhury on behalf of the appellants next argued that, an under
lessee is not prejudiced by surrender of lease under Section 115 of the
Transfer of Property Act, 1882. In case of such a surrender, the lease is
obliterated and the direct privity is established between under lessee and
the headlessor. In support of this contention Mr. Choudhury relied upon
the following decisions:
(i) In the matter of: Suleman Haji Ahmed Oomer versus Darashaw Pirojshaw
Dubash,reported at AIR 1939 Bom. 98= 1938 SCC Online Bom. 44;
(ii) In the matter of: Tirath Ram Gupta versus Gurubachab Singh and
Another, reported at (1987) 1 SCC 712.
28. Mr. Jishnu Choudhury then proceeded to submit that, the compromise
decree pronounced in the second suit on the basis whereof the execution
proceeding was initiated and the appellants were sought to be dispossessed
from the property, was not lawful and was obtained by practising fraud on
Court as also on parties and as such the same is liable to be set aside and
not tenable in law. Any steps taken or to be taken pursuant to such
fraudulent decree would also be void. He then submitted that, in case of
forfeiture of lease or tenancy, under lessee cannot get any right to resist the
15
same, except in case of fraud. To support such contention Mr. Choudhury
relied upon the decision; In the matter of: Sailendra Nath Bhattacharya
versus Bijan Lal Chakrabarti, reported at AIR 1945 Cal 283=1944 SCC
Online Cal 74.
29. Mr. Choudhury then submitted that, a consent decree is nothing but an
agreement between the parties thereto and the same is subjected to rights
and liabilities which an agreement may enjoy or suffer. Having a stamp of
Court affixed on a consent decree, which is otherwise a result of fraud, does
not change the nature of the document and the same does not stand on a
better footing than an agreement. Such a consent decree is obtained from
Court of law by practicing fraud on Court and on parties is liable to be set
aside. The consent decree is not a result of any adjudication but merely an
agreement. Seal of Court cannot make it perfect, if it is a result of fraud. In
support of such contention Mr. Choudhury relied upon the following
decisions:
(i) In the matter of: Ruby Sales and Services (P) and Another versus State of
Maharastra and Others, reported at (1994) 1 SCC 531;
(ii) In the matter of: Baldevdas Shivlal and Another versus Filmistan
Distributors (India) P. Ltd. and Others, reported at (1969) 2 SCC 201.
30. It was then submitted that, a compromise decree under Order XXIII, Rule 3
of the Code requires to be a lawful contract and understanding between the
parties. The seal of the court is given when the court is satisfied that, such
an agreement is lawful. To support such contentions the learned counsel
relied upon a decision of the Hon'ble Supreme Court in the matter of: Rama
Narang versus Ramesh Narang and Another, reported at (2006) 11 SCC 114.
31. On the scope of the proceeding under Order XXI, Rule 99 read with Section
47 of the code and the jurisdiction of the Executing Court thereunder, Mr.
Choudhury submitted that, an objection raised by a stranger to a decree
can be gone into and has to be adjudicated lawfully by recording a finding
in respect of the independent right of an obstructionist. It is the obligation
of the Executing Court to determine the questions legally raised by an
obstructionist and must be determined between the parties in the
16
execution, as provided under Rule 101 of Order XXI of the code. In support
of such contention Mr. Choudhury relied upon a decision of the Hon'ble
Supreme Court in the matter of: Silverline Forum Pvt. Ltd. vs. Rajiv Trust and
another, reported at AIR 1998 SC 1754.
32. Mr. Arindam Banerjee, learned counsel with Mr. Arpita Saha and Ashis
Kumar Mukherjee, Advocates appeared for the appellant in APD No. 269 of
2018. At the outset Mr. Banerjee specifically submitted that, he adopted the
entire submissions of Mr. Jishnu Choudhury, learned counsel, as the
defence of his client is also same and identical with that of Mr.
Choudhury's clients in resisting the decree passed in the second suit and to
oppose the impugned judgment and order under appeal.
33. Mr. Arindam Banerjee, learned counsel submitted few further points in
addition to the submissions already made by Mr. Choudhury. Mr. Banerjee
also accepted the facts already stated by Mr. Jishnu Choudhury, learned
advocate.
34. Mr. Arindam Banerjee, learned counsel drew attention of this Court to the
plaint filed by the Bando in the second suit, he placed the relevant
paragraphs and the reliefs claimed therein. He submitted that, the basis of
the alleged cause of action of the second suit was that, the Mitras were
trespassers in the property and the Bando by virtue of their 1978 lease had
stepped into the shoes of the land lords, namely, Gooptus and acquired all
the rights of the Gooptus to proceed against Mitras for their eviction. The
obstructionists being the appellants were not impleaded in the second suit
as the defendants, though, Bando was aware of their settled possession at
the suit property as the tenants under the Mitras. Drawing attention of this
Court to the reliefs claimed in the said second suit filed by the Bando, he
submitted that, a declaration was sought for, that the tenancy created by
Deboprasad Gooptu in favour of Mitras in the suit premises be determined
and/or terminated. Declaration was also sought for that, by virtue of the
said 1978 lease the Bando was entitled to immediate possession of the
demised premises.
17
35. Mr. Banerjee submitted that, it was a tenancy granted to Mitras by the
Gooptus under the said Rent Act of 1950 and not under the Transfer of
Property Act. In absence of any decree for eviction passed by a competent
Civil Court against the Mitras, the question of evicting the Mitras or their
successors in interest from the property in the subject execution proceeding
did not and could not arise. The client of Mr. Banerjee had an independent
right by virtue whereof he is in a settled possession of the property, who
could not be thrown out from its settled possession at the suit property in
the subject execution proceeding.
36. Mr. Banerjee, drew the attention of this Court to the supplementary
affidavit filed on behalf of the decree holders, affirmed by Raj Kumar Ghosh
on November 09, 2017 filed in EC No. 146 of 2017. He drew attention of
this Court to the relevant paragraphs and submitted that, Bando were
aware of the abatement of the first suit filed by the Gooptus for the eviction
of Mitras. The said first suit being abated there was no proceeding in the
eye of law for eviction of Mitras. Therefore, question of evicting the sub-
tenants under the Mitras did not and could not arise through the subject
execution proceeding, in which the impugned order was passed.
37. Mr. Banerjee then, submitted that, the lessee can maintain a suit on his
lease for possession against the lessor and against any third person who
may be in possession. On the basis of such settled principle of law, he
submitted that, the second suit is barred by law for not impleading the
appellants/occupiers/obstructionists. The suit being bad, the compromise
decree is also bad and is of no effect. Hence, the impugned judgment and
order is also bad and is of no effect. In support of his contention Mr.
Banerjee placed reliance on: Mulla's Commentary on the Transfer of Property
Act, 1882 (12th Edition, Page 852).
