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IN THE HIGH COURT OF CALCUTTA
Ashoke Kumar Dasadhikari, J.
Debasish Batabyal – Petitioner
Versus
Smt. Chaitali Batabyal & Ors. – Opposite Parties
C.O. 39 of 2015
Decided On : 24-07-2015
PROPERTY LITIGATION - ADDITION OF PARTY - SUB-LESSEE - DIRECT INTEREST - TRANSFER OF PROPERTY ACT, SECTION 52 - ORDER 1, RULE 10(2) OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
Petitioner, a sub-lessee, sought to be added as a party in a Title Appeal concerning the eviction of the opposite parties from a property. The petitioner claimed a direct interest in the property based on a registered sub-lease deed executed in his favor by the original lessee. The Trial Court rejected the petitioner's application, relying on the doctrine of lis pendens under Section 52 of the Transfer of Property Act and the petitioner's failure to obtain leave from the Court before the execution of the sub-lease.
Finding of the Court:
The High Court allowed the petitioner's revision application, holding that the petitioner had a direct interest in the property and the outcome of the appeal could affect his rights. The Court distinguished the case from the Supreme Court judgment in Sanjay Verma v. Manik Roy, where the party did not seek leave before the execution of the lease, and the result of the litigation would not be binding on them. In this case, the Court noted that the plaintiff and defendant were entering into a compromise after the execution of the decree, in which the petitioner was a party, and this could adversely affect his interests.
Issues: 1. Whether the petitioner, as a sub-lessee, has a direct interest in the property in question? 2. Whether the doctrine of lis pendens under Section 52 of the Transfer of Property Act bars the petitioner's addition as a party? 3. Whether the petitioner's failure to obtain leave from the Court before the execution of the sub-lease precludes his addition as a party?
Ratio Decidendi: 1. The Court held that the petitioner, as a sub-lessee with the same rights as the original lessee, had a direct interest in the property and the outcome of the appeal. The clauses of the sub-lease agreement granted the petitioner the right to execute the decree, make constructions, induct tenants, and evict unauthorized occupants. 2. The Court distinguished the case from Sanjay Verma v. Manik Roy, where the party did not seek leave before the execution of the lease, and the result of the litigation would not be binding on them. In this case, the Court noted that the plaintiff and defendant were entering into a compromise after the execution of the decree, in which the petitioner was a party, and this could adversely affect his interests. 3. The Court held that the petitioner's failure to obtain leave from the Court before the execution of the sub-lease did not preclude his addition as a party, as there was an exception in this case due to the compromise being made against the petitioner's interests.
Final Decision: The High Court set aside the Trial Court's order and allowed the petitioner's application to be added as a proforma opposite party in the appeal.
Ashoke Kumar Dasadhikari, J.
1. The order impugned passed by the learned Additional District Judge, 3rd Court, Barrackpore, North 24-Parganas on 8th December, 2014 in Title Appeal No.29 of 2012 refusing the prayer of the petitioner to add him as party in the Title Appeal is under challenge in this revisional application.
2. Mr. Roychowdhury, learned Senior Counsel appearing for the petitioner submits that the property in question was owned by Sri Sri Gopinath Jew alias Shri Shri Radha Krishna Jugalmurty. Smt. Krishna Rani Bhuiya as shebait representing deity instituted a suit against the opposite party nos.1 to 4 being the defendants in the suit with a prayer for a decree of ejectment and recovery of khas possession of the suit property. During pendency of the suit Krishna Rani Bhuiya executed a lease deed in favour of one Debkumar Khan.
3. Mr. Roychowdhury submits that it would appear from the registered sale deed that Krishna Rani Bhunia is the shebait of the deity and fully in charge of management and administration of the said property, which was not in a position to maintain and repair it. The property was lying in most dilapidated condition for want of necessary repairs and maintenance for a long time and may collapse at any time. As per the lease deed the lessee was under obligation to pay rent at the rate of Rs. 4040/- for 99 years amounting to Rs. 3,99.960/- and the yearly rent is to commence from August, 2006.
4. Mr. Roychowdhury submits the lessee was authorised and empowered to make construction in the said premises and can make addition and alteration and renovation as an when necessary and for that purpose he is authorised to submit building plan to the Municipality and obtain the building plan in the name of the lessee. The lessee was also authorised and empowered to make and grant and convey the said premises, to sub-lease to any person or persons. The lessee is authorised and empowered to let out the rooms of the said premises to the tenants and can induct tenant and can evict the present tenant by or through competent court of law. The lessee is also entitled to collect rents and to grant rent receipts. The lessee is also entitled and authorised and empowered to evict the unauthorised occupants. As per clause (j) without consent of the lessor, the lessee can create any sublease and assign and can part with his lease-hold estate or interest in the said premises created under this presents. The lessee is authorised and empowered to proceed with the execution case on behalf of the lessor which is pending in the court of the Civil Judge (Junior Division) at Sealdah.
5. Mr. Roychowdhury submits that the present petitioner got a sub-lease from Debkumar Khan on the same terms and conditions of the lease entered into between Debkumar Khan and Smt. Krishna Rani Bhuia, shebait of the deity.
6. Mr. Roychowdhury submits that the petitioner being the sub-lessee having same right as the lessee was having and authorised to execute the decree in the execution proceeding. In the instant case the suit was decreed against the opposite party nos.1 to 4 and the decree was executed. However, opposite party nos.1 to 4 being the defendants in the eviction suit filed an appeal being Title Appeal No.29 of 2012.
7. Mr. Roychowdhury submits in that appeal the petitioner being the sub-lessee moved an application under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure contending therein that he has a direct interest in respect of the property in question and therefore, he should be added as party to the proceedings.
8. Mr. Roychowdhury submits, in the application for addition of party it was specifically stated that property was leased out on 14th August, 2006 by the deity represented by Smt. Krishna Rani Bhuia, sole shebait of the deity to Sri Debkumar Khan who is the lessor of the said premises for the period of 99 years. Thereafter the said lessee transferred the property by making a registered deed of sub-lease d
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