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High Court Of Calcutta
G. N. RAY, SANKARI PRASAD DAS GHOSH
NURUL HUDA - Appellant
Versus
HIRA BASU - Respondent
A. F. O. D. 15 Of 1983
Decided On : 04/03/1985
EVICTION - LEASE - DETERMINATION BY EFFLUX OF TIME - SUB-TENANTS - LIABILITY TO PAY RENT TO HEAD LESSOR - PRIVITY OF CONTRACT OR ESTATE - REALISATION OF RENT BY HEAD LESSOR FROM SUB-TENANTS - EFFECT - DECREE FOR EVICTION AGAINST LESSEES AND SUB-TENANTS - VALIDITY.
Fact of the Case:
The plaintiff, the owner of the premises No. 83, Rafi Ahmed Kidwai Road, Calcutta, leased the back portion of the premises to Haji Ansarullah for a period of 21 years commencing from 1st September, 1959. After the death of Haji Ansarullah, his heirs, defendants Nos. 1 and 2, became the joint lessees. The plaintiff instituted a suit for eviction of the defendants from the premises on the ground that the lease stood forfeited due to breaches of covenants by the lessees. The plaintiff also claimed that the lease had come to an end by efflux of time on 1st September, 1980. The defendants Nos. 3 to 14, who were sub-tenants, were impleaded in the suit to avoid any future complications and to avoid further litigation.
Finding of the Court:
The trial court decreed the suit for eviction against all the defendants, including the sub-tenants, defendants Nos. 3 to 14. The sub-tenants appealed against the decree.
Issues: 1. Whether the lessees had committed breaches of covenants in the lease deed dated 12-8-59? 2. Whether the plaintiff was entitled to re-entry to the premises and recover possession from the defendants? 3. Whether the registered deed of lease dated 12-8-59 made between Ranjit Kumar Basu and Haji Ansarullah for a period of twenty-one years commencing from 1-9-59 in respect of the suit premises had been determined by efflux of time? 4. If so, whether the plaintiff was entitled to get a decree for recovery of khas possession of the suit premises?
Ratio Decidendi: 1. The court held that the defendants Nos. 3 to 14, being sub-tenants, could not be held to be the assignees of the lessees, defendants Nos. 1 and 2, under the lease deed. There was no privity of contract or privity of estate between a sub-tenant and the head lessor by which there was any obligation of a sub-tenant to pay rent to the head lessor. 2. However, the court found that the plaintiff had realized rents from seven sub-tenants for a few months between April, 1964 to June, 1964 not by treating the said sub-tenants as per direct tenants but such realization of rent from them was made at the instance of her lessees namely the defendants Nos. 1 and 2 to liquidate the arrears of rent payable by such lessees to the plaintiff. 3. The court also found that the defendants Nos. 3 to 14 had specifically admitted in their written statement that they were the tenants under the lessees of the plaintiff, and there was no occasion for them to give any evidence contrary to such specific pleading.
Final Decision: The court dismissed the appeal and upheld the decree for eviction passed by the trial court against all the defendants, including the sub-tenants, defendants Nos. 3 to 14.
( 1 ) THIS appeal arises out of judgment and decree passed by the learned Judge, 4th Bench, City Civil Court, Calcutta in Title Suit No. 1412 of 1978. By the aforesaid judgment a decree has been passed for eviction of all the defendants impleaded in the said Title Suit. The defendants Nos. 3 to 14 have preferred the instant appeal impleading the plaintiff as respondent No. 1 and defendants Nos. 1 and 2 as pro forma respondents Nos. 2 and 3. The said Title Suit was instituted by the plaintiff respondent No. 1 for eviction of the defendants from the disputed premises being the back portion of 83, Rafi Ahmed Kidwai Road, Calcutta containing 18 rooms more fully described at schedule to the plaint. The case of the plaintiff appellant No. 1 is inter alia that one Ranjit Kumar Bose since deceased was the owner of the entire premises No. 83, Rafi Ahmed Kidwai Road, Calcutta and the said Ranjit Kumar Bose died on 30th June, 1968 after executing a Will whereby he bequeathed the entire property to his wife, viz. , the plaintiff and the said plaintiff was also appointed as sole executrix by the said Will.
( 2 ) THE plaintiff applied for probate of the said Will in this Court and the said Will was duly probated by this Court and the plaintiff was appointed as sole executrix of the said will to the estate of deceased Ranjit Kumar Basu. By an indenture of lease dated 12th Aug. , 1959 entered into between the said Ranjit Kumar Basu and one Haji Ansarullah, the said Ranjit Kumar Basu had demised the back portion of the said premises No. 83, Rafi Ahmed Kidwai Road, as described in the schedule to the plaint to the said Haji Ansarullah for a period of 21 years commencing from 1st Sept. , 1959 at a rental of Rs. 211/- per month payable according to English Calendar on the terms and conditions contained in the said indenture of lease dated 12th August, 1959. A copy of the said lease was annexed to the plaint being Annexure 'a'. The plaintiff's further case is after the death of Haji Ansarullah, the defendants Nos. 1 and 2 became his heirs and legal representatives and as such became joint lessees under the plaintiff on the terms and conditions contained in the said indenture of lease. The lessees had committed various breaches of covenants and the plaintiff has set out instances of such breach of covenants in various clauses under paragraph 6 of the plaint. The plaintiff has contended that in view of the said breaches committed by the said defendants Nos. 1 and 2 viz. , heirs of Hazi Ansarullah the said lease stood forfeited and the plaintiff got the right of re-entry to the premises and to recover the same from the possession of the defendants. It is also case of the plaintiff that the plaintiff determined the said lease by a registered notice sent through her Advocate calling upon the said defendants Nos. 1 and 2 to quit, vacate and deliver up the vacant and peaceful possession of the said premises on expiry of last date of Sept. , 1977. A copy of the said notice dated 10th August, 1977 has been annexed to the plaint being Annexure 'b'. The plaintiff has also contended that in spite of such termination of lease, the defendants Nos. 1 and 2 have failed and neglected to deliver the vacant possession of the said premises and they are continuing as trespassers in the said premises. It has also been stated by the plaintiff that defendants Nos. 3 to 14 are the sub-tenants and they have been impleaded in the suit in order to avoid any future complicity of the proceedings and to avoid further litigation. It appears that the plaint was subsequently amended by incorporating para 8a to the plaint wherein it has been stated that the said registered lease dated 12th August, 1959 made between lessor Ranjit Kumar Basu since deceased and the said lessee Haji Ansarulla for a period of 21 years commencing from 1st day of Sept. , 1959 has been determined and has come to an end by efflux of time on the first day of Sept. , 1980 and as such neither t
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