38. Mr. Banerjee then submitted that, if a decree is nullity, an obstructionist
can raise such objection notwithstanding with the fact that, the
obstructionist has no independent right of possession. Once such objection
is raised the burden lies on the decree holder to establish that, the decree
18
put into execution is valid. Such an adjudication within the scope of Order
XXI, Rule 101 of the Code even suggests for a detailed trial, if necessary, to
adjudicate upon all the factual issues to come to a decision as to the right
of the obstructionist, if any. In support of such contention Mr. Banerjee
relied upon the following judgments:
(i) In the matter of: Subhendu Gupta vs. Calcutta Vyapar Pratisthan Ltd.,
reportd at (1995) 1 Cal LT 427;
(ii) In the matter of: French Agency vs. Smt. Jiwani Kumari Parakh, reported
at (1999) 2 Cal LJ 513.
39. Mr. Banerjee further submitted that, once the decree holder faces with
obstruction/resistance by the obstructionist in the execution of decree for
possession, the decree holders, the Bando in the instant case, were
required to apply under Order XXI, Rule 97 of the code for removal of such
obstruction. The decree holder cannot bypass or circumvent such
obstruction. In support of such contention the learned counsel relied upon
the decision of the Hon'ble Supreme Court In the matter of: Anwarbi vs.
Pramod D.A. Joshi, reported at (2000) 10 SCC 405.
40. On the effect of abatement, the Learned Counsel, Mr. Banerjee submitted
that, with the abatement of the said first suit filed by the Gooptus the
entire cause of action as on the date of the filing of the suit became without
of any further effect including the said notice to quit dated August 12,
1953. The said notice to quit was the basis of the cause of action in the said
first suit which had came to a complete end and of no further effect
immediately on the abatement of the suit. The Gooptus or anybody through
them could not have taken any advantage of the said first suit or the said
notice to quit dated August 12, 1953. In support, he relied upon a decision
of a Co-ordinate Bench of this court In the matter of: Naimuddin Biswas and
Ors... defendant, appellants versus Maniraddin Laskar and Ors... plaintiffs,
respondents, reported at 32 Calcutta Weekly Notes (CWN) 299.
41. On the basis of the above arguments both Mr. Jishnu Choudhury and Mr.
Arindam Banerjee, learned advocates appearing for the obstructionists
appellants submitted that, the impugned judgment and order should be set
19
aside and/or reversed and rights of the appellant need to be determined
first.
42. In addition to the submissions as recorded above, Mr. Arindam Banerjee,
learned counsel, filed a detailed notes on argument, to which this Court
had take note of. Upon due consideration of the said written notes on
argument it appeared to this Court, that, certain additional judgments were
referred to in support of the same and identical propositions already argued
by Mr. Jishnu Choudhury, learned counsel and the same had already been
adopted by Mr. Banerjee. To avoid repetition, this Court thought it fit, with
due respect to Mr. Arindam Banerjee, learned Advocate, not to discuss the
same, as the same would only multiply the volume of papers on record.
43. Mr. Rohit Das, Learned Counsel appearing for the decree holder (Bando)
submitted that, the moment the said notice to quit dated 12th August, 1953
was served upon the Mitras by the Gooptus, under the said Rent Act of
1950, the status of the Mitras became that of a statutory tenant in the suit
property. The first suit for eviction was filed by the Gooptus on the basis of
the said notice to quit. Though the said first suit stood abated, the said
notice to quit dated 12th August, 1953 did not cease its force and the status
of the Mitras continued as a statutory tenant and the Mitras could not have
claimed a better right. On February 06, 1978 the Gooptus demised the said
suit premises on lease in favour of the Bando for ninety nine years. The
Mitras accepted and acknowledged such lease. The Mitras accordingly
acknowledged the Bando as their landlord in place and stead of Gooptus. It
was contended on behalf of the decree holder that by virtue of the said lease
dated February 06, 1978 the Bando had stepped into the shoes of the
landlord Gooptus in the suit premises with a right of a landlord and lessor
qua the Mitras. The Bando had a right to collect rent and also of reversion
qua the Mitras. Accordingly the Bando became the beneficiary of the said
notice to quit dated August 12, 1953 and enforced the same by filing the
said second suit for eviction against the Mitras and/or their successors-in-
interest in the suit premises along with the subsequent cause of action on
20
the ground of illegal and wrongful occupation in the premises. He then,
submitted that, the lease dated February 06, 1978 granted by the Gooptus
in favour of Bando was a valid lease and even if the same is to be construed
as a concurrent lease, the same was valid and lawful. In support, the
Learned Counsel for the decree holder had relied upon numerous
judgements of various High Courts in his written notes and ultimately he
selected the six best of such judgements according to him and formally
cited before this court, which are:
(i) In the matter of: P.J. Irani versus State of Madras & Anr., reported at AIR
1961 SC 1731;
(ii) In the matter of: Jahar Lal Bhutra versus Bhupendra Nath Basu, reported
at ILR (1922) 49 Cal 495: AIR 1922 CAL 412;
(iii) In the matter of: Shree Narayan Mansingha versus Durgadas Mishra,
reported at 55 CWN 86;
(iv) In the matter of: Manikkam Pillar versus Rathnasami Nadar and Ors.,
reported at (1917) 33 MLJ 684;
(v) In the matter of: Munshi Lal Niyaria versus Kedar Nath & Ors., reported at
MANU/ UP/ 0346/ 1970: (1970) 40 AWR 803 and
(vi) In the matter of: Bhagat Ram and Others versus Kesham Deo and others,
reported at AIR 1965 Assam 55.
44. On the strength of the law as stated in the judgements, above, Mr. Das,
Learned Counsel submitted that, since the concurrent lease is permissible
in law and since the appellants had admitted their sub-tenancy under the
Mitras and as such, they claimed their possession right being a derivative
right from the Mitras, the eviction decree obtained by the Bando against the
Mitras automatically bound the appellants and appellants were liable to be
evicted as such, with the eviction of the Mitras. There was no requirement
to make the appellants party defendants in the second suit nor any
individual eviction suit was required to be filed by the Bando against the
appellants for their respective eviction. To sum up on this point, the
Learned Counsel for the decree holder submitted that, the compromise
decree in the said second suit passed in favour of the Bando against the
Mitras for eviction automatically bound the appellants and they were liable
21
to be evicted as such. In support, the Learned Counsel relied upon the
following two decisions of the Hon'ble Supreme Court:-
(i) In the matter of: Biswanath Poddar versus Archana Poddar and Anr.,
reported at (2001) 8 SCC 187: AIR 2001 SC 2849;
(ii) In the matter of: Rup Chand Gupta versus Raghuvanshi Private Limited
and Anr., reported at AIR 1964 SC 1889.
45. The learned Counsel for the decree holder then referred to Sub-Section 1 to
Section 13 of the Rent Act of 1950, Section 16 of the West Bengal Premises
Tenancy Act, 1956 (for short, the 1956 Rent Act) and Section 26 of the West
Bengal Premises Tenancy Act, 1956 (for short, the 1997 Rent Act) and
submitted that, to create an independent right in favour of the sub-tenants
the twin conditions must be satisfied simultaneously, firstly, a notice must
be served upon the landlord by the tenant and sub-tenant informing
creation of sub-tenancy within the specified period and secondly, the
landlord must issue his/her consent in writing for creation of such sub-
tenancy. Any one of the said twin conditions would not suffice even. In the
present case, the said twin conditions were never satisfied neither anyone
of them. There was no such notice served by the Mitras by the appellants
upon the Gooptus informing creation of the sub-tenancies in favour of the
appellants nor did the Gooptus issue any written consent for the same.
