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High Court Of Calcutta
P. K. BANERJI, B. N. MAITRA
BAIDYANATH DUTTA - Appellant
Versus
RADHESHYAM DUTTA - Respondent
A. F. O. D. 28 Of 1973
Decided On : 04/26/1978
LANDLORD AND TENANT - Tenancy - Determination - Notice to quit - Validity - Interpretation of lease - Easement - Right of support - Grant - Construction of deed - Repugnant clauses - Applicability of Transfer of Property Act, Sections 8, 11 and 55 - Presidency Small Cause Courts Act, Section 19(g) - Jurisdiction to decide question of title.
Fact of the Case:
Plaintiff claimed tenancy rights over disputed land and structures, alleging a sale of the structure and a lease of the land with an option to renew. The defendant purchased the property and obtained an order for re-entry against a third party. The plaintiff filed a suit for declaration of tenancy right, injunction, and damages. The trial court decreed the suit in full.
Finding of the Court:
The High Court held that the plaintiff had no permanent right to the structures or the land. The sale deed and the lease were two independent documents, and the restrictive clause in the lease prevailed over the absolute interest created by the sale deed. There was no grant of an easement of support for the hut, and the principles of the Indian Easements Act did not apply. The notice to quit was valid, and the tenancy was duly determined. The Chief Judge of the Presidency Small Cause Court had jurisdiction to consider the question of title, as it was not the sole and only issue in the suit. The plaintiff's suit was dismissed.
Issues: 1. Whether the plaintiff had a permanent right to the structures or the land? 2. Whether there was a grant of an easement of support for the hut? 3. Whether the notice to quit was valid? 4. Whether the Chief Judge of the Presidency Small Cause Court had jurisdiction to consider the question of title?
Ratio Decidendi: 1. The sale deed and the lease were two independent documents, and the restrictive clause in the lease prevailed over the absolute interest created by the sale deed. 2. There was no grant of an easement of support for the hut, and the principles of the Indian Easements Act did not apply. 3. The notice to quit was valid, and the tenancy was duly determined. 4. The Chief Judge of the Presidency Small Cause Court had jurisdiction to consider the question of title, as it was not the sole and only issue in the suit.
Final Decision: The appeal was allowed, the judgment and decree of the trial court were set aside, and the plaintiff's suit was dismissed. The cross-objection was dismissed.
( 1 ) THE plaintiffs' case is that the disputed land along with the structures belonged to one Chamundi Charan Mukherjee. He died leaving his widow, Lakshimoni Debi and son, Bis-wanath Mukherjee. On the 15th of June 1938, Biswanath sold only the structure to one Sakhibala Dassi for Rs. 700/ by a registered kobala. On the same date he granted a lease of the land for 20 years at a monthly rental of Rs. 14/- with an pption to renew for S years more. Thereafter Sakhibala made herself scarce resulting in a presumption of death by the efflux of the statutory period, The plaintiff is the heir by her only daughter. The defendant purchased the property from Biswanath and obtained an order from the Thika Controller for re-entry against one Monimala Dassi. Then the present plaintiff instituted the Title Suit No. 197 of 1963 in the City Civil Court at Calcutta, for declaration of her tenancy right of the suit land and for injunction. That suit was decreed. Then the defendant filed the suit No. 3648 of 1968 under Section 41 of the Presidency Small Cause Courts Act and obtained an order for possession. It has been stated in the plaint that the plaintiff is a permanent tenant of the land and he has absolute right to maintain possession of the property. The suit is for permanent injunction, declaration of tenancy right, declaration of easement right, for a declaration that the order under Section 41 is illegal and recovery of damages.
( 2 ) THE defendants filed a written statement denying the plaintiff's allegation. It has been alleged, inter alia, that the suit is barred by res judicata and under Order 2, Rule 2 of the Civil P. C. The plaintiff has no tenancy right. The order for possession was validly passed in the suit under Section 41 of the Presidency Small Cause Courts Act and a valid notice to quit was served.
( 3 ) THE learned Judge of the City Civil Court decreed the suit in full, He stated under the Issues Nos. 1, 6 and 7 that the plaintiff was not entitled to claim any damages. He did not grant any relief regarding the prayer for easement. But still full costs were awarded in the plaintiff's favour. He also declared that the plaintiff was a tenant as held in Title Suit No. 197 of 1963. Being aggrieved by that decision the defendants preferred the present appeal.
( 4 ) IT has been contended on behalf of the appellants that suit is barred by the provisions of Order 2 Rule 2 of the Civil P. C. because the entire relief claimed in the present suit was available to the present plaintiff when he instituted the earlier suit in 1963. Since he omitted to do so he cannot ask for the present relief. The suit is also barred by the principles of res judicata. It has been stated that the kobala in question and the disputed lease were executed on the same date. The documents must be read together. In fact there was only one transaction. Reference has been made to Odger's Construction of Deeds and Statute, page 58, 5th Edition and Norton's Deeds at page 78. It has been contended that it was held in the Title Suit No. 197 of 1963 that the present plaintiff was holding over as a monthly tenant. That tenancy was duly determined by a notice to quit. So after determination of that tenancy, the plaintiff's suit should not have been decreed. It has been contended that the plaintiff has no right of easement. The case in AIR 1947 Cal 401 has been cited to show that the Small Causes Court could discuss the matter. Since under the lease the plaintiff has a right to remove the structure after the expiry period of lease, tha plaintiff must remove it. The suit is not tenable and the appeal should be allowed.
( 5 ) THE learned advocate appearing on behalf of the respondents has contended that the disputed kobala (Ext. 1) clearly shows that the sale was coupled with a grant for peaceful enjoyment of the hut transferred by that sale deed. The recitals in the document show that tha transferee shall be at liberty to enjoy the hut on payment of
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