Calcutta High Court (Appellete Side)
Smt. Sandhya Rajak & Ors vs Sri Ghanashyam Rajak on 21 March, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Partha Sarathi Chatterjee
FA 44 of 2023
FAT 54 of 2016
Smt. Sandhya Rajak & Ors.
versus
Sri Ghanashyam Rajak
For the Appellants : Mr. Dibyajyoti Raha,
Mr. Apurba Kumar Dutta.
Hearing is concluded on : 22nd February, 2023.
Judgment On : 21st March, 2023.
Partha Sarathi Chatterjee, J.
1. The challenge in the present appeal is against the order and/or
decree dated 28.9.2015 passed by the learned Civil Judge, Senior Division,
2nd Court, Asansol in T.S. no. 1137 of 2014 whereby the suit has been
dismissed ex parte.
2. One Sandhya Rajak and her two sons, all being legal heirs of one
Raj Narayan Rajak (in short, Raj Narayan), since deceased filed one suit for
partition, which was registered as T.S. no. 1137 of 2014, against one
Ghanashyam Rajak contending, inter alia, that the suit property originally
belonged to one Kamala Devi, who transferred the same in favour of Smt.
Charanjit Kaur by virtue of one registered deed of permanent lease vide.no.
2363 of 1982.
3. Raj Narayan and Ghanashyam were the tenants under Kamala Devi
and they used to conduct a laundry-business jointly in the suit premises
and subsequently they became bona fide tenants under Charanjit and later
Charanjit transferred the suit property in favour of Raj Narayan and
Ghanashyam by executing two separate deeds of sale vide. Nos. 728 dated
14.2.1984 and 723 dated 9.2.1984 and it was claimed that Raj Narayan and
Ghanashyam constructed first floor on the suit premises from the joint fund
of laundry-business.
4. Raj Narayan died on 18.8.2007 leaving behind Sandhya as his
widow and two sons, namely, Sanjeet and Surjet (hereinafter referred to as
the plaintiffs) and it was asserted that the plaintiffs are joint owners of the
suit property and laundry-business to the extent of half share thereof and
the defendant, who used to share 50% profit of the business with the
plaintiffs, suddenly stopped paying the same and on 31.7.2014 by issuing
one letter, the plaintiffs demanded partition of the suit property by metes
and bound and half share of that business but on 4.8.2014, the defendant
refused to share the profit of that business and also refused to make
partition of the suit property and hence, plaintiffs were constrained to
institute the suit praying for partition and separate possession of the suit
property and accounts of the business.
5. Records reveal that the Ghanashyam entered his appearance and
prayed for accommodation to file written statement but thereafter, he did
not take any step and hence, the suit was fixed for ex parte hearing.
6. In corroboration of the facts epitomized in the plaint, the plaintiffs
adduced oral testimony of Sanjeet and plaintiffs tendered deeds of sale vide.
Nos. 728 of 1984 and 723 of 1984, certified copy of the deed vide. No. 2363
of 1982, Municipal Tax Receipts and two rent receipts, marked as Ext. 1 to 5
series respectively.
7. Upon perusal of pleading and upon appreciation of evidence
brought on record by the plaintiffs, learned Court below dismissed the suit
ex parte, holding, inter alia, that Charanjit was a lessee and she had no right
to sell the suit property and plaintiffs could not produce any document
relating to joint laundry-business. Aggrieved thereby, plaintiffs have
preferred the present appeal.
8. None appeared to represent the respondent and consequently, the
appeal was taken up for hearing in absence of the respondent.
9. Drawing our attention to clause 2(iii) of the deed of lease vide. No.
2363 dated 31.3.1982, Mr. Raha learned advocate, appearing for the
plaintiffs/appellants (in short, the appellants) submits that Charanjit had
been empowered to 'part with possession' and being so empowered,
Charanjit sold out the suit property to the predecessor of the plaintiff and to
the defendant/respondent (in short, respondent) by two different deeds and
suit property is still joint and there is no impediment in directing partition of
the suit property. He further submits that even the Court can direct
partition of lease-hold property. In support of such contention, he placed
reliance upon the judgments delivered in the cases of Rajani Mohan Saha &
Ors. -vs- Sambhu Nath Saha & Ors. reported in AIR 1929 Cal 710 and
Raghuram Rao & Ors. -vs- Eric P. Mathias & Ors. reported in AIR 2002 SC
797.
10. From Ext.-3 it transpires that Kamala Devi acquired the suit
property by dint of one registered deed of gift being no. 3381 of 1940
executed by one Nathmal Marwari and then by executing one registered
deed of lease vide. No. 2362 dated 31.3.1982 leased out the suit property to
one Charanjit Kaur for a period of 999 years with a stipulation that at the
expiration of term of lease, the lessee shall deliver possession of the property
in it's the then state to the lessor and lessee was authorised to transfer
leasehold interest, to underlet or otherwise part with the possession of the
leasehold property.
11. Charanjit by executing two deeds of sale vide. No. 728 dated
14.2.1984 and No. 723 dated 9.2.1984 transferred 1 chitak, 42 ½ sq.fts. to
Raj Narayan and 1 chitak 42 sq.ft. to Ghanashyam from plot no. 356.
Charanjit executed such deeds in 1984 and put both Ghanashyam and Raj
Narayan into possession and they have improved the portion let out to them
and Ghanashyam and plaintiffs are in possession of the suit property for
more than 38 years.
12. Well-recognised proposition of law is that no one can convey a
better title than he himself has in the property. This principle is based on a
maxim, 'nemo dat quod non habet' which means no one gives what he does
not possess. It needs no emphasis that the successor will not have better
title that what his predecessor had.
13. Scope of the right of ownership lies in, i) possession, ii) enjoyment
& iii) disposition. A lease is the transfer of a right to possess and enjoy the
property. Transfer of interest in the property is distinct and different from
transfer of ownership. Indisputably, Charanjit was a lessee and she was
given right to possess and enjoy the property and hence, Charanjit cannot
transfer ownership of the suit property or any portion thereof. Charanjit was
authorised to transfer leasehold interest or to under-let. Charanjit cannot be
treated as 'ostensible owner' since in the recital of the deeds she had
admitted that she took lease of suit property for 999 years. The clause
'parting with possession' envisages not in the context of sale, transfer and
assigning but in the case of sub-letting in the case at hand. Consequently,
the transfers made by Charanjit shall be transfers of leasehold interest and
such act is an act of creation of sub-lease only and parties hereto, who have
been put in possession, are to be treated as sub-lessees only. It is trite that
to construe one instrument, it is not the nomenclature but the substance
thereof that needs to be looked into. Charanjit herself admitted to be a
lessee having power to underlet and hence, deeds executed by Charanjit can
only be construed to be deeds of transfer of leasehold interest only. Such
transfer is not barred under section 6 of Transfer of Property Act, 1882 if the
deed of lease empowered the lessee to make such transfer.
14. It is axiomatic that absolute demise by sub-lease for the unexpired
residue of the term operates not as an assignment of the term but only as a
sub-lease. It is well settled that several lessees can seek partition inter se
which is usually made for convenience of enjoyment of leasehold and such
partition does not in any way affect the integrity of the tenancy, if the
tenancy is joint-tenancy. Undoubtedly, lessees may be joint tenants and
tenants-in-common also. [See the judgment delivered in the cases of Rajani
Mohan Saha (supra) and Badri Narain Jha & Ors. -vs- Rameshwar Dayal
Singh & Ors. reported in AIR 1951 SC 186].
15. By executing two instruments, Charanjit transferred her right to
Raj Narayan and Ghanashyam and accordingly, status of Raj Narayan and
Ghanashyam would be not like joint-tenants but like tenants-in-common
and partition sought for by them would be the partition for convenience of
enjoyment of leasehold interest in respect of the suit property and such
partition, if made, shall not have the effect of declaration of the title and/or
ownership in respect of the suit property. The plaintiffs could not bring any
scrap of paper relating to joint laundry-business.
16. Charanjit took lease of 7 dec. of homestead land comprising of two
plots namely, R.S. 355 and 356 measuring the areas of 2 dec. and 5 dec.
respectively and it shall be deemed that out of R.S. plot no. 356, Charanjit
transferred lease hold interest in respect of one chitak 42 ½ sq. fts. in favour
of Rajnarayan and one chitak 42 sq. ft to Ghanashyam from plot no. 356.
17. In conclusion, the appeal is allowed and the judgment and decree
impugned herein are set aside.
18. It is hereby declared and decreed that the plaintiffs being the legal
heirs of Raj Narayan have the lease-hold interest in respect of one chitak
42 ½ sq.fts. in R. S. plot no. 356 whereas the respondent, Ghanashyam has
lease hold interest in respect of 1 chitak 42 sq.ft. in R.S. plot no. 356.
19. Parties hereto are directed to make amicable settlement of suit
property within two months from date, failing which they shall approach the
learned Court below to get such lease hold properties of the parties
partitioned, in accordance with law for the convenience of enjoyment of the
lease hold properties by the parties hereto.
20. With these observation and order, the appeal is thus, disposed of,
however, without any order as to the costs.
21. Let a decree be drawn up, accordingly.
22. Let a copy of this judgment along with LCR be sent down to the
learned Court below forthwith.
23. Urgent Photostat copy of this judgment, if applied for, shall be
granted to the parties as expeditiously as possible, upon compliance of all
formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