Therefore, there was no independent right, created in favour of the
appellants. Thus, the appellant sub-tenants, in absence of their
independent right were bound by the compromise decree for eviction
against the Mitras passed in the said second suit. The Bando being the
decree holder were entitled to execute the said decree against the Mitras to
have the premises vacated and no independent proceeding was required to
be initiated against the appellants sub-tenants.
46. Mr. Das, learned Counsel submitted that, the Mitras could be termed at
best tenants at sufferance which is different from a trespasser. A tenant at
sufferance is merely a fiction of law to avoid continuance in possession
operating as a trespasser. The act of holding however after expiration of the
22
term does not necessarily create a tenancy of any kind. If the lessee
continues to remain in possession after the determination of the lease, the
law is that, a tenant at sufferance akin to a trespasser having no
independent right to continue with possession. Since Prafulla Kumar Mitra
had already lost the protection from eviction under the said Rent Act of
1950 the appellants could not get any protection with any independent
right. On this score, he distinguished the judgements In the matter of:
Krishna Prosad Bose (supra) and Calcutta Credit Corporation Limited (supra).
He further submitted that, since the Mitras lost protection under the Rent
Act of 1950, no independent right was created in favour of the sub-tenants
neither any direct tenancy took place between the appellants and the
Gooptus. On this score, he had distinguished the judgements In the matter
of: Damadi Lal and Ors. (supra) and V. Dhanapal Chettiar (supra).
47. To counter the argument of the appellants that the concurrent lease is not
permitted in law, he submitted that, all the cases relied upon on behalf of
the appellants on this issue, when there was a valid and subsisting lease in
favour of the lessee then the second lease was considered to be invalid.
However, in the facts of this case, the tenancy in favour of the Mitras be it
contractual or be it statutory had already been determined and the first
suit was instituted on the basis of the said notice to quit dated August 12,
1953 by the Gooptus against the Mitras. During pendency of the said first
suit, the second lease dated February 06, 1978 was executed in favour of
the Bando. On this score, he distinguished the judgements relied upon on
behalf of the appellants In the matter of: Swapan Kumar Dutta (supra);
Sambhunath Mitra (supra); Prabhat Kumar Paul (supra); M.E. Moola Sons
Limited (supra). He further submitted that, the judgement of the Co-
ordinate Bench of this court In the matter of: Sambhunath Mitra and Ors.
(supra) was over-ruled and reversed by the Hon'ble Supreme Court In the
matter of: Khaitan Consultant Limited versus Sulata De & Ors.,
reported at (2015) 15 SCC 567 on a technical point and the subsequent
judgements of this Hon'ble High Court proceeded on the basis of treating
23
the said over-ruled judgement as a precedent. It was submitted that, the
Co-ordinate Bench of this court In the matter of: Sambhunath Mitra
proceeded by disregarding the other previous division bench judgements of
this point and by treating the judgement of Privy Council In the matter of:
M.E. Moola Sons Limited (supra) as precedent on the proposition that
concurrent lease was not valid. The Privy Council In the matter of: M.E.
Moola (supra) has nowhere stated or even dealt with the issue whether a
concurrent lease is valid or not. In the said decision, the question was
whether a deed authorising somebody to realise future rent and profit was
compulsorily required to be registered under the provisions of Section 17 of
the Registration Act, 1908. In the context of such a case, the Privy Council
held that, right to future rent is "a right in immovable property" and if such
right is transferred in favour of a third person, such transfer is akin to a
sale and should be by a registered instrument in accordance with Section
54 of the Transfer Property Act, 1882. There is nothing in the judgement
which states, even by way of obiter dicta, that if such future right to rent
and profits along with right of reversion is transferred for a fixed term
makes it akin to a lease instead of any perpetuity. The case in M.E. Moola
(supra), made it akin to a sale, such transfer through a registered
instrument of lease, instead of a registered instrument of sale, would be
invalid. Moreover, the judgement In the matter of: Sambhunath Mitra (supra)
proceeded on the basis that since actual possession had already been
transferred by the landlord to the first lessee, there remains nothing to be
transferred in the second lease and, therefore, the same is invalid. However,
he submitted that, this Court in Sambhunath Mitra (supra), with respect,
failed to appreciate that it is a well-established law that in a lease, though
the lessee is in actual possession, the landlord is always deemed to be in
constructive possession through the lessee and such constructive
possession can also be assigned by way of a second lease under Section
109 of the TP Act.
24
48. Referring to Rule 97 to 103 under Order XXI of the Code, the learned
Counsel for the decree holder submitted that, such provisions itself is a
complete code. The rights, if any, of the appellants in the facts of this case
had already been adjudicated upon under the impugned judgement. The
Executing Court had jurisdiction to decide whether the obstructionists
appellants had any right to resist the compromise decree for eviction. Such
right of the appellants had duly been adjudicated upon. The appellants
found to be sub-tenants under the Mitras and was bound by the said
compromise decree arrived at between the Bando and the Mitras for
eviction of Mitras and, therefore, were appellants are also bound by the said
decree and were rightly directed to vacate the premises in due process of
law. A detailed inquiry was made by the Executing Court on the available
materials on record and upon considering the affidavit evidence. From the
materials available on record would clearly show that the impugned
judgement was just and proper and could not have been otherwise, even if
a trial on evidence would have taken place. It is not a mandatory rule with
every such proceeding that calls for trial on evidence. If the Executing Court
is satisfied by application of mind on the available materials on record and
on the basis of the affidavit evidence it can come to its logical conclusion,
as it happened in the present case. The inquiry must be summary and the
proceeding must be disposed of expeditiously, bearing in mind its scope
and the limited question arises for adjudication. For this, trial on evidence
is not mandatory. In support, the Learned Counsel for the decree holder
relied upon the following decisions:
(i) In the matter of: Silverline Forum Private Limited versus Rajiv Trust and
Anr., reported at (1998) 3 SCC 723; AIR 1998 SC 1754;
(ii) In the matter of: Dilip Nag versus Smt. Lilabati Garai, reported at (1991)
SCC OnLine Cal 276, AIR 1992 Cal 219;
(iii) In the matter of: Bool Chand and Ors. versus Rabia and Ors.,
reported at (2016) 14 SCC 270;
(iv) In the matter of: Shamsher Singh and Ors. versus Nahar Singh (D)
thr. L.Rs. and Ors., reported at (2019) 17 SCC 279;
25
(v) In the matter of: Rabi Sen versus Basanti Shaw (Gupta) and Ors., reported
at (2019) SCC OnLine Cal 8280; (2019) 4 Cal. LT 503 (HC).
49. Mr. Das then submitted that, the compromise decree was perfect, lawful
and valid. The Executing Court had also applied its mind and found it to be
so. The Executing Court could not go behind the decree, hence, the
Executing Court in passing the impugned judgement acted within its
domain and jurisdiction as permitted in law. In support, he relied upon the
following decisions:
(i) In the matter of: Vasudev Dhanjibhai Modi versus Raja Abdul Rehman &
Ors., reported at (1970) 1 SCC 670;
(ii) In the matter of: Rafique Bibi (Dead) by LRs versus Sayed Waliuddin
(Dead) by LRs & Ors., reported at (2004) 1 SCC 287.
