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High Court Of Calcutta
Bhaskar Bhattacharya
SWAPAN KUMAR DUTTA - Appellant
Versus
DHARAM CHAND JAISWAL - Respondent
C. O. 2654 Of 2001
Decided On : 04/08/2002
SUBSTITUTION OF PLAINTIFF - TRANSFER OF PROPERTY ACT - SECTION 54, 107, 109 - TRANSFER OF LEASEHOLD INTEREST - CREATION OF CONCURRENT LEASE - APPLICABILITY OF DOCTRINE OF CONCURRENT LEASE IN INDIA - INTERPRETATION OF SECTION 109 OF THE TRANSFER OF PROPERTY ACT - WHETHER A LESSOR CAN CREATE A FURTHER LEASE OVER A PROPERTY ALREADY SUBJECT TO A LEASE - HELD, NO.
Fact of the Case:
The petitioner filed an application under Order 22 Rule 10 of the Code of Civil Procedure to be substituted as plaintiff in place of the opposite party No. 2 in an ejectment suit. The petitioner claimed that he had become the landlord of the opposite party No. 1 by virtue of a lease executed in his favor by the opposite party No. 2. The opposite party No. 1 opposed the application, contending that the lease deed did not authorize the petitioner to realize rent or sue for ejectment.
Finding of the Court:
The court held that the petitioner could not be substituted as plaintiff because the lease deed executed in his favor did not confer any right upon him to be substituted as plaintiff. The court found that the doctrine of concurrent lease, which allows a landlord to create a second lease over a property already subject to a lease, is not applicable in India in view of the specific provisions contained in the Transfer of Property Act.
Issues: 1. Whether a subsequent deed of lease executed by a landlord in respect of the tenanted property in favor of a third party can warrant the subsequent lessee to be impleaded as plaintiff in a pending suit for eviction. 2. Whether the doctrine of concurrent lease is applicable in India in view of the specific provisions contained in the Transfer of Property Act.
Ratio Decidendi: 1. The court held that a subsequent deed of lease executed by a landlord in respect of the tenanted property in favor of a third party cannot warrant the subsequent lessee to be impleaded as plaintiff in a pending suit for eviction. 2. The court held that the doctrine of concurrent lease is not applicable in India in view of the specific provisions contained in the Transfer of Property Act. The court found that Section 54 of the Transfer of Property Act requires that a transfer of a right to future rent and profit from immovable property must be effected in accordance with the provisions contained in Section 54 of the Transfer of Property Act, meaning "by sale". The court also found that Section 109 of the Transfer of Property Act, which allows a lessor to transfer "any of his interest therein", does not permit a lessor to execute a further lease deed over a property already subject to a lease.
Final Decision: The court dismissed the petitioner's revisional application.
( 1 ) THIS revisional application is at the instant of an application under Order 22 Rule 10 of the Code of Civil Procedure and is directed against order dated August 17, 2001 passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Misc. Appeal No. 10 of 2000 thereby affirming Order No. 15 dated July 4, 2000 passed by the learned Judge 6th Bench, Small Causes Court at Calcutta in Ejectment Suit No. 221 of 2000.
( 2 ) THE opposite party No. 2 brought against opposite party No. 1 a suit being Ejectment Suit No. 221 of 2000 for eviction on the grounds mentioned in section 13 (1) of the West Bengal Premises Tenancy Act.
( 3 ) DURING the pendency of such a suit the opposite party No. 2 executed a deed of lease for 25 years with further option for renewal in respect, of the properties including the subject matter of such Ejectment Suit No. 221 of 2000 in favour of the petitioner.
( 4 ) AFTER execution of such lease deed, the present petitioner filed an application under order 22 Rule 10 of the Code for being substituted as plaintiff in place of opposite party No. 2 and for permission to proceed with the said suit against opposite party No. 1.
( 5 ) THE aforesaid application was opposed by the opposite No. 1 contending that by virtue of a lease deed executed by the opposite party No. 2, the present petitioner cannot get title over the property and as such cannot be impleaded as plaintiff. In other words, the contention of the opposite party No. 1 was that by virtue of the lease deed executed by opposite party No. 2 in favour of the present petitioner, he has not become landlord of the opposite party No. 1 enabling the petitioner to proceed with the suit as plaintiff.
( 6 ) THE learned trial Judge by Order No. 15 dated July 4, 2000 accepted the contention of the opposite party No. 1 and thus rejected the application under Order 22 Rule 10 of the Code. Being dissatisfied, the petitioner preferred an appeal being Misc. Appeal No. 10 of 2000 and by the order impugned herein the said appellate court has affirmed the order passed by the learned Trial Judge. Being dissatisfied, the applicant under Order 22 Rule 10 of the Code has come up with the instant revisional application.
( 7 ) MR. Dey, the learned advocate appearing on behalf of the petitioner by placing strong reliance upon the decision of the Division Bench of this Court in the case of Shree Narayan. Mansingka vs. Durgadas Mishra and Ors. , contended that by virtue of the lease executed in favour of his client, he has become landlord of the opposite No. 1 and as such is entitled to proceed with the suit filed by the opposite party No. 2. Mr. Dey contends that this is a case of devolution of interest during the pendency of the suit and as such his client should be substituted in place of the opposite party No. 2.
( 8 ) THE aforesaid contention of Mr. Dey has been seriously disputed by Mr. Chatterjee appearing for the opposite party No. 1. According to Mr. Chatterjee the deed of lease executed by opposite party No. 2 does not authorize the petitioner even to realise rent from the opposite party No. l Mr. Chatterjee further contends that such deed of lease even does not empower the petitioner to evict the existing tenant of the property. Mr. Chatterjee submits that in the absence of any sanction by the opposite party No. 2 permitting the petitioner to realise rent or to sue for ejectment, it cannot be said that there has been devolution of interest in respect of the suit property. Mr. Chatterjee thus contends that the learned courts below rightly held that a mere deed of lease in favour of the petitioner in respect of the subject matter of the suit property cannot confer any right upon the petitioner to be substituted as plaintiff.
( 9 ) THE only question that arises for determination in this application is if a Subsequent deed of lease is executed by a landlord in respect of the tenanted property in favour of a third party, whether su
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