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2018 Supreme(Cal) 327
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Biswanath Somadder, Moushumi Bhattacharya, JJ.
Mahavir Properties Private Limited – Appellant
Versus
Sri Iswar Gajalakshmi Mata Thakurani and Others – Respondents
APD Nos. 173, 174 of 2015 with C.S. No. 164 of 1988
Decided On : 18-05-2018
For the Appellants : Mr. P.S. Bose, Mr. D.S. Mishra, Mr. Sushil Kr. Mishra, Mr. Shailendra Kr. Mishra, Mr. Pratap Chatterjee, Mr. Saikat Basu, Mr. Abhijit Dey.
For the Respondents: Mr. Sabyasachi Chowdhury, Mr. Chanchal Kumar Dutt, Mr. Rajarshi Dutta, Ms. Krishna Mullick.
The judgment establishes the legal principles related to lease breaches, lease determination, and unauthorised construction under the Transfer of Property Act, 1882 and Kolkata Municipal Corporation rules.
Headnote:
Eviction - Lease Breach - Transfer of Property Act, 1882 - Sections 111(g), 114A - Unauthorised Construction - Kolkata Municipal Corporation Rules Violation - Mesne Profits
Fact of the Case:
The suit involved a dispute over a lease agreement for a property in Kolkata. The plaintiffs sought eviction and mesne profits from the defendants, alleging breach of lease terms, non-payment of rent, and unauthorised construction.
Finding of the Court:
The court found that the plaintiffs had a valid cause of action to file the suit, there was a valid determination of the lease, and the defendants failed to pay monthly rents as per the lease agreement. The court also determined that the defendants had constructed unauthorised structures in violation of the Kolkata Municipal Corporation rules.
Issues: The issues included the cause of action for the suit, the validity of lease determination, non-payment of rents, and unauthorised construction.
Ratio Decidendi: The court held that the plaintiffs had a valid cause of action, the lease was validly determined, and the defendants failed to pay rents and breached the lease terms by unauthorised construction.
Final Decision: The court dismissed the appeals and upheld the decree for eviction and mesne profits in favor of the plaintiffs.
Moushumi Bhattacharya, J.
1. The instant appeals arise out of a judgment dated 14th January 2015 in a suit for eviction and for mesne profit filed by the respondent No. 1 (Iswar Gajalakshmi Mata Thakurani) in 1988 against Marshall Sons (the Appellant in APD No. 174 of 2015) for khas possession of the suit premises as described in Schedule A of the plaint. Mahavir Properties (the appellant in APD No. 173 of 2015) got itself added as defendant No. 2 on its application for addition of party under leave granted by an order dated 10th March 2004 passed by this Court. Mahavir filed its written statement in the suit in May 2004 disputing the claim of the plaintiffs for determination of the lease and khas possession of the suit property as well as mesne profit.
2. The plaintiffs to the suit are the respondents before us, Marshall (the appellant in APD No. 174 of 2015) is the defendant no. 1 in the suit being C.S. No. 164 of 2015 and Mahavir (the appellant in APD No. 173 of 2015) is the defendant No. 2 in the suit being C.S. No. 164 of 2015.
3. The plaintiff’s case is that premises No. 33/1, Netaji Subhas Road, Kolkata-700001 was demised in his favour by 17 deeds of settlement all dated 1st June 1965 by one Murari Charan Law, since deceased. By a registered deed of lease dated 20th April 1964 the defendant No. 1/respondent was inducted as a Lessee of the entirety of the suit premises by Murari Charan Law, since deceased. According to the plaintiffs, the first defendant took possession of the suit premises and in possession thereof.
4. According to Mahavir, by a registered lease deed dated 20th April 1964, the plaintiffs demised unto the defendant No. 1, premises No. 33/1, Netaji Subhas Road for a period of 60 years with the option of renewal for a further 25 years. By virtue of the said deed of lease the defendant No. 1 had the liberty to assign or sublet the entire leasehold interest to any third party without consent of the lessor namely, the plaintiff. Pursuant to the powers given under the said deed of lease the defendant No. 1 executed a registered sub-lessee on 21st January 1974 whereby the defendant No. 1 demised in favour of the defendant No. 2 the premises mentioned in the lease deed dated 20th April, 1964, by virtue of the said sub lease dated 21st January 1974, the defendant No. 1 took possession of the said premises.
5. Before filing the instant suit the plaintiff served a notice of Ejectment dated 16th December, 1987 (Exhibit-F) under section 111(g) of The Transfer of Property Act, 1882 upon the defendant No. 1. In the said notice two grounds were alleged namely that (i) illegal construction of unlawful structures covering about 8000 square feet on the roof of the demised building and (ii) default in payment of rent since October, 1987.
6. The additional ground is that the defendant had illegally and in deviation of original sanctioned building plan converted the bathroom space on the ground floor into shops.
7. In defence to the claims made in the plaint, Marshall alleged that under the terms of the lease, the lessee was entitled to pulling down the existing structure and constructing a new one and that the construction was in conformity with the Rules of the Calcutta Corporation. It further contended that the lessee could sublet the demised premises by way of mortgage which it did to Mahavir, which in turn constructed a new building by pulling down the existing structure. The other point taken by Marshall is that the notice determining the lease dated 16th December 1987 was never served upon Marshall as defined in section 27 of the General Clauses Act, 1897, as also sections 111(g) and 114A of the Transfer of Property Act, 1882. Mahavir’s defence with regard to the notice terminating the lease not being valid in law is the same as Marshall’s. Additionally, it disputes that there was any unauthorised construction or deviation caused by it in the demised premises.
8. Upon hearing the parties, the learned Single Judge set