50. In reply to the submissions made on behalf of the decree holder, both
the learned counsels appearing for the appellants in support of their
respective appeals made a composite submission. They submitted that,
the said compromise decree was a result of fraud and collusion.
Attention of this court was drawn to the written statement filed on
behalf of Jayashree Ghose, the first defendant in the suit. Reliance was
placed specifically on paragraph 3 and 6 thereof, wherein, it was
specifically denied that the said notice to quit dated August 12, 1953
was served upon the said Prafulla Kumar Mitra, since deceased or that
Deboprasad Guptoo, since deceased had called upon the said Prafulla
Kumar Mitra to quit, vacate and deliver up quiet and peaceful
possession of the suit premises on the expiry of the month of August,
1953. It was also contended that, the said Probod Chandra Mitra since
deceased was permitted by the then land lord Deboprasad Guptoo to
sub-let the suit premises. When the compromise was arrived at, the
Mitras sifted from their said stand and defence taken in the written
statement and admitted the service and receipt of the said notice to quit.
According to the learned counsel for the appellants, this would definitely
show that the consent decree was obtained by practising fraud and
26
collusion by and between the parties thereto to suit their purpose. Once
such consent decree is vitiated by fraud and collusion the same would
immediately loose its binding force and effect. Thus, the said collusive
and fraudulent consent decree would not bind the appellants. Both the
learned counsels submitted that, the decision relied upon by them In the
matter of: M.E. Mulla Sons Limited (In liquidation) (supra) is still holding
the field on the subject of concurrent lease, deciding the same to be
invalid. The said decision was not considered in any of the judgments
relied upon by the learned counsel for the decree holder Bando on the
issue of concurrent lease. The Bando did not receive any valid title and
interest from the Guptoos under the said lease of 1978.
Decision:
51. The relevant facts are admitted. Such facts once again are required to be
looked into chronologically. Since before 1949, the said Probod Chandra
Mitra, since deceased was a monthly tenant in the Suit Premises under
Deboprasad Guptoo, since deceased and was running a hotel business
under the name and style "Bristol Hotel" as the sole proprietor thereof.
On June 12, 1949 Probod died. Prafulla Kumar Mitra the nephew of
Probod started running the hotel business from the said suit premises
and he was accepted by Deboprasad Guptoo as a tenant. On August 12,
1953 the notice to quit was issued by the Deboprasad upon Prafulla
seeking possession of the suit premises by the end of August, 1953 on
the sole ground of default in paying rent. Since Prafulla failed to deliver
up possession of the suit premises, Deboprasad on April 05, 1954 filed
suit no. 1059 of 1954 (the first suit) against Prafulla seeking possession
of the property and for recovery of arrear rent. On December 12, 1964
Deboprasad died leaving behind his only son, Dhruba Guptoo. On
March 11, 1965 Dhruba filed an application for his substitution in place
and stead of his father Deboprasad in the first suit. Prafulla died on
27
April 08, 1965, Smt. Aruna Basu Mullick claiming to be the sole
executrix of the purported will of Prafulla filed an application for
substitution in the first suit. During November/December, 1977 Aruna
Basu Mullick paid occupation charges for the last time to Dhruba, the
substituted plaintiff, in the first suit under the order of court. On
February 06, 1978 the registered lease was executed by Dhruba in
favour of Bando whereby the suit premises was demised for a period of
99 years. On February 22, 1983 Dhruba died who was the substituted
plaintiff in the said first suit. On May 20, 1983 an application was made
by the Bando for recording of death of Dhruba and for necessary
substitution by them. Such application was dismissed and the first suit
being suit no. 1059 of 1954 stood abated. On July 25, 1984, CS No. 524
of 1984 (the second suit) was filed by the Bando against the Mitras
seeking their eviction on the strength of their said registered lease dated
February 06, 1978. No subsequent notice to quit after the said notice
dated August 12, 1953 was issued for filing the said second suit. On
May 03, 2017 the said second suit was decreed on the basis of a terms
of settlement signed by the decree holder Bando and Jayashree Ghose
the successor-in-interest of the Mitras. On the basis of the said
compromise decree the Bando instituted the execution proceeding EC
No. 146 of 2017 in which the impugned judgment and order was passed.
52. Following the chronological admitted facts stated above, this Court first
would consider the effect of the said notice to quit and the said first suit
filed by the Guptoos against the Mitras. It is settled that, the moment a
suit stands abated, by fiction of law, everything under the said suit
including the cause of action therein immediately loses binding force,
and is without any effect and further effect. With such an abatement the
entire cause of action in the first suit stood extinguished.
28
53. A Coordinate Bench of this Court In the matter of: Naimuddin Biswas
(supra) had observed as under:-
"Babu Prafulla Kamal Das for the Respondents:- Raise a preliminary objection. The heirs of the
deceased Appellant No.4 not having been brought on the record within three months from the date
of death, the appeal has automatically abated so far as Appellant No.4 is concerned. Or. 22, r. 3,
sub-r.(2), read with Or. 22, r.11, C.P.C. In view of the nature of the suit the result of the partial
abatement is to make the appeal an imperfectly constituted appeal which the Court cannot
proceed to hear. Cites Pulin Behary v. Mahendra Chandra and Kali Dayal Bhattacharjee v.
Nagendra Nath Pakrasi.
.......
Or. 41, r. 4, C.P.C., cannot apply.(1) It does not empower an Appellate Court to reverse or vary a
decree in favour of all the Defendants where the appeal which was preferred by all of them
cannot be continued by all on account of the death of one of them during the pendency of the
appeal.(2) Persons who have not joined in the appeal but in whose favour the Appellate Court
may reverse or vary a decree must be either Plaintiffs or Defendants. The terms "Plaintiffs" and
"Defendants" can refer only to persons who are alive. The deceased Appellant No.4 has by reason
of his death ceased to be a Defendant. His heirs who have not been brought on the record are not
Defendants. (3) The discretionary power conferred upon an Appellate Court by Or. 41, r. 4, C.P.C.
ought not to be exercised so as to frustrate the imperative provision of Or. 22, r.3, sub-r (2), C.P.C.
......
As pointed out by Sargent, C.J., in the case of Bhikaji v. Purshotum an order of abatement is
virtually a decree as it disposes of the Plaintiff's (in the case the Appellant's) claim as completely
as if the suit has been dismissed. This view was followed by the Madras High Court [Subbayya
v. Saminadayyar]. So long as the order if abatement remains it must be considered to have
determined the rights between the parties. To allow an Appellant whose appeal as abated to gain
the advantage of Or.41, r. 4 would result in the same suit in existence at the same time; one is his
favour and one against him. The conclusion to which I have no difficulty in coming is that Or. 41,
r. 4 cannot be applied to the case of an Appellant whose appeal has abated by his death.
