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High Court Of Calcutta
N. C. Mukherji, Sudhindra Mohan Guha
RAM KHILAN DAS - Appellant
Versus
RADHARANI DASI - Respondent
FA 531 Of 1973
Decided On : 02/06/1980
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13(2), SECTION 16 - SUB-TENANT - NOTICE - DIRECT TENANCY - BINDING DECREE - EJECTMENT - SUB-TENANT'S RIGHT - CONSTRUCTION OF STATUTE - REPEAL AND SAVINGS - SECTION 40(2)(B) - WEST BENGAL PREMISES RENT CONTROL (TEMPORARY PROVISIONS) ACT, 1950 - SECTION 12(1)(C), SECTION 13(1)(A), SECTION 13(2) - REPEAL - SAVINGS - RIGHT OF SUB-TENANT - VESTED RIGHT - MANDATORY PROVISION - SECTION 16(3) - FAILURE TO SERVE NOTICE - LEGAL CONSEQUENCES - INDEPENDENT RIGHT OF SUB-TENANT - BINDING DECREE - EJECTMENT - SUB-TENANT'S RIGHT - JUDGMENT-DEBTOR - REPRESENTATIVE - DECREE FOR EJECTMENT - BINDING EFFECT - INDEPENDENT RIGHT OF SUB-TENANT - POSSESSION OF SHOP ROOM - DECREE AND RELIEF.
Fact of the Case:
The plaintiff, Ram Khilan Das, filed a suit seeking a declaration that the decree passed in Ejectment Suit No. 79 of 1958 between Radharani Dasi v. Angurbala Dasi was not binding upon him nor executable against him and for permanent injunction. The plaintiff claimed that he was a direct tenant under the original owner, Mohanlal Dey, and that the decree against Angurbala, the tenant of the first degree, was not binding on him. The defendants, Radharani Dasi and Binapani Dasi, contended that the plaintiff was a sub-tenant under Angurbala and that he was bound by the decree against her as he had failed to serve notice of his sub-tenancy under Section 16 of the West Bengal Premises Tenancy Act, 1956.
Finding of the Court:
The court held that the plaintiff failed to establish that he was a direct tenant under Mohanlal Dey. The court also held that the plaintiff was a sub-tenant under Angurbala and that he was bound by the decree against her as he had failed to serve notice of his sub-tenancy under Section 16 of the West Bengal Premises Tenancy Act, 1956. However, the court held that the plaintiff had an independent right to be in possession of the shop room in suit as he was deemed to be a direct tenant under the defendants under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which was repealed by the West Bengal Premises Tenancy Act, 1956, but with a saving clause for rights and liabilities arising before the repeal.
Issues: 1. Whether the plaintiff was a direct tenant under the original owner, Mohanlal Dey? 2. Whether the decree against Angurbala, the tenant of the first degree, was binding on the plaintiff? 3. Whether the plaintiff was a sub-tenant under Angurbala and was bound by the decree against her as he had failed to serve notice of his sub-tenancy under Section 16 of the West Bengal Premises Tenancy Act, 1956? 4. Whether the plaintiff had an independent right to be in possession of the shop room in suit?
Ratio Decidendi: 1. The court held that the plaintiff failed to establish that he was a direct tenant under Mohanlal Dey based on the evidence presented and the lack of documentary evidence. 2. The court held that the decree against Angurbala was not binding on the plaintiff as he was deemed to be a direct tenant under the defendants under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which was repealed by the West Bengal Premises Tenancy Act, 1956, but with a saving clause for rights and liabilities arising before the repeal. 3. The court held that the plaintiff was a sub-tenant under Angurbala and that he was bound by the decree against her as he had failed to serve notice of his sub-tenancy under Section 16 of the West Bengal Premises Tenancy Act, 1956. However, the court also held that the plaintiff had an independent right to be in possession of the shop room in suit as he was deemed to be a direct tenant under the defendants under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. 4. The court held that the plaintiff had an independent right to be in possession of the shop room in suit as he was deemed to be a direct tenant under the defendants under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which was repealed by the West Bengal Premises Tenancy Act, 1956, but with a saving clause for rights and liabilities arising before the repeal.
