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IN THE HIGH COURT OF CALCUTTA
Jyotirmay Bhattacharya, Debi Prosad Dey, JJ.
Sri Pradip Kumar Hazra (since deceased) Substituted by legal heir Partha Pratim Hazra and anr. - Appellant
Versus
Sekhar Chandra Law (since deceased) substituted by legal heir Gita Law and ors. - Respondents
F.A. 18 of 2011 With CAN 4623 of 2015
Decided On : 08-10-2015
SPECIFIC PERFORMANCE - LEASE - CONCURRENT LEASE - LIMITATION - PART PERFORMANCE - SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT - AGREEMENT FOR LEASE - LEGALITY AND VALIDITY - ENFORCEABILITY - DISCRETIONARY RELIEF - EQUITY - FAIRNESS - CONSIDERATION - RENT - CONSTRUCTION - ADMISSION OF DOCUMENTS - OBJECTION - EVIDENCE - TENANCY RIGHT - POSSESSION - ACCRETION - STATUS OF PLAINTIFF.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement for lease and permanent injunction. Kamal Kumari Law, the absolute owner of the property, inducted the plaintiff as a monthly tenant with regard to a portion of the said premises comprising of four garages with adjoining piece of land. On 24.11.1977 Kamal Kumari Law entered into an agreement with the plaintiff to grant him a lease in respect of the said portion of premises number 43 Kailash Bose Street, Calcutta, in which the plaintiff was inducted as monthly tenant on amongst the following terms and conditions. a. That the lease would be for the period of 99 years commencing from 23rd November, 1977 with the option of the plaintiff for renewal thereof for further period of 51 years at a rent of Rs. 400/- per month. b. In case of enhancement of Municipal rates the plaintiff would pay his share towards enhanced Municipal rates. c. The plaintiff would be entitled to construct a multi stored building on the said premises for which the consent of lesser would be deemed to have been given. If necessary the lessor would accord consent for sanction of plan. d. The plaintiff was authorised to transfer the said lease hold premises by way of mortgage, gift or sub-lease without requiring any consent from the lessor. The terms and conditions of the said lease were incorporated in a draft lease with a sketch map signed by the plaintiff and by the said Kamal Kumari Law through her constituted attorney Shri Sujoy Kumar Ghosal. At the relevant point of time granting of lease in Calcutta exceeding 10 years requires prior permission from the competent authority under the urban land (Ceiling and Regulation Act 1976) and as such permission was expected to take some considerable time, the plaintiff and Smt. Kamal Kumari Law entered into an agreement in writing with the draft lease annexure thereof on 24th November, 1977 whereby Kamal Kumari Law agreed to execute and register the lease upon receiving necessary permission from the said competent authority and in the mean time allowed the plaintiff to hold the said premises number 43 Kailash Bose Street, Calcutta as a monthly tenant on the terms and conditions as recorded in the said draft lease. The aforesaid agreement was signed by her constituted attorney Shri Sujoy Kumar Ghosal and defendant No. 1 also signed in that agreement as witness in his personal capacity. Kamal Kumari Law died on 10.05.1978 before she could obtain necessary permission from the competent authority under the urban land (Ceiling and Regulation) Act 1976 and execute and register lease in respect of the suit property. The estate of Kamal Kumari Law thereafter vested in defendant No. 1 namely Sekhar Chandra Law who claims to be the sole executor of the Will of Kamal Kumari Law (since deceased). The plaintiff requested defendant No. 1 to execute and register the deed of lease after obtaining necessary permission from competent authority and defendant No. 1 accordingly promised to do so after obtaining probate of the Will of the deceased Kamal Kumari Law.
Finding of the Court:
The Court held that the plaintiff could not prove the contents of the agreements (exhibit 1, 1(a) and 2). Accordingly, the said agreements cannot be admitted in evidence in its entirety. Secondly the remaining documents exhibited on behalf of the plaintiff/appellant were not at all confronted with the maker of such documents i.e. plaintiff's witness No. 2 and learned trial Court has failed to consider the objection on behalf of the respondents at the time of admission of the aforesaid documents. Thirdly, the suit is definitely barred by the law of limitation for the reasons stated above. Fourthly, the benefit of the principle of concurrent lease is not available to the plaintiff/appellant in view of the discussions made here in above.