No doubt there are decisions to the contrary [Chinta Shah Nilkant v. Gangabur and
Samasundaram Chatterji v. Durga Charan Ghose]. Clearly the appeal as it now stands is
incompetent. The Respondent is entitled to his costs. Hearing-fee one gold mohur".
54. The cause of action of the said first suit was on the basis of the said notice
to quit dated August 12, 1953 seeking eviction against the Mitras on the
ground of default in paying rent. As the said first suit stood abated the
entire cause of action in the said first suit lost its life forever.
55. Without determination of the tenancy or lease no subsequent tenancy or
lease could be granted to a subsequent tenant/lessee in respect of the self
same suit premises. Right to future rent is a right in the immoveable
property and if such right is transferred in favour of a third person, such
transfer must be effected in accordance with the provision of sale contained
in Section 54 of the Transfer of Property Act. In other words, a right to
realise future rent and profit from an immoveable property can be created
only in accordance with the provisions contained in Section 54 of Transfer
of Property Act, meaning thereby, by sale. Therefore, if the effect of a
concurrent lease is to authorize the second lessee, as contended by the
decree holder Bando, to realise rent in future and permit them to sue for
eviction of the first lessee, such right must be created in accordance with
the provisions contained in Section 54 of the Transfer of Property Act.
Thus, if a property is already a subject matter of a tenancy, during
continuance of such tenancy the land lord cannot create another monthly
tenancy over the self same property by taking advantage of the Doctrine of
Concurrent Lease in violation of the provisions contained in Section 54 of
the Transfer of Property Act. Moreover, under Section 60(e) of the Transfer
of Property Act, the mere right to sue cannot be transferred without
creating any interest in the property.
56. In the matter of: M.E. Moolla & Sons Ltd.(supra), which still stands to be a
good law and had settled the issue thereunder. The question was
whether a deed authorizing a person to realise future rent was required
to be registered in terms of the provision of Section 17 of the
Registration Act. On this issue, the Privy Council through Sir George
Rankin held that, right to receive future rent is a right attached to and
runs with the immoveable property and if such right is transferred in
favour of a third person, the same should be followed in accordance with
Section 54 of the Transfer of Property Act, which defines the sale of an
immoveable property. Thus, as contended on behalf of the decree
holders in the present case, the concurrent lease authorised them being
the second lessee to realise future rent and reserves a right of reversion
against the first lessee Mitras, such right must be created strictly in
terms of Section 54 of the Transfer of Property Act. Therefore, the
contention of the decree holders that all such rights were transferred to
the Bando and the Bando had stepped into the shoes of Gooptus as the
land lord by virtue of the said 1978 instrument required a detail
adjudication. In view of the law settled by the Privy Council. It is true
that pursuant to Section 107 of the Transfer of Property Act, for the
purpose of creation of a lease of an immoveable property other than from
year to year or for any term exceeding one year or reserving a yearly
rent, even an oral agreement coupled with delivery of possession of the
property is sufficient. Therefore, if a property is already a subject matter
of an existing tenancy, during the currency of such tenancy the land
lord cannot create second monthly tenancy in respect of the self same
property by taking advantage of the Doctrine of Concurrent Lease in
contravention of the provisions laid down under Section 54 of the
Transfer of Property Act.
57. Under Section 109 of the Transfer of Property Act, where a lessor
transfers the property leased or part thereof or any of his interest
therein, a third party acquiring such interest in the immoveable property
can become land lord of the property subject to the lessee's election.
The expression "any of his interest therein" contained in Section 109
of the Transfer of Property Act means those interest which the lessor
was entitled to transfer after execution of the first lease existing on the
same property. Once a lease has been executed and the lessee has
acquired a right to enjoy the property, the land lord cannot have any
such right further; the only right that he is entitled to transfer at that
point of time is the then existing right of a lessor. It is true that, even
during the subsistence of a lease the lessor can execute usufructuary
mortgage and by virtue of such mortgage, the mortgagee acquires a right
to step into the shoes of the lessor and would also acquire the right to
realise future rent or the right of reversion as against the existing first
lessee in terms of the provisions laid down in Section 58(d) of the
Transfer of Property Act.
58. In the matter of: Khaitan Consultants Limited vs. Sulata De & Ors.,
reported at (2015) 15 SCC 567 (supra), the Hon'ble Supreme Court had
observed:-
"1. Being aggrieved by the common judgment delivered in Sambhunath Mitra v. Khaitan
Consultant Ltd. by the High Court of Calcutta dated 1-4-2005, these appeals have been filed.
2. We have heard the learned counsel appearing for both sides at length. Upon hearing the
learned counsel for the parties, we are of the view that the High Court ought not be have
constrained one of the parties to amend the plaint. On this short ground, we are setting aside the
judgment delivered by the High Court.
3. It is directed that the appeals shall be restored to their original numbers and it would also be
open to the party concerned to seek permission to amend the plaint by making an appropriate
application before the High Court, if thought proper, and the High Court shall decide the
application in accordance with law".
59. Only to the extent stated above, the judgment of a coordinate bench of this
court In the matter of: Sambhu Nath Mitra vs. Khaitan Consultant Limited
(supra) was set aside and the concerned party was granted liberty to seek
permission to amend the plaint before this Court. Thus, the ratio decidenti
except to the extent as observed by the Hon'ble Supreme Court mentioned
above, still is a good law and holds the field on the issue of concurrent
lease.
60. In the matter of: Sambhu Nath Mitra (supra) a coordinate bench of this court
had observed as follows:-
"33. Therefore, we are of the view that the lessor can create a third party's interest in the
leasehold property either by creating sale deed of exchange conveying lessor's right or making
gift or creating mortgage but having himself divested of the right of the enjoyment of the property
and reserving only lessor's right, the lessor cannot further create any lease. Lease is a peculiar
doctrine of separation of title and possession. On execution of a lease, the title remains with the
lessor but the possession goes to the lessee and once such document is executed, the lessor is
capable of only transferring his title to the property by executing deeds of the sale, exchange,
mortgage, or gift but cannot transfer the right of enjoyment over again as he is already divested of
such right at the time of creating the first lease. Therefore, we agree with the view taken in the
subsequent case of Swapan Kumar Dutta v. Dharam Chand Jaiswal reported 2002 (2) Cal HN
627 relied upon by Mr. Basu. We, consequently, find that Emerald Company Limited could not
create any Interest in favour of Khaitan Consultant Limited in the suit property by virtue of lease
deeds executed by it and such being the position, the Khaitan Consultant Ltd., the plaintiff, could
not file any suit for eviction of the alleged trespasser on the basis of right conferred by the lease
deeds executed in its favour.
