Raghuvanshi Private Ltd. v. Rupchand Gupta — 1962 DIGILAW 152 (CAL)

JUDGMENT 1. THIS appeal arises out of a suit instituted by a sub-lessee of a vacant plot of land against the superior landlord and the lessee for a declaration that the sub-lessee is still a tenant of the land under the lessee and is not liable to be ejected under a decree for ejectment obtained by the landlord against the lessee and for an injunction restraining the landlord from evicting the sub-lessee in execution of the decree. The landlord is Raghuvanshi (Private) Ltd., the lessee is Land and Bricks Limited and the sub-lessee is Rupchand Gupta carrying on business under the name and style of Messrs. Hind Airways. Raghuvanshi Private Ltd. was incorporated on august 9, 1949 and Land and Bricks Ltd. was incorporated on August 12, 1949. The object of both the companies is to acquire, manage and deal in lands and buildings and real properties. Until February 4, 1951 Raghuvanshi Private Ltd. had six directors namely, Karsandas Khimji Popat, Ratilal Khimji Popat, Girdhardas Bhimji Mansata, Vithaldas Bhimji Mansata, Janaklal Balkisen Joshi, and Balmukund Kshetry. Since February 4, 1951 Janaklal Balkisen Joshi and Balmukund Kshetry ceased to be directors of Raghuvanshi Private Ltd. and thereafter until November 30, 1954 Karsandas Khimji Popat, Ratilal Khimji Popat, girdhardas Bhimji Mansata and Vithaldas Bhimji Mansata continued to be its directors. On or about November 30, 1954 Karsandas Khimji Popat ceased to be the director of Raghuvanshi Private Ltd. and thereafter Ratilal Khimji Popat, Girdhardas Bhimji mansata and Vithaldas Bhimji Mansata continued to be its directors. At all material times, Karsandas Khimji Popat, Ratilal Khimji Popat, Girdhardas bhimji Mansata and Vithaldas Bhimji Mansata were the directors of Land and Bricks Ltd. Also at all material times since February 4, 1951 the Popat and the Mansata groups of directors owned and/or controlled the entirety of the share holding in both the companies. By mutual arrangement between the directors, Karsandas Khimji Popat used to look after the affairs of Land and Bricks Ltd. and Vithaldas Bhimji Mansata used to look after the affairs of Raghuvanshi Private Ltd. At the relevant time both the companies had their registered offices at the premises No. 30, Chittaranjan avenue, Calcutta. They used the same telephone, had the same staff and also employed a common pleader for drafting the resolutions of the minutes of the meetings of the directors of both the companies. They used the same telephone, had the same staff and also employed a common pleader for drafting the resolutions of the minutes of the meetings of the directors of both the companies. On January 21, 1950 Raghuvanshi Private Ltd. obtained from the Official Trustee, West Bengal, a building lease of about 52 cottahs of vacant land in premises Nos. 17/1 and 17/1/1, Kashinath Mullick Lane and 6, Ramlochan Mullick Street in the town of Calcutta for a period of 75 years commencing from January 21, 1950. The lease required the construction by Raghuvanshi Private Ltd. of a three or four storied building on the demised land within 10 years and provided that the official Trustee would deliver vacant possession to Raghuvanshi Private Ltd. of 10 cottahs of land on the execution of the deed, 27 cottahs within three months, five cottahs within 9 months and the balance 10 cottahs within three years. Thereafter Raghuvanshi Private Ltd. leased to Land and Bricks Ltd. as from September 1, 1950 about 101/2 cottahs of vacant land out of the land demised by the Official Trustee upon the terms and conditions recorded in the letters dated August 15 and August 17, 1950, passed by and between Raghuvanshi Private Ltd. and Land and Bricks Ltd. As Raghuvanshi Private Ltd. had then obtained vacant possession of 8 Cottah9 of land only from the Official Trustee, Raghuvanshi Private Ltd. delivered to Land and Bricks Ltd. only 8 cottahs of land on or about September 1, 1950. Subsequently towards the end of September, 1950 the Official Trustee gave to Raghuvanshi Private Ltd. vacant possession of about 21/2 cottahs of vacant land and thereupon Raghuvanshi Private Ltd. in its turn delivered possession of the aforesaid 21/2 cottahs of land to Land and Bricks Ltd. Simultaneously the terms and conditions of the lease by Raghuvanshi Private Ltd. to Land and Bricks Ltd. were recorded afresh in the letters dated September 