CALCUTTA HIGH COURT
I. P. Mukerji and Aniruddha Roy, JJ.
Jyoti Biswas and Ors. —Appellants
versus
Raj Kumar Ghosh and Ors. —Respondents
APD No.269 of 2018 with CS No.524 of 1984, EC No.146 of 2017 and IA No. GA No.2 of 2020 ; APD Nos.270, 271, 272, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 310, 311, 312 and 313 of 2018 with EC No.146 of 2017, CS No.524 of 1984 ; APD No.314 of 2018 with EC No.146 of 2017, CS/524/1984, IA NO. GA 2 of 2020 (Old No. GA 766 of 2020) ; APD Nos.315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329 and 330 of 2018 with EC/146/2017, CS/524/1984 APD No.331 of 2018 with EC/146/2017, CS/524/1984 and IA No. GA 2 of 2021 ; APD Nos.332, 333, 334, 335, 336, 337, 338, 338, 339 and 340 of 2018 with EC/146/2017, CS/524/1984
Decided on 26.4.2022

IMPORTANT POINTS
(1) Abatement of suit—After abatement of first suit no fresh suit could be brought on same cause of action.
(2) Right to future rent—Right to realise future rent and profit from an immoveable property can be created only by sale—If a property is already a subject matter of a tenancy, during continuance of such tenancy landlord cannot create another monthly tenancy over self same property by taking advantage of Doctrine of Concurrent Lease.
(3) Concurrent Lease—Ordinarily, decree against lessee binds sub-lessee—With lessee sub-lessees may be evicted.

Headnote:

(A) Civil Procedure Code, 1908—Order XXII, Rule 9—Abatement of suit—The moment a suit stands abated, by fiction of law, everything under said suit including cause of action therein immediately loses binding force, and is without any effect and further effect—With such abatement entire cause of action in first suit stood extinguished—After abatement of first suit no fresh suit could be brought on same cause of action—When a suit abates, a substantive and valuable right is created in favour of parties who can take benefit of same unless specifically set aside by Court as provided under the Code. (Paras 52 and 61)

(B) Transfer of Property Act, 1882—Section 54 read with Sections 58(d) and 60(e)—Right to future rent—Right to realise future rent and profit from an immoveable property can be created only by sale—If a property is already a subject matter of a tenancy, during continuance of such tenancy landlord cannot create another monthly tenancy over self same property by taking advantage of Doctrine of Concurrent Lease in violation of provisions contained in Section 54 of Transfer of Property Act—Under Section 60(e) of Transfer of Property Act, mere right to sue cannot be transferred without creating any interest in property—However, during subsistence of a lease lessor can execute usufructuary mortgage and by virtue of such mortgage, mortgagee acquires a right to step into shoes of lessor and would also acquire right to realise future rent or right of reversion as against existing first lessee in terms of provisions laid down in Section 58(d) of Transfer of Property Act. (Paras 55, 56 and 57)

(C) Civil Procedure Code, 1908—Order XXI, Rule 99 read with section 47—Objection to execution of eviction decree—In the event where facts are complicated and require complete adjudication through a proper and detail fact finding enquiry, Executing Court has no option but to go for a detailed trial on evidence for complete adjudication of right, title and interest of obstructionist in a property—Whether appellants have or have no independent right as to their occupation in suit property, needs detailed adjudication upon proper evidence action and in appreciation thereof—Impugned judgment and order passed in execution case set aside and reversed—Respective applications filed in execution case by individual appellants shall be adjudicated upon afresh on trial on evidence, on their own merit. (Paras 64, 65 and 66)

Per I.P. Mukerji, J. (Independent Assenting View)

Transfer of Property Act, 1882—Section 109—Rent and Eviction—Concurrent Lease—When a lessor grants a lease, he transfers to lessee right to enjoy demised property for a certain period of time on payment of rent or other consideration periodically—Interest in property which remains with lessor after grant of a lease, is reversion—This reversion is considered as immovable property—This right in reversion is capable of transfer—Lessor may assign it to another person—This transfer is also known as and is same as concurrent lease—On assignment of reversion, assignee becomes entitled to rent paid to lessor by lessee and acquires rights and benefits of covenant between them—Assignee becomes an intermediate lessor between lessor and lessee, for entire term of assignment which may be shorter or greater than term of original lease—Ordinarily, decree against lessee binds sub-lessee—With lessee sub-lessees may be evicted. (Paras 2, 3, 18)

Result: Appeals allowed.