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High Court Of Calcutta
Bhaskar Bhattacharya, Rajendra Nath Sinha
SAMBHUNATH MITRA - Appellant
Versus
KHAITAN CONSULTANT LTD - Respondent
F. A. T. 1195 Of 2003
Decided On : 04/01/2005
BHASKAR BHATTACHARYA, J. ( 1 ) THESE three first appeals were heard analogously as those are interlinked and are preferred against a common judgment dated February 27, 2003 passed by the learned Judge, 11th Bench, city Civil Court at Calcutta, in Title Suit No. 3099 of 1996 and Title suit No. 347 of 1997 which were heard analogously. By the said judgment, the learned Trial judge dismissed Title Suit No. 3099 of 1996 and decreed Title Suit No. 347 of 1997 thereby passing a decree for khas possession by evicting the defendants of the said suit from the suit premises. The plaintiff of Title Suit No. 347 of 1997 was further given a decree for mesne profit to be adjudicated in separate proceedings. By the said decree, the defendants were directed to vacate the suit premises within two months from the date of passing of such decree. ( 2 ) BEING dissatisfied with the aforesaid two decrees, the present three appeals have been filed. ( 3 ) F. A. T. No. 798 of 2003 is at the instance of the defendant No. 3 in Title suit No. 347 of 1997 against the decree for eviction. F. A. T. No. 1195 of 2003 has L,een preferred by defendant Nos. 1 and 2 in Title Suit No. 347 of 1997 agamst the judgment and decree passed in the said suit. The other first appeal being F. A. T. No. 1132 of 2003 has been taken by plaintiffs in Title Suit No. 3099 of 1996 being dissatisfied with the judgment and decree by which the said suit was dismissed.
Fact of the Case:
1. Khaitan Consultant Limited took the premises on lease from Emerald Company limited and continued to issue rent receipt in the name of Prabhat chandra De. 2. Prasanta Kumar De became seriously ill and was admitted in the Belle Vue Clinic and during his illness the defendant no. 4 who is his daughter and was a student of law, started looking after the firm P. C. De and Company and the plaintiffs at the request of defendant No. 4 started paying their share of rent to her in cash, who assured them that she would be paying the full rent to the landlord. 3. Prasanta Kumar De died on 21st June. 1996 leaving the defendant Nos. 2, 3 and 4 as his sole heirs and legal representatives. 4. On 23rd September, 1996, after coming to Office, the said Sambhunath mitra was surprised to find that the main door of the room was open and the Eastern part of the room No. 23 was under the occupation of khaitan Consultants Limited, the defendant No. 1. On enquiry from mr. Lalit Poddar of the said Khaitan Consultants Limited, the said sambhunath Mitra came to know that Prasanta Kumar De had got the tenancy of the suit room transferred in his name and had purported to surrender his tenancy and delivered vacant possession of the said portion of the suit room in his possession to the defendant No. 1. 5. The said portion was described as schedule 'c' in the plaint. 6. The plaintiffs subsequently came to know that sometime before March, 1996, the defendant No. 1 had let out room No. 23 along with 15 other rooms in the premises to defendant No. 1a who was in actual possession of Eastern portion of room No. 23. 7. The said Sambhunath Mitra, on behalf of the plaintiffs protested against such illegal acts. As the said Prasanta Kumar De was seriously ill and lying unconscious for nearly a year preceding his death, he was not capable of surrendering his tenancy and furthermore, was not by himself competent to surrender the said tenancy as the said tenancy had been inherited by the plaintiffs along with the said Prasanta Kumar de and proforma defendant Nos. 5 to 9.
Finding of the Court:
1. A third party can get the right to realise rent from existing tenant or to sue the existing tenant for eviction only by transfer of such right in accordance with the Transfer of Property Act. 2. The lessor can create a third party's interest in the leasehold property either by creating sale deed or deed of exchange conveying lessor's right or making gift or creating mortgage but having himself divested of the right of the enjoyment of the property and reserving only lessor's right, the lessor cannot further create any lease. 3. The original tenancy of Prabhat Chandra De was continuing even after his death and such tenancy has not been lawfully terminated by the landlord, namely. Emerald Company Limited. 4. Emerald Company Limited is the owner of the property and the lease executed by Emerald Company in favour of Khaitan Consultant Limited did not create any right. 5. The suit is governed under Article 65 of the Limitation Act and as such, the suit filed in the year 1996 could not be held to be barred by limitation.
Issues: 1. Whether a third party can get the right to realise rent from existing tenant or to sue the existing tenant for eviction only by transfer of such right in accordance with the Transfer of Property Act? 2. Whether Emerald Company Limited is the owner of the property and the lease executed by Emerald Company in favour of Khaitan Consultant Limited did not create any right? 3. Whether the suit is governed under Article 65 of the Limitation Act and as such, the suit filed in the year 1996 could not be held to be barred by limitation?