28 and September 29, 1950 passed by and between Raghuvanshi Private Ltd. and Land and Bricks Ltd. By these letters the tenancy in favour of Land and Bricks Ltd. was declared to be a monthly tenancy commencing from October 1, 1950. By the terms of the lease Land and Bricks Ltd. undertook (a) not to erect any structure either permanent or temporary without the previous consent in writing of the raghuvanshi Private Ltd. (b) not to assign or sub-let the land without the previous consent in writing of Raghuvanshi private Ltd. The rent payable by Land and Bricks Ltd. was Rs. 420/-per month. Land and Bricks Ltd. in its turn sub-let the aforesaid 10 1/2 cottahs of land to plaintiff Rupchand Gupta in his business name of Hind Airways upon the terms and conditions recorded in the letters dated August 19 and September 5, 1950 passed between Hind Airways and Land and Bricks Ltd. By the terms of the sub-lease the plaintiff undertook (a) to use the open land for garaging motor vehicles only and not to construct anything on the land, (b) not to sublet the land to anybody. The sub-lease was a monthly tenancy commencing from September 1, 1950 and the rent payable by the plaintiff was fixed at Rs. 95/- per cottahs per month. As Land and Bricks Ltd. could not deliver to the plaintiff vacant possession of about 21/2 cottahs of land until the end of September, 1950, Land and Bricks Ltd. charged the plaintiff rent for September 1950 in respect of 8 cottahs of land only. 2. IT is to be noticed that Land and Bricks Ltd. deliberately violated its undertaking to Raghuvanshi Private Ltd. not to sub-let any portion of the land and similarly the plaintiff also deliberately violated his similar undertaking to Land and Bricks Ltd. The plaintiff also deliberately violated his undertaking to Land and Bricks Ltd. not to construct anything on the land. Sometime in 1951, the plaintiff in breach of its undertaking constructed on the land a pucca structure with corrugated iron roof. On coming to know of the construction, Land and Bricks Ltd. by its letter dated July 10, 1951 to the plaintiff emphatically protested against the construction of the unauthorised structure. The protest was followed by proceedings for demolition of the structure instituted by the Corporation of Calcutta. These proceedings were subsequently dismissed. Land and Bricks Ltd. made a further protest with regard to the construction of the unauthorised structure by its letter dated January 9, 1953 to the plaintiff. The protest was followed by proceedings for demolition of the structure instituted by the Corporation of Calcutta. These proceedings were subsequently dismissed. Land and Bricks Ltd. made a further protest with regard to the construction of the unauthorised structure by its letter dated January 9, 1953 to the plaintiff. This protest was followed by a second proceeding instituted by the Corporation of Calcutta against the plaintiff for demolition of the unauthorised structure. This proceeding was also dismissed. The value of the structure is said to exceed Rs. 50,000 / -. 3. IN the meantime in February 1953 Land and Bricks Ltd. served upon the plaintiff an ejectment notice in respect of the 10 1/2 cottahs of land in dispute. This notice is not an exhibit in this case but a similar notice dated February 16, 1953 served by and on behalf of Land and Bricks Ltd. on the plaintiff in respect of a sub-lease of another plot of 2 1/2 cottahs of land is an exhibit. This notice described the tenancy of the plaintiff as a thika tenancy. The notices to quit were not followed up by a suit for ejectment by Land and Bricks Ltd. against the plaintiff. Rent was paid by the plaintiff and accepted by Land and Bricks Ltd. subsequent to these notices. It also appears that the plaintiff defaulted in payment of the rents payable by it to Land and Bricks Ltd. instituted suit No. 2586 of 1955 against the plaintiff, claiming arrears of rent amounting to Rs. 11,265/- in respect of the tenancies regarding both 101/2 cottahs of land and 2 1/2 cottahs of land. Later Land and Bricks Ltd. instituted against the plaintiff a second suit being suit No. 1542 of 1957 claiming subsequent arrears of rent. The plaintiff contested both the suits. Eventually both the suits were decreed by consent. 