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High Court Of Calcutta
R. BHATTACHARYYA, MANOJ KUMAR MUKHERJI
CHHAGAN LAL - Appellant
Versus
THE INDIAN IRON AND STEEL CO.LTD. - Respondent
Second Appeal 1271 Of 1966
Decided On : 11/16/1978
LANDLORD AND TENANT - NON-AGRICULTURAL TENANCY - EVICTION - EXECUTION OF DECREE - WEST BENGAL NON-AGRICULTURAL TENANCY ACT, 1949, SECTION 70 - CIVIL PROCEDURE CODE, 1908, ORDER 21, RULES 35 AND 36 - LIMITATION ACT, 1908, ARTICLE 182 - RELATIONSHIP OF LANDLORD AND TENANT - EXECUTION OF DECREE - DELIVERY OF POSSESSION - SYMBOLICAL POSSESSION - SEPARATE SUIT FOR RELIEF UNDER DECREE - BARRED BY LIMITATION - DECREE HOLDER'S DUTY TO FOLLOW UP DECREE AND OBTAIN RELIEF - ABUSE OF PROCESS.
Fact of the Case:
The plaintiff, an iron and steel company, filed a suit against a non-agricultural tenant, Mahammadin Brothers, for recovery of khas possession of the disputed land. A preliminary decree was passed in favor of the plaintiff, directing the tenant to vacate the premises upon payment of compensation for the structures on the land. The plaintiff deposited the compensation as determined by the court and a final decree was passed. However, the plaintiff did not execute the decree within the limitation period prescribed by the Limitation Act, 1908. Subsequently, the plaintiff filed a fresh suit against the principal defendant, Chhaganlal, who was a tenant under Mahammadin Brothers, and his sub-tenants, claiming declaration of title, recovery of possession, and arrears of rent.
Finding of the Court:
The trial court dismissed the plaintiff's suit, holding that the plaintiff did not take delivery of possession of the suit premises after the passing of the final decree and that the suit was barred by Section 70 of the West Bengal Non-Agricultural Tenancy Act, 1949. The appellate court reversed the trial court's decision, holding that the plaintiff was entitled to the reliefs claimed as the defendant was a tenant under Mahammadin Brothers and could not have been evicted by the plaintiff in execution of the decree.
Issues: 1. Whether the plaintiff's failure to execute the decree within the limitation period barred the subsequent suit for recovery of possession. 2. Whether the plaintiff could obtain relief in a separate suit without executing the decree. 3. Whether the relationship of landlord and tenant existed between the plaintiff and the defendant in the absence of execution of the decree.
Ratio Decidendi: 1. The court held that the plaintiff's failure to execute the decree within the limitation period barred the subsequent suit for recovery of possession. The court relied on Order 21, Rules 35 and 36 of the Civil Procedure Code, 1908, which provide for the mode of execution of decrees for delivery of immovable property. The court held that the plaintiff should have taken symbolical possession of the disputed properties through court in execution of the decree, and that the failure to do so meant that the plaintiff did not effect the decree and did not become vested with the title or interest therein. 2. The court held that a separate suit for relief under a decree is barred if the decree-holder allows the decree to become barred by limitation. The court relied on the principle that where the legislature has prescribed a particular mode of enforcing a right created by a decree, the possessor of that right is bound to follow the procedure prescribed, and no other. 3. The court held that the relationship of landlord and tenant did not exist between the plaintiff and the defendant in the absence of execution of the decree. The court held that the plaintiff could not claim any relationship with the defendant, a tenant under Mahammadin Brothers, the judgment-debtor whose interest the plaintiff claims, when the plaintiff did not make the decree effective by putting it into execution.
Final Decision: The appeal was allowed, the judgment and decree of the appellate court below were set aside, and the suit was dismissed.
( 1 ) IN this Second Appeal Chhaganlal Marwari, the principal defendant No. 1 of the original suit is the appellant- The appeal is being contested by the plaintiff-respondent, the Indian Iron and Steel Co. Ltd. described hereinafter as the Company.
( 2 ) THE allegation of the plaintiff-company in the plaint is that the pro forma defendant No. 4 Mahammadin Brothers, a business concern was a non-agricultural tenant in respect of the suit land under the plaintiff and thereafter some constructions were made by the said tenant. The Company filed the Title Suit No. 76 of 1953 in the First Court of Munsif, Asansol against Mahammadin Brothers for recovery of khas possession of the suit land by evicting the said tenant therefrom on determination of the tenancy and also for recovery of arrears of rent and mesne profits. In that suit a preliminary decree was passed on 12-11-1953. The recovery of khas possession of the disputed property was to be made on payment of compensation as might be agreed upon between the parties or determined by the Court in respect of the structures standing on the land. In terms of this preliminary decree a commission was appointed for determination of the value of the structures and the compensation was ultimately assessed by the Court at Rs. 1,390/- and the said amount was deposited by the plaintiff. Accordingly a final decree was passed against Mahammadin Brothers in Aug. , 1957. According to the company after the passing of the final decree, Mahammadin Brothers abandoned the suit property in favour of the plaintiff although the said tenant had let out the suit premises to the principal defendant No. 1 Chhaganlal at a monthly rental of Rs. 30/- prior to the passing of the final decree -. Chhaganlal in his turn let out the suit premises to the principal defendants Nos. 2 and 3 who started occupying the suit premises. According to the plaintiff-company, after the passing of the final decree and the abandonment of the suit premises by Mahammadin Brothers in favour of the plaintiff, the right, title and interest of Mahammadin Brothers in the suit property came to vest in the plaintiff and as such the plaintiff-company became the direct landlord of the principal defendant No. 1. It has been further alleged that the defendant No. 1 promised to pay monthly rents but failed to pay the same. The plaintiff-company thereafter served a notice to quit upon the defendant No. 1 on the expiry of the last day of Aug. , 1963. As the defendant, did not comply with the notice, the company filed the instant suit for declaration of its title, recovery of possession of the suit premises and other reliefs.
( 3 ) THE principal defendant No. 1 Chhaganlal contested the suit by filing a written statement. His case is that one Mahammadin and his brother Imammuddin were non-agricultural tenants in respect of the suit land and they started a business in the name of Mahammadin Brothers. Chhaganlal was a tenant in respect of the structures under them and the defendants Nos. 2 and 3 were his subtenants. It has been further alleged that in 1950 Mahammadin and Imammuddin verbally sold away their right in the suit land along with the structures thereon to him. The defendant No. 1 accordingly has been in possession of the suit property as of right lawfully and adversely and has thus acquired, in any view of the matter, absolute title to the suit property. The defendant No. 1 has denied that he is a tenant under the plaintiff. In the suit besides Chhaganlal, his tenants have been made principal defendants Nos. 2 and 3. "mahammadin Brothers" has been made the pro forma defendant No. 4 and one Md. Isaq has been made the pro forma defendant No. 5. Although Isaq filed the written statement, he did not, as it appears, contest the suit at the time of final hearing and moreover, there was no appeal by him against the decree of the appellate court below.
( 4 ) THE learned Subordinate Judge of the trial court did not accept the pla
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