Ratio Decidendi: 1. A third party can get the right to realise rent from existing tenant or to sue the existing tenant for eviction only by transfer of such right in accordance with the Transfer of Property Act. 2. The lessor can create a third party's interest in the leasehold property either by creating sale deed or deed of exchange conveying lessor's right or making gift or creating mortgage but having himself divested of the right of the enjoyment of the property and reserving only lessor's right, the lessor cannot further create any lease. 3. The original tenancy of Prabhat Chandra De was continuing even after his death and such tenancy has not been lawfully terminated by the landlord, namely. Emerald Company Limited. 4. Emerald Company Limited is the owner of the property and the lease executed by Emerald Company in favour of Khaitan Consultant Limited did not create any right. 5. The suit is governed under Article 65 of the Limitation Act and as such, the suit filed in the year 1996 could not be held to be barred by limitation.
Final Decision: 1. F. A. T. No. 1195 of 2003 and F. A. T. No. 798 of 2003 are allowed and the judgement and decree passed in Title Suit No. 347 of 1997 are set aside. 2. F. A. T. No. 1132 of 2003 is allowed by setting aside the judgment and decree passed in Title Suit No. 3099 of 1996 and sending the suit back on remand in the light of the observations made in the body of this order.
( 1 ) THESE three first appeals were heard analogously as those are interlinked and are preferred against a common judgment dated February 27, 2003 passed by the learned Judge, 11th Bench, city Civil Court at Calcutta, in Title Suit No. 3099 of 1996 and Title suit No. 347 of 1997 which were heard analogously. By the said judgment, the learned Trial judge dismissed Title Suit No. 3099 of 1996 and decreed Title Suit No. 347 of 1997 thereby passing a decree for khas possession by evicting the defendants of the said suit from the suit premises. The plaintiff of Title Suit No. 347 of 1997 was further given a decree for mesne profit to be adjudicated in separate proceedings. By the said decree, the defendants were directed to vacate the suit premises within two months from the date of passing of such decree.
( 2 ) BEING dissatisfied with the aforesaid two decrees, the present three appeals have been filed.
( 3 ) F. A. T. No. 798 of 2003 is at the instance of the defendant No. 3 in Title suit No. 347 of 1997 against the decree for eviction. F. A. T. No. 1195 of 2003 has L,een preferred by defendant Nos. 1 and 2 in Title Suit No. 347 of 1997 agamst the judgment and decree passed in the said suit. The other first appeal being F. A. T. No. 1132 of 2003 has been taken by plaintiffs in Title Suit No. 3099 of 1996 being dissatisfied with the judgment and decree by which the said suit was dismissed.
( 4 ) THE Title Suit No. 3099 of 1996 was filed by the appellants of F. A. T. No. 1132 of 2003, the widow and two daughters of late Sambhunath De as plaintiffs against Khaitan Consultant Limited thereby praying for declaration that neither prasanta Kumar De, since deceased, was nor his heirs, i. e. defendant Nos. 2, 3 and 4 therein, were ever the sole tenant in respect of the suit premises with further declaration that those plaintiffs along with other heirs and legal representatives of Prabhat Chandra De, since deceased, were tenants in common in respect of the said room under the defendant No. 1 and that the alleged surrender of tenancy of the suit room by or on behalf of Prasanta Kumar De, since deceased, was void and not binding upon the plaintiffs. In the said suit a further prayer for mandatory injunction directing defendant No. 1 and defendant no. 1a to restore vacant possession of the suit room including the portion thereof as described in schedule 'c' of the plaint was made. The plaintiffs further prayed for perpetual injunction restraining the defendant No. 1 and defendant No. 1a from interfering or disturbing the peaceful possession of the plaintiffs in respect of the suit room or any portion thereof. In the said suit, apart from Khaitan consultant Limited, the defendant No. 1 figured therein, M/s Khaitan and company was made defendant. Over and above, the heirs and legal representative of Prasanta Kumar De and the other heirs of Prabhat Chandra De, since deceased, the father-in-law of plaintiff No. 1, were made proforma defendants.
( 5 ) TITLE Suit No. 347 of 1997, on the other hand, was filed by Khaitan consultant Limited, the defendant No. 1 in Title Suit No. 3099 of 1996, against the appellants of F. A. T. No. 1195 of 2003 as also the appellant of F. A. T. No. 798 of 2003 thereby praying for decree of khas possession of portions of the suit property from appellants of F. A. T. No. 1195, the appellant of F. A. T. No. 798 of 2003. In the said suit, prayer for mesne profit was also made against the defendants. Emerald Company Limited, the admitted owner of the building and the other heirs and legal representative of Prabhat Chandra De were made proforma defendants in the suit.
( 6 ) THE case made out by the plaintiffs of Title Suit No. 3099 of 1996 who are appellants in F. A. T. No. 1132 of 2003 were as follows: (a) Prabhat Chandra De, since deceased, the predecessor-in-interest of the plaintiffs and defendant Nos. 2 to 9, during his lifetime and at the time of his death was the recorded tenant under on
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