4. IN the meantime on April 11, 1955 the attorney for Raghuvanshi Private Ltd. served upon Land and Bricks Ltd. a notice to quit the 10 1/2 cottahs of land expiring with the month of April, 1955 and on December 12, 1955 instituted against Land and Bricks Ltd. a suit for ejectment and mesne profits in respect of the land. The suit was decreed exparte on May 11, 1956. The suit was decreed exparte on May 11, 1956. The plaintiff came to know of the exparte decree on or about November 2, 1956, when the bailiff went to the land for the purpose of executing the decree. The present suit was instituted on November 26, 1956. The plaint in the present suit mentioned the lease by Raghuvanshi Private Ltd. to Land and Bricks Ltd., the sub-lease by Land and Bricks Ltd. to the plaintiff, the notice to quit dated April 11, 1955 served by Raghuvanshi Private Ltd. upon land and Bricks Ltd. and the subsequent suit and exparte decree obtained by 3iaghuvanshi Private Ltd. against Land and Bricks Ltd. The plaint charged that this decree was obtained by fraud and collusion. In the particulars of the fraud and collusion, the plaint alleged that Raghuvanshi Private Ltd. and Land and Bricks Ltd. had common directors, that both companies were looked after by Karsandas Khimji Popat, that the claim for ejectment made in the previous suit instituted by Raghuvanshi Private Ltd. against Land and Bricks Ltd. was made on the basis of false allegations, that neither of the two companies could eject the plaintiff in view of the Calcutta Thika Tenancy Act, 1949 and that consequently Raghuvanshi Private Ltd. and Land and Bricks Ltd. colluded with each other in order to enable Raghuvanshi Private Ltd. to procure the exparte decree against Land and Bricks Ltd. and execute the same against the plaintiff. The plaint also raised a dispute that the notice to quit dated April 11, 1950, did not determine the lease by Raghuvanshi Private Ltd. to Land and Bricks Ltd. By an amendment introduced in the plaint the plaintiff also contended that by the decree Land and Bricks Ltd. had surrendered its tenancy in favour of the Raghuvanshi Private Ltd. and/or had suffered a forfeiture of the tenancy. Paragraph 4 of the plaint raised the contention that the structure on the land was erected with the knowledge of the defendants and that the stipulation prohibiting the construction was waived by them. The defendants filed written statements denying and disputing the allegation. At the trial the learned trial Judge raised the following issues:-1 (a) Has the plaintiff erected any structure as alleged in paragraph 9 of the plaint? (b) Has the structure been erected with the knowledge of defendants ? The defendants filed written statements denying and disputing the allegation. At the trial the learned trial Judge raised the following issues:-1 (a) Has the plaintiff erected any structure as alleged in paragraph 9 of the plaint? (b) Has the structure been erected with the knowledge of defendants ? (c) Has there been any waiver on the part of the defendants of their rights as alleged in paragraph 9 of the plaint? 2. Has there been any fraud or collusion on the part of the defendants as alleged in paragraph 12 of the plaint and the subparagraphs there under? 3. Is the plaintiff bound by the decree dated the 11th May, 1956 passed in suit No. 3283 of 1955? 4. Has there been any forfeiture or surrender of tenancy as alleged in paragraph 13 (a) of the amended plaint? 5. To what relief, if any, is the plaint entitled?" 5. At the conclusion of the trial, Counsel for the plaintiff did not press issues Nos. 1 (b), 1 (c) and 4. Before us also Counsel for the plaintiff no longer charges that the structure had been erected with the knowledge of the defendants or that there had been any waiver on the part of the defendants of their rights as alleged in paragraph 9 of the plaint. Indeed the learned trial Judge has not accepted the evidence of the plaintiff that although he had signed the two letters dated August 19 and September 5, 1950, containing the terms of his tenancy under the Land and Bricks Ltd., he did not know or understand their contents. The learned trial Judge also rejected his testimony to the effect that Popat had asked him not to take any notice of the letters protesting against the unauthorized construction. On behalf of the plaintiff it is not now urged that the breach of his undertaking not to construct any structure on the land had been waived as alleged in paragraph 9 of the plaint. The contention that by the exparte decree dated the 11th May, 1956, Land and Bricks Ltd. had surrendered its tenancy under Raghuvanshi Private Ltd. and/or suffered a forfeiture of that tenancy is no longer pressed. There was no surrender and/or forfeiture as alleged in the amended paragraph 13a of the plaint. 