IMPORTANT POINT
The main legal point established in the judgment is the distinction between transfer of interest and transfer of ownership in leasehold property, and the authority of a lessee to transfer leasehold interest. The judgment also clarifies the principles of joint tenancy and tenants-in-common in the context of partition of leasehold property.

JUDGMENT :

TAPABRATA CHAKRABORTY, J.

1. The challenge in the present appeal is against the order and/or decree dated 28.9.2015 passed by the learned Civil Judge, Senior Division, 2nd Court, Asansol in T.S. No. 1137 of 2014 whereby the suit has been dismissed ex-parte.

2. One Sandhya Rajak and her two sons, all being legal heirs of one Raj Narayan Rajak (in short Raj Narayan), since deceased filed one suit for partition, which was registered as T.S. No. 1137 of 2014, against one Ghanashyam Rajak contending, inter alia, that the suit property originally belonged to one Kamala Devi, who transferred the same in favour of Smt. Charanjit Kaur by virtue of one registered deed of permanent lease vide no. 2363 of 1982.

3. Raj Narayan and Ghanashyam were the tenants under Kamala Devi and they used to conduct a laundry-business jointly in the suit premises and subsequently they became bona fide tenants under Charanjit and later Charanjit transferred the suit property in favour of Raj Narayan and Ghanashyam by executing two separate deeds of sale vide. Nos. 728 dated 14.2.1984 and 723 dated 9.2.1984 and it was claimed that Raj Narayan and Ghanashyam constructed first floor on the suit premises from the joint fund of laundry-business.

4. Raj Narayan died on 18.8.2007 leaving behind Sandhya as his widow and two sons, namely, Sanjeet and Surjet (hereinafter referred to as the plaintiffs) and it was asserted that the plaintiffs are joint owners of the suit property and laundry-business to the extent of half share thereof and the defendant, who used to share 50% profit of the business with the plaintiffs, suddenly stopped paying the same and on 31.7.2014 by issuing one letter, the plaintiffs demanded partition of the suit property by metes and bound and half share of that business but on 4.8.2014, the defendant refused to share the profit of that business and also refused to make partition of the suit property and hence, plaintiffs were constrained to institute the suit praying for partition and separate possession of the suit property and accounts of the business.

5. Records reveal that the Ghanashyam entered his appearance and prayed for accommodation to file written statement but thereafter, he did not take any step and hence, the suit was fixed for ex parte hearing.

6. In corroboration of the facts epitomized in the plaint, the plaintiffs adduced oral testimony of Sanjeet and plaintiffs tendered deeds of sale vide. Nos. 728 of 1984 and 723 of 1984, certified copy of the deed vide. No. 2363 of 1982, Municipal Tax Receipts and two rent receipts, marked as Ext.1 to 5 series respectively.

7. Upon perusal of pleading and upon appreciation of evidence brought on record by the plaintiffs, learned Court below dismissed the suit ex-parte, holding, inter-alia, that Charanjit was a lessee and she had no right to sell the suit property and plaintiffs could not produce any document relating to joint laundry-business. Aggrieved thereby, plaintiffs have preferred the present appeal.

8. None appeared to represent the respondent and consequently, the appeal was taken up for hearing in absence of the respondent.

9. Drawing our attention to clause 2(iii) of the deed of lease vide. No. 2363 dated 31.3.1982, Mr. Raha learned advocate, appearing for the plaintiffs/appellants (in short, the appellants) submits that Charanjit had been empowered to ‘part with possession’ and being so empowered, Charanjit sold out the suit property to the predecessor of the plaintiff and to the defendant/respondent (in short, respondent) by two different deeds and suit property is still joint and there is no impediment in directing partition of the suit property. He further submits that even the Court can direct partition of lease-hold property. In support of such contention, he placed reliance upon the judgments delivered in the cases of Rajani Mohan Saha and Others vs. Sambhu Nath Saha and Others, AIR 1929 Cal. 710 and Raghuram Rao and Others vs. Eric P. Mathias and Others, AIR 2002 SC 797