34. It further appears from record that after the expiry of period mentioned in the first lease deed
of 1979, Emerald Company Ltd. executed another lease deed for five years and that too expired
and thereafter by merely writing a letter authorized the plaintiff to continue with the earlier
tenancy. Therefore, even assuming for the sake of argument, that by virtue of registered lease
any right was created in favour of plaintiff, such right could not continue after the expiry of the
period contained therein, unless a fresh lease deed was executed. It appears that in the second
lease deed, there is a specific clause that after the expiry of the terms of the lease deed namely,
April 30, 1989, the lessee will have no right. Such being the position, by mere writing a letter to
the lessee, fresh right in immovable property cannot be created. Although Mr. Mitra strenuously
contended that his client is entitled to the right created under the earlier registered deed by
invoking the principles of "holding over", in our view, even then, the aforesaid Privy Council
decision in the case of M.E. Moolla & Sons Limited, (AIR 1936 PC 230) will stand in his client's
way inasmuch as, the effect of a holding over under law being creation of a new monthly tenancy
and not continuation of the old tenancy, (See AIR 1949 FC 124: 1949 FCR 262, Kai Khurshroo
Bezoniee Capadia v. Bai Jerbal Hirjibhoy Warden) and such new tenancy being not brought into
existence by a registered deed, cannot convey a fresh right to realise future rent if we accept for
the sake of argument the contention of Mr. Mitra that the Privy Council in the aforesaid decision
merely stated that such right could be created by "any registered document" and that there is no
necessity of making deed of sale. Moreover, by the lease deeds, the lessee was authorized to file
suit for eviction of the existing tenants in accordance with law but no right was conferred upon
the plaintiff to file suit for eviction against a trespasser.
40. We, therefore, find that original tenancy of Prabhat Chandra De was continuing even after his
death and such tenancy has not been lawfully, terminated by the landlord, namely, Emerald
Company Limited. We have already pointed out that Khaitan Consultant Limited has not acquired
any right by virtue of the two lease deeds and even assuming for the sale of argument if they
acquired such right, after expiry of the second lease they cannot file a suit for eviction of a
trespasser as it has no right in the property".
61. It is the trite law that, even in absence of notice to quit against a monthly
tenant, the institution of an eviction suit is sufficient notice but the plaintiff
must have a right to sue. In the present case in view of the abatement of
the first suit, following the effect of abatement in terms of Rule 9 under
Order XXII of the code, after the abatement of the first suit no fresh suit
could be brought on the same cause of action. When a suit abates, a
substantive and valuable right is created in favour of the parties who can
take benefit of the same unless specifically set aside by the Court as
provided under the Code. Such a right cannot be taken away from a party
automatically. In other words, after the abatement of the said first suit in
the instant case, the status of the Mitras was required to be adjudicated
qua the Gooptus. The right of the Bando was also required to be
adjudicated on the strength of its 1978 instrument in the light of the
abatement of the said first suit. All these give rise to an important question
for adjudication after a detail fact finding enquiry qua the suit property.
Even if it is seen from an angle that the appellants being admittedly
inducted by the Mitras when the tenancy of the Mitras was in survival,
what could be the status of the appellants obstructionists qua the Bando
and whether the Bando could evict the obstructionist through the said
execution proceeding as a due process of law. This is also an important
question needs to be decided by the Executing Court after a detail fact
finding enquiry and by applying the law prevailing on the issue.
62. In the facts of this case the decree holder Bando contended that, the Bando
is a contractual tenant/lessee under the land lord Guptoos by virtue of the
said 1978 lease. By virtue of such contractual right they could maintain the
said second suit for the eviction of Mitras and accordingly they obtained an
eviction decree thereunder, which binds the appellants. Such contention of
the Bando needs to be adjudicated in the light of the discussion made in
the preceding paragraphs after conducting a detail fact finding enquiry. The
appellants were inducted in the suit property from time to time by the
Mitras and/or their successor-in-interest. Whether the appellants have any
independent right or not in view of the discussions made in the preceding
paragraphs are also required to be adjudicated upon on a detail fact finding
enquiry.
63. In the matter of: Biswanath Poddar (supra), there was no previous consent
of the land lord as also any intimation in writing in the manner prescribed
under the 1956 Rent Act by the tenant as well as sub-tenant within the
time stipulated thereunder, being a mandatory statutory requirement. As
such, in absence non compliance of such mandatory statutory requirement
under the act, no independent right had accrued in favour of the sub-
tenant and thus, the eviction decree against the tenant was held to be
binding on sub-tenant, in view of the provision of Sub-Section (3) to Section
13 of the 1956 Rent Act. The Hon'ble Supreme Court in this fact situation,
thought it fit not to go into the question of fraud, if any, was practised in
obtaining the eviction decree against the tenant. Such is not the case in the
facts and circumstances of the instant appeal, as a cloud had been casted
on the right of the decree holder Bando. Therefore, the ratio decided in this
judgment has no application in the facts of the instant case under appeal,
as against the appellants.
64. The facts as summarised above and the applicable legal provisions as
discussed above, it appears to this Court that, the adjudication with regard
to the right of the appellant was required a more detailed fact finding
enquiry, by holding a proper evidence action. In view of the amended
provisions of Order XXI Rules 97 to 103 of the Code, the extent and the
scope of investigation, which admittedly were summary in nature, prior to
such amendments, had continued to remain the same. However, the Court
should not be unmindful as to the nature and scope of the amendment
which had altered the status of the order passed by an Executing Court, in
exercise of its aforesaid powers to that of a decree and filing of separate suit
had been excluded. The decree again had been made appealable on the
same terms as in other decree stands. Rules 101 and 103 under Order XXI
of the Code confirm the force and impact of the decree and its
conclusiveness. It is also to be noted that, alteration of the language made
in the Rules under Order XXI of the Code clearly brings out the change in
the legislative intent. Pursuant to Rule 35 under Order XXI of the Code, it is
to be necessarily implied that the right, title and interest of an
obstructionist, who is not bound by the decree, would have to be
determined by the Court and possession can be directed to be delivered,
even by removing a party who was not impleaded in a suit, wherein the
decree was passed, if he is bound by such decree and refuses to vacate the
property. Furthermore, the expressions used in Rule 58 under Order XXI of
the Code, which substituted the 'investigation of claims and objections'
by 'adjudication of claims and objections' denotes the legislative intent
is to give a go-by with the summary nature of investigation as was
expressed prior to the amendment of the Rules. The expression
'adjudication' brings finality after conducting a detailed process of
adjudication, which necessarily involves production of evidence, oral and
documentary and upon a meaningful consideration thereof, and then the
application of mind by the Court. Similar linguistic alteration was made by
substitution of Sub Rule (2) to Rule 97 under Order XXI of the Code, by
bringing in the word 'adjudication' in place and stead of 'investigation'.
Pursuant to Rule 101 under Order XXI of the Code, the scope of
adjudication extends to all questions including the questions relating to
right, title or interest in the property arising amongst the parties to a
proceeding on an application under Rule 97 or Rule 99 and expressly
forfeited the right of filing a separate suit for determination of such
questions. Thus, the provisions laid down under Rules 97 to 101 under
Order XXI of the Code is a complete and a self contained Code by itself.
65. In the event where facts are complicated and require a complete
adjudication through a proper and detail fact finding enquiry, the
Executing Court has no option but to go for a detailed trial on evidence for
complete adjudication of right, title and interest of the obstructionist in a
property.
66. In view of the foregoing discussions and reasons, this Court if of the firm
view that, whether the appellants have or have no independent right as to
their occupation in the suit property, needs a detail adjudication upon
proper evidence action and in appreciation thereof. Accordingly the
impugned judgment and order dated August 16, 2018 passed in execution
case no. 146 of 2017 stands set aside and reversed. The respective
applications filed in the said execution case no. 146 of 2017 by the
individual appellants shall be adjudicated upon afresh on trial on evidence,
on their own merit.
67. The learned receiver already appointed by the executing Court shall remain
in symbolic possession of the suit property and the appellants shall
continue to pay their occupation charges at the rate at which they had paid
last to the Learned Receiver, as a temporary arrangement, till the time the
applications of the appellants are disposed of by the executing Court. The
Learned Receiver upon receipt of such occupation charges shall issue
necessary receipts in favour of the respective appellant occupants. It is,
however, made clear that payment of such occupational charge is a
temporary arrangement and shall not create any right or equity in favour of
the appellants in any manner whatsoever. Such occupational charges must
be paid by the appellants to the Learned Receiver by seventh day of every
calendar month commencing from April 01, 2022. The Learned Receiver
shall open an account with any nationalised bank of to his choice and shall
deposit the said sum therein and shall furnish necessary statements for
every three months with the Registrar Original Side of this Court.
68. Since this Court had dealt with the principle contentions of the parties
which had gone into the roots of the matter, the other ancillary contentions
had not been addressed. However, the parties will be at liberty to urge all
their points and raise all their issues before the Executing Court.
69. The appeals mentioned in the cause title of this judgment and order,
preferred from the said impugned judgment and order dated August 16,
2018 stand allowed.
70. There shall, however, be, no order, as to costs.
(Aniruddha Roy, J.)
I. P. MUKERJI, J.:-
I have had the privilege of reading in draft the judgment proposed to be
delivered by my brother. I fully agree with the conclusions reached by his
lordship. I also agree in principle with the reasons advanced by him in
reaching them. Nevertheless, I am tempted to add a few observations of my
own.
Concurrent Lease
When a lessor grants a lease, he transfers to the lessee the right to enjoy
the demised property for a certain period of time on payment of rent or
other consideration periodically. The interest in the property which remains
with the lessor after grant of a lease, is the reversion. This reversion is
considered as immovable property (See Shree Narayan Mansingka vs.
Durgadas Mishra) (1951) 55 CWN 86 (Division Bench). This right in the
reversion is capable of transfer. The lessor may assign it to another person.
This transfer is also known as and is the same as concurrent lease. (See
Woodfalls Law of Landlord and Tenant, 27th Edition, Vol. I, Pg. 54.) On
assignment of the reversion, the assignee becomes entitled to the rent paid
to the lessor by the lessee and acquires the rights and the benefits of the
covenant between them. The assignee becomes an intermediate lessor
between the lessor and the lessee, for the entire term of the assignment
which may be shorter or greater than the term of the original lease.
This kind of a transfer is recognized in Section 109 of the Transfer of
Property Act, 1882 in the following terms:-
"109. Rights of lessor's transferee.--If the lessor transfers the
property leased, or any part thereof, or any part of his interest
therein, the transferee, in the absence of a contract to the contrary,
shall possess all the rights, and, if the lessee so elects, be subject
to all the liabilities of the lessor as to the property or part
transferred so long as he is the owner of it; but the lessor shall not,
by reason only of such transfer cease to be subject to any of the
liabilities imposed upon him by the lease, unless the lessee elects
to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent
due before the transfer, and that, if the lessee, not having reason
to believe that such transfer has been made, pays rent to the
lessor, the lessee shall not be liable to pay such rent over again to
the transferee.
The lessor, the transferee and the lessee may determine what
proportion of the premium or rent reserved by the lease is payable
in respect of the part transferred, and, in case they disagree, such
determination may be made by any Court having jurisdiction to
entertain a suit for the possession of the property leased."
Considering the nature of the interest transferred in a concurrent lease, the
Privy Council in M. E. Moola Sons, Limited vs. Official Assignee of the
High Court of Judicature at Rangoon and Ors. reported in AIR 1936 PC
230 held that this kind of a transfer being "a benefit to arise out of land"
was akin to a sale under Section 54 of the Transfer of Property Act, 1882
and required registration under the Indian Registration Act, 1908. Since
the document in that case was not so registered, it was held to be invalid.
In that context, the Division Bench judgment of our court in Prabhat
Kumar Paul vs. Shree Shree Lakshmi Janardan Thakur & Ors.
reported in (2008) 2 CHN 445 is to be seen. It held following the above
decision of the Privy Council and its earlier decision in Sambhunath Mitra
and Ors. vs. Khaitan Consultant Ltd. and Ors. reported in (2005) 2
CHN 519 that a concurrent lease or assignment of the reversion could only
be created by a registered instrument similar to a deed of sale under
Section 54 of the Transfer of Property Act, 1882.
It cannot be doubted that the relationship between the Gooptus and the
Mitras was that of landlord and tenant or lessor and lessee. It was a
monthly tenancy. It was sought to be put to an end by the Gooptus by the
notice to quit dated 12th August, 1953. Whether this had the effect of
determining the lease or tenancy or after this notice the Mitras continued
as statutory tenants cannot be answered because complete and conclusive
arguments were not made on this point.
The suit which the Gooptus instituted (Suit no.1059 of 1954) for eviction of
the Mitras, further to this notice, continued to remain in the file of the
court for several decades.
Now, it is possible that some of the appellants or their predecessors-in-
interest were inducted by the Mitras prior to 12th August, 1953. It is also
possible that some of them were inducted after that date.
On 6th February, 1978 the Gooptus executed and registered a concurrent
lease in favour of Bando and Company. Clause 1 of this registered
indenture of lease stated that the lessor "doth hereby demise unto the
lessee"........ "all rights, liberties, privileges and benefits" of the demised
premises. Prima facie, this grant or disposition for 99 years, in my opinion,
satisfied the requirement of Section 54 of the Transfer of Property Act.
On 20th May, 1983 this court declared that the 1954 suit had abated. In
what way the Mitras continued from 1954 to 1983 is not proved. Whether they
continue as trespassers after determination of their lease or as statutory
tenants or had abandoned their tenancy is not clear from the evidence.
On 20th May, 1983 this court by an order recorded abatement of the first
suit (Suit No. 1059 of 1954). Now, on abatement of the suit all rights of the
Gooptus arising out of the notice to quit dated 12th August, 1953 appears
to have been extinguished, as no fresh suit on that cause of action could be
filed.
Very astonishingly, Bando and Co., as assignee of the reversionary interest
of the Gooptus or as concurrent lessee on 25th July, 1984 instituted a suit
against the Mitras claiming inter alia a declaration that the tenancy created
by Deba Prasad Gooptu in favour of Prafulla Kumar Mitra "has duly been
determined and/or being terminated and the said are binding upon the
heirs of Prafulla Kumar Mitra."
Bando & Co. in the second suit founded their cause of action on the notice
to quit dated 12th August, 1953. By abatement of the first suit it became a
dead letter. Still the Bandos contended in the plaint in that suit that the
lease of the Mitras stood determined. Prima facie, it is on the face of it a
farfetched case.
Prima facie, the subsequent developments that took place in the suit, is a
perfect example of a collusive suit, if not at the time of institution but
certainly at a later point of time.