5. The contention that by the exparte decree dated the 11th May, 1956, Land and Bricks Ltd. had surrendered its tenancy under Raghuvanshi Private Ltd. and/or suffered a forfeiture of that tenancy is no longer pressed. There was no surrender and/or forfeiture as alleged in the amended paragraph 13a of the plaint. 5. THE learned trial Judge however held that there was collusion between Raghuvanshi Private Ltd. and Land and Bricks Ltd. in the matter of obtaining the exparte decree dated the 11th May, 1956 and that the plaintiff was not bound by the decree and on this finding decreed the suit. Raghuvanshi Private Ltd. had preferred this appeal from this decree. 6. HAVING regard to the charge that the decree dated the 11th May, 1956 is unreal and collusive it is necessary to bear in mind the transactions which according to the common case of the parties are real transactions. Beyond dispute the lease by the Official Trustee, West Bengal to Raghuvanshi Private Ltd. was a real lease. It is common case before us that the sub-lease by Raghuvanshi Private Ltd. to Land and Bricks Ltd. also was a real sub-lease. Counsel for the plaintiff made it plain before us that it was not his client's case that the sub-lease by Raghuvanshi Private Ltd. to Land and Bricks Ltd. was a sham or a collusive transaction. Paragraph 8 of the plaint specifically stated that at the time of the grant of the sub-lease Karsandas Khimji Popat represented to the plaintiff that the land had been let to Land and Bricks Ltd. by Raghuvanshi Private Ltd. Mr. Mukherjee made it plain before us that it is not his client's case that the plaintiff's real lesser was Raghuvanshi Private Ltd. and not Land and Bricks Ltd. The plaintiff's case is that the plaintiff is a sub-lessee under the Land and Bricks Ltd. who in its turn is a lessee under Raghuvanshi Private Ltd. It is also not the plaintiff's case before us that the notice to quit dated April 11, 1955 and given on behalf of Raghuvanshi Private Ltd. to Land and Bricks Ltd. was a sham or a collusive document or that the notice was not intended to be inoperative. No such case was made in the plaint, nor was any such case made in the argument before us. No such case was made in the plaint, nor was any such case made in the argument before us. Paragraph 11 (d) of the plaint stated that as a result of the searches made in the records the plaintiff's solicitor came to know that the tenancy of Land and Bricks Ltd. in respect of the land was determined by a notice to quit dated April 11, 1955. Paragraph 13 of the plaint raised the contention that the notice to quit had not in fact determined this tenancy. The plaint did not charge that the notice to quit had not in fact been served or that the notice was not intended to be operative. The contention that the notice had not in fact determined the tenancy is, of course quite untenable. The lease by Raghuvanshi Private Ltd. in favour of Land and Bricks Ltd. was a tenancy from month to month according to English calendar and such tenancy was plainly determined by the notice to quit expiring with the month of April, 1955. 7. THE fact that both the companies bad a common set of directors did not present the lesser company from serving a notice to quit to the lessee company. The common directorate did not bar the creation of the tenancy by the lesser company in favour of the other nor did it in any way debar the lesser company from terminating the tenancy so created or from instituting a suit for ejectment against the lessee company. The two companies were distinct legal entities and as such one of them could create a tenancy in favour of the other and on termination of such tenancy was entitled to institute a suit against the other company for ejectment. 8. NOW the notice to quit served by the lesser Raghuvanshi Private Ltd. upon the Land and Bricks Ltd. determined not only the lease by Raghuvanshi Private Ltd. in favour of the Land and Bricks Ltd. but also the sublease by Land and Bricks Ltd. in favour of the plaintiff. It is well settled that a valid notice to quit served by the landlord determines not only the lease, but also any under lease which may have been created by the lessee; see Sheikh Yusuf v. Jyotish Chandra Banