In The High Court at Calcutta Civil Appellate Jurisdiction Original Side The Hon'ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Uday Kumar A.P.O.T. No.415 of 2024 Arising out of C.S. No.257 of 2016 IA No. GA 1 of 2024 Sandeep Agarwal and Another VS Sidhartha Dealer LLP and Others For the appellants : Mr. Abhrajit Mitra, Sr. Adv., Mr. Arif Ali, Adv., Mr. Arnab Sardar, Adv.

For the respondents : Mr. Dhrubo Ghosh, Sr. Adv., Mr. Souvik Majumdar, Adv., Mr. Soumabho Ghosh, Adv., Ms. Anyapurna Banerjee, Adv.

Ms. Ajeyaa Chowdhury, Adv.

Hearing concluded on : 19.02.2025 Judgment on : 26.02.2025 Sabyasachi Bhattacharyya, J:-

1. The present intra-court appeal arises out of a suit for recovery of khas possession by evicting defendant nos.2 to 5, for recovery of proportional municipal rates and taxes and mesne profits and consequential reliefs. By the impugned judgment, an application filed by the defendant nos.2 and 4 under Order VII Rule 11 of the Code of Civil Procedure, for rejection of the plaint, was dismissed.

2. The brief facts of the case are that the defendant/respondent nos.6 to

10, in the capacity of trustees to the trust estate of Raja Rajendra Mallick Bahadur, granted lease in favour of the defendant/respondent no.2, namely Orient Beverages Limited, by a registered deed of lease dated September 29, 1965. The lease was granted from October 1, 1965 for a period of 50 years, expiring on September 30, 2015.

3. During the pendency of the above lease, the defendant nos.6 to 10 executed a further registered lease deed in favour of the plaintiff/respondent no.1 on March 31, 2001, to be given effect from October 1, 2015, the date of expiry of the previous lease, or sooner determination of the earlier lease, whichever was earlier.

4. On the strength of the second lease deed in its favour, the plaintiff/respondent no.1 filed the suit being C.S. No.257 of 2016 on August 30, 2020.

5. Defendant nos. 2 and 4 (present appellants) filed the application for rejection of plaint claiming to be sub-lessees under defendant no.1/respondent no.2 Orient Beverages Limited, arguing that there was no privity between the plaintiff and the said sub-lessees;as such, the plaintiff cannot file a suit for eviction directly against the sub-

lessees, bypassing the lessee/defendant no.1.

6. The second ground on which the application for rejection of plaint was filed was that the plaintiff’s lease is invalid, in the absence of any possession being handed over coupled with the creation of the same.

7. Thirdly, it was contended that there cannot be any concurrent lease during subsistence of the previous lease in favour of the defendant no.1. As such, the lease deed on the strength of which the suit has been filed is invalid in the eye of law.

8. Learned senior counsel appearing for the appellant contends that the plaintiff/respondent no.1 sought eviction directly against the defendant nos.2 to 5/sub-lessees without seeking any eviction against the lessee (defendant no.1/respondent no.2). Learned senior counsel cites Hiralal Vallabhram v. Kastorbhai Lalbhai and Others, reported at AIR 1967 SC 1853 for the proposition that a landlord cannot sue a sub-tenant alone for eviction but has to sue the tenant and only if he succeeds against the tenant, the sub-tenant would be ejected along with the tenant-in-chief unless he can take advantage of any provision of the Rent Control Act.

9. It is next argued by the appellants that concurrent lease during subsistence of the earlier lease is not permissible in law.

10. Thirdly, learned senior counsel appearing of the appellant argues that no lease could be created in favour of the plaintiff/respondent no.1 without possession being handed over to the plaintiff. It is argued that there cannot even be surrender by the principal lessee in favour of the superior lessor without actual handing over of physical possession of the property. In support of such contention, learned senior counsel cites Tirath Ram Gupta v. Gurubachan Singh and