On 3rd May, 2017 the lessor and lessee obtained a consent decree on the
basis of a terms of settlement whereunder the Mitras would deliver up
vacant and peaceful possession to Bando. Bando would be entitled to evict
"the persons in possession and occupation through her or her
predecessors-in interest (Mitras) by executing a decree to be passed."
Promptly, on 5th June, 2017 an execution application was filed (EC No. 146
of 2017) for eviction of the appellants on the ground that they were sub-
tenants under the Mitras.
The net result of all this is that the subject premises has a lot of occupiers.
They may have been occupying the premises as tenants, subtenants,
trespassers or licensees or simply as occupiers for a very long time. There
is, however, no assertion by any occupier of title by adverse possession. The
appellants have questioned the title of Bando & Co. to the property on the
ground that the "concurrent lease" in their favour by the Gooptus was non-
est and did not convey any title or interest in the property. They claim to be
sub-lessees under the Mitras. Just because an occupier asserts himself to
be a sub-lessee under the Mitras does not make him so. Let me give my
reason. The lease of the Mitras should have been subsisting for induction of
a sub-tenant. If the lease stood determined by the notice to quit of 1953,
the Mitras became trespassers. The persons inducted by the Mitras after
such termination may not have qualified as sub-lessees. If they were not
sub-lessees they could not have been bound by the decree against the
Mitras. To evict an occupier a paramount title holder has to take recourse
to the due procedure of law recognized under Section 6 of the Specific Relief
Act, 1963. Only sub-lessees can be evicted without making them a party to
the suit, in execution of a decree for eviction by the lessor against the
lessee. Otherwise, the decree against the lessee does not bind any other
party. Another possibility is that the appellants were sub-lessees under the
Mitras and were bound by the decree of eviction against the lessees.
There is another issue.
In Rupchand Gupta vs. Raghuvanshi (Private) Ltd. and Anr. reported in
AIR 1964 SC 1889, the point arose whether the sub-lessee could be
evicted by virtue of a decree against the lessee for eviction in a suit between
the lessor and the lessee, when the suit was not properly defended because
of collusion or fraud between the lessor and the lessee. The Supreme Court
opined that collusion had to be established to resist the decree so as to
make it not binding on the sub-lessee. Short of that, even if the decree was
made ex-parte against the lessee, the sub-lessee was bound by it. The
following passages from that judgment are important and are set out
below:-
"9. One of the simplest definitions of collusion was given by Mr.
Justice Bucknill in Scott v. Scott. "Collusion may be defined", said the
learned Judge, "as an improper act done or an improper refraining
from doing an act, for a dishonest purpose". Substantially the same
idea is expressed in the definition given by Whatron's Law Lexicon,
14th Edn., p. 212, viz. "Collusion in judicial proceedings is a secret
arrangement between two persons that the one should institute a suit
against the other in order to obtain the decision of a judicial tribunal
for some sinister purpose". This definition of collusion was approved
by the Court in Nagubai Ammal v. B. Shamma Rao.
10. Thus the mere fact that the defendant agrees with the plaintiff
that if a suit is brought he would not defend it, would not necessarily
prove collusion. It is only if this agreement is done improperly in the
sense that a dishonest purpose is intended to be achieved that they
can be said to have colluded.
12. Taking the last action first viz. Raghuvanshi's omission to
implead the appellant, it is quite clear that 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 lessee and does not implead the sub-
lessee as a party to the suit, the object of the 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 sub-lease. The law allows
this and so the omission cannot be said to be an improper act."
In Burmah Shell Oil Distributing Now known as Bharat Petroleum
Corporation Ltd. vs. Khaja Midhat Noor and Ors. reported in AIR 1988
SC 1470, the Supreme Court remarked that when a valid notice of
termination of the lease was issued to the lessee, there was no need to give
a fresh notice to the sub-lessee. It also reaffirmed the dicta pronounced by
the court in Rupchand Gupta vs. Raghuvanshi (Private) Ltd. and Anr.
reported in AIR 1964 SC 1889.
Applying the above dicta to the facts of this case, another important fact
needs to be established at the trial. It is whether the decree of 3rd May,
2017 was obtained by collusion between the Bandos and the Mitras. Unless
the Bandos are able to clear themselves of this allegation or suspicion, they
cannot use the decree to evict the appellants from the premises, even if they
are considered as sub-lessees.
Furthermore, Section 115 of the Transfer of Property Act conceptualizes a
situation when the lessor and lessee enter into an agreement for surrender
of the lease by the lessee to the lessor. In that event, the sub-lessee is
conferred a right to pay rent to the lessor, thereby becoming a direct tenant
under the lessor. Now, a consent decree is nothing but an agreement
between the parties which receives the sanction of the court under Order
23 Rule 3 of the Code of Civil Procedure. It is not a decree as defined by
Section 2(2) of the Code of Civil Procedure which is "the formal expression
of adjudication."
(see Ruby Sales and Services (P) Ltd. & Anr Vs. State of Maharashtra &
Ors. reported in (1994) 1 SCC 531) and (Baldevdas Shivlal & Anr. Vs.
Filmistan Distributors (India) Pvt. Ltd. & Ors. reported in (1969) 2 SCC
201).
Ordinarily, a decree against the lessee binds the sub-lessee. With the lessee
the sub-lessees may be evicted. Was the 3rd May, 2017 decree more of a
surrender by agreement described in Section 115 of the Transfer of
Property Act than a decree in the true sense? If the answer is in the
affirmative, even if the appellants are considered to be sub-tenants, they
are not bound by that decree. To answer this question, both questions of
fact and law need to be gone into by the court.
The proceedings before the court below were under Order 21 Rules 97 to
103 of the Code of Civil Procedure. Order 21 Rule 101 provides that all
questions "relating to right, title or interest in the property between the
parties" in such a proceeding shall be dealt with by the court. It is not to be
decided in a separate suit. The court would be deemed to have jurisdiction
to decide the issues. Under Rule 103 such orders are to be treated as
decrees.
The right, title and interest of the appellants in the property have to be
decided on a case to case basis. While deciding this right all the issues
discussed above have to be determined by the court. If we were to relegate
the parties to the ordinary remedy of institution of a suit to determine the
questions involved, it could result in a multiplicity of proceedings before the
court. After so many years of litigation, this proceeding would neither be
practicable nor sub-serve the ends of justice. I am of the opinion that the
status of each of the appellants should be decided through trial on evidence
in the Order 21 Rules 97 to 103 proceeding in this court by admission and
consideration of substantial evidence and legal arguments on all the above
issues.
The right, title and interest of the appellants are to be decided de novo by
the learned trial judge in the above proceedings under Order 21 Rules 97 to
103 of the Civil Procedure Code. After trial on evidence and hearing of legal
arguments, a decree is to be pronounced against each of the appellants.
The decree dated 3rd May, 2017 is inexecutable against each of the
appellants. It is set aside. The learned single judge is requested to dispose
of the Order 21 Rules 97 to 103 proceedings as early as possible.
Urgent certified copy of this judgment, if applied for, be given to the
appearing parties as expeditiously as possible upon compliance with all the
necessary formalities.
(I. P. Mukerji, J.)