Issues: 1. Are the agreement for lease dated 24th Day of November, 1977 and the additional agreement dated 26th December, 1977 entered between the plaintiff and Smt. Kamal Kumari Law (since deceased) enforceable on the defendant No. 1 being the Executor to the estate of Smt. Kamal Kumari Law? 2. Is the defendant No. 1 legally bound to comply with all the terms and conditions as embodied in the agreements dated 24th day of November, 1977 and dated 26th December, 1977? 3. Had the defendant No. 1 any legal right to execute the lease deed dated 19th November, 1979 in favour of the defendant No. 2 during the period of subsistence of the lease dated 24th day of November, 1977 and 26th December, 1977 in respect of the self same property which had already been executed in favour of the plaintiff long before the execution? 4. Is the plaintiff entitled to a decree for specific performance of contract upon having direction to the defendant No. 1 to execute the register in the said lease dated 24th day of November, 1977 as modified by the supplementary lease agreement 26th December, 1977 in favour of the plaintiff? 5. To what other relief or reliefs the plaintiff is entitled?
Ratio Decidendi: The Court held that the plaintiff could not prove the contents of the agreements (exhibit 1, 1(a) and 2). Accordingly, the said agreements cannot be admitted in evidence in its entirety. Secondly the remaining documents exhibited on behalf of the plaintiff/appellant were not at all confronted with the maker of such documents i.e. plaintiff's witness No. 2 and learned trial Court has failed to consider the objection on behalf of the respondents at the time of admission of the aforesaid documents. Thirdly, the suit is definitely barred by the law of limitation for the reasons stated above. Fourthly, the benefit of the principle of concurrent lease is not available to the plaintiff/appellant in view of the discussions made here in above.
Final Decision: The appeal fails. The judgment and decree passed by learned trial Judge in title suit No. 2339 of 1982 are hereby affirmed.
Debi Prosad Dey, J.
This first appeal is directed against the judgment and decree passed by the learned Judge, 3rd Bench, City Civil Court being Title Suit No. 2339 of 1982 dated 20th December, 2006 where under and whereby learned trial Judge has been pleased to dismiss the suit holding inter-alia that the suit is barred by law of limitation, that the plaintiff has not paid proper Court fees in respect of his claim to the property described in the schedule of the plaint, that the schedule given in the plaint is vague and indefinite and that plaintiff is not entitled to get any relief in terms of his claim in view of execution of a registered deed of lease by the defendant No. 1 in favour of defendant No. 2.
2. Being aggrieved by and dissatisfied with the judgment and decree passed by learned trial Judge, the plaintiff has filed this first appeal on amongst other grounds that learned trial Judge could not appreciate the case of the plaintiff in it's proper perspective and that learned trial Judge has failed to apply the correct principle of law in the given facts and circumstances of this case and that learned trial Judge has failed to consider that the defendant No. 1 being privy to the contract has not examined himself and thereby defendant No. 2 has had no authority to challenge the agreement for lease executed by and between the plaintiff and defendant No. 1
3. The further case of the plaintiff is that the alleged deed of lease executed by defendant No. 1 in favour of defendant No. 2 is hit by the principle of concurrent lease and therefore learned trial Judge ought to have decreed the suit in favour of the plaintiff.
4. In order to appreciate the rival claims between the parties, it is necessary to reproduce the case as made out in the plaint as well as in the written statement made out by the parties to this appeal. The plaintiff has filed the suit for specific performance of an agreement for lease and permanent injunction. One Kamal Kumari Law since deceased was the absolute owner of the property situated at 43 Kailash Bose Street, P.S.- Amherst Street, Calcutta- 700006. The plaintiff was inducted as a monthly tenant under Kamal Kumari Law, since deceased with regard to a portion of the said premises comprising of four garages with adjoining piece of land measuring about 03 Cottahs 11 Chittaks and 08 Square feet. On 24.11.1977 Kamal Kumari Law entered into an agreement with the plaintiff to grant him a lease in respect of the said portion of premises number 43 Kailash Bose Street, Calcutta, in which the plaintiff was inducted as monthly tenant on amongst the following terms and conditions.
a. That the lease would be for the period of 99 years commencing from 23rd November, 1977 with the option of the plaintiff for renewal thereof for further period of 51 years at a rent of Rs. 400/- per month.
b. In case of enhancement of Municipal rates the plaintiff would pay his share towards enhanced Municipal rates.
c. The plaintiff would be entitled to construct a multi stored building on the said premises for which the consent of lesser would be deemed to have been given. If necessary the lessor would accord consent for sanction of plan.
d. The plaintiff was authorised to transfer the said lease hold premises by way of mortgage, gift or sub-lease without requiring any consent from the lessor.
5. The terms and conditions of the said lease were incorporated in a draft lease with a sketch map signed by the plaintiff and by the said Kamal Kumari Law through her constituted attorney Shri Sujoy Kumar Ghosal. At the relevant point of time granting of lease in Calcutta exceeding 10 years requires prior permission from the competent authority under the urban land (Ceiling and Regulation Act 1976) and as such permission was expected to take some considerable time, the plaintiff and Smt. Kamal Kumari Law entered into an agreement in writing with the draft lease annexure thereof on 24th November, 1977 whereby Kamal Kumari Law agreed to execu
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