Judgement

DAS GUPTA, J. : The subject-matter of this litigation is a piece of land in the heart of the business centre of the city of Calcutta. This was part of a block of 52 cottahs of land taken on lease on January 21, 1950 from the Official Trustee, West Bengal, by a private limited company, Raghuvanshi Private Ltd. The lease was a building lease for a period of 75 years commencing from January 21, 1950. The lessee was required to complete the construction of a three or four storeyed building on the land within 10 years. In September 1950, Raghuvanshi Private Limited in its turn leased 101 cottahs out of the 52 cottahs to a public limited company, Land and Bricks Ltd. This lease by Raghuvanshi Private Ltd., (hereinafter referred to as "Raghuvanshi") in favour of Land and Bricks Ltd., (hereinafter referred to as "Land and Bricks") created a monthly tenancy commencing from the 1st October 1950. Land and Bricks in this turn sub-let the entire 10 1/2 cottahs to the present appellant, Rupchand Gupta in his business name of Hind Airways. The lease was on the terms as settled by the two letters dated August 19, 1950 and September 5, 1950 between Hind Airways and Land and Bricks. By the terms of the sub-lease, the sub-lessee undertook not to sub-let the land to anybody, to vacate the land as soon as it was required by Land and Bricks for any purpose and not to construct anything on the land but only to use the open land for "garage purpose for motor vehicles."In spite of this undertaking however the appellant constructed a pacca structure on the land. Land and Bricks protested unsuccessfully and then started proceedings under the Calcutta Municipality Act for demolition of the structures. Those proceedings were also unseccessful. Land and Bricks, it appears, also served on the appellant in February 1953 a notice to quit. This was not followed up by any suit in court. But a suit for arrears for rent was instituted by Land and Bricks against the appellant in September 1955 and another in 1957. Consent decrees were passed in both of these suits. It appears that in about May or June 1954, Raghuvanshi was desirous of getting possession of the land it had leased to Land and Bricks. The difficulty was that Land and Bricks having sub-let to the appellant was not in a position to deliver possession to its lessor Raghuvanshi until and unless possession was obtained from the appellant. It was in these circumstances that Raghuvanshi determined its lease in favour of Land and Bricks by a notice to quit dated the 11th April 1955. Raghuvanshi then instituted a suit No. 3283 of 1955 in the High Court of Calcutta against Land and Bricks for possession of the land. The appellant was not impleaded in the suit and Land and Bricks did not contest it. An ex parte decree was made by the Court in favour of Raghuvanshi on the 11th May 1956.

2. The necessary legal consequence of that decree is that the plaintiff as the sublessee of Land and Bricks has no right to stay on the land and has become a trespasser. It is to avoid the consequence of that decree, that the present suit was brought by Rupchand Gupta. His case is that the decree had been obtained "by fraud and collusion between the defendants in order to injure the plaintiff and to evict the plaintiff from the said premises without any decree being passed against the plaintiff."Both Land and Bricks and Raghuvanshi have been impleaded in the suit - Land and Bricks as the first defendant, and Raghuvanshi as the second defendant. Both of them denied the allegations of fraud and collusion.

3. The case that the decree was obtained by fraud was given up at the hearing and only the allegation that it was a collusive suit was pressed.

4. The Trial Judge held that there was collusion between defendant No. 1 and defendant No. 2 in the matter of obtaining an exparte decree in suit No. 3283 of 1955 and that the plaintiff was not bond by that decree. He gave declaration that the plaintiff was still as tenant under defe