Final Decision: The appeal was allowed, and the judgment and decree passed by the learned court below were set aside. The plaintiff's suit was decreed, and he was entitled to the reliefs sought for in terms of prayers made in (b) and (c) of the plaint.
( 1 ) THIS is an appeal by the plaintiff whose suit for a declaration that the decree passed in Ejectment Suit No. 79 of 1958 between Radharani Dasi v. Augurbala Dasi was not binding upon the plaintiff nor executable against him and for permanent injunction, was dismissed by the learned Court below.
( 2 ) THE case of the plaintiff was as follows :--The father of the plaintiff Late Chanchal Das was originally a tenant in respect of a shop room in the ground floor of premises No. 107a, Durga Charan Mitra Street, under the original owner Mohanlal Dey at a rental of Rs. 20/- per month and on his death in the year 1956 the plaintiff, who was only son inherited the tenancy of the shop room and had been carrying out coal business therein. The rent of the room was gradually increased up to Rs. 30/- per month with electric charges of Rs. 3/- per month. But in the year 1360 B. S. the entire suit premises with all the existing tenancies were leased out by Mohanlal Dey to defendant No. 3 Angurbala Dasi. On 20-9-1957 Mohanlal Dey transferred the entire suit premises by sale to the defendant No. 1 Radharani Dasi and defendant No. 2 Binapani Dasi along with the existing tenancies including the tenancy of the plaintiff. Defendants Nos. 1 and 2 instituted an ejectment Suit No. 79 of 1958 in the City Civil Court against the defendant No. 3 and obtained a decree on 9-9-1963. The plaintiff challenged the decree as nullity and not binding against him. The right of the plaintiff was said to be protected under the law and he could not be evicted in execution of that decree.
( 3 ) THUS, ejectment decree was put into execution by Ejectment Execution Case No. 360 of 1966 and the plaintiff lawfully resisted the Court's bailiff on his independent right. The defendants Nos. 1 and 2 however, filed an application under Order 21 Rule 97 C. P. Code against the plaintiff and other tenants. It was found by the Court that it was not possible to accept the plaintiff as a tenant under the original landlord Mohanlal Dey. Hence present suit.
( 4 ) THE defendants Nos. 1 and 2 contested the suit on a written statement. They denied that the father of the plaintiff was a tenant under Mohanlal Dey and they also denied that the plaintiff was the only son of his father. Their case was that on 20-9-1957 they purchased the premises No. 107a, Durga Charan Mitra Street, Calcutta, with the only tenant Angurbala Dasi in respect of the entire premises at a rental of Rs. 200/- per month. On determination of tenancy they brought a suit for ejectment against Angurbala. It was further contended that from the documents filed in Misc. Case No. 137 of 1968 it transpired for the first time that the plaintiff's father Chanchal Das was a Sub-tenant under Kali Dassi, the sister and predecessor in title of Angurbala, who was the judgment-debtor in the ejectment decree. The plaintiff being a Sub-tenant was said to be bound by the decree passed in the ejectment suit, according to the provisions of the West Bengal Premises Tenancy Act, 1956.
( 5 ) THE learned Judge on trial held that the plaintiff miserably failed to establish that he was a direct tenant under Mohanlal Dey, the original owner of the premises. The plaintiff's next case is that he was governed by the Act of 1950 and even if he be taken to be a Sub-tenant, he would be deemed to be a direct tenant under Sub-section (2) of Section 13 of the Act of 1950. The plaintiff's such contention was also overruled by the learned Court below on the ground that the plaintiff had failed to notify of such sub-tenancy under Section 16 of the West Bengal Premises Tenancy Act, 1956. Accordingly, the suit was dismissed.
( 6 ) BEING aggrieved by the said judgment and decree the plaintiff has come up in appeal.
( 7 ) MR. Santosh Nath Sen, the learned Advocate for the appellant contends at the outset that the learned Court below fell into an error in rejecting the plaintiff's contention that he was a direct tenant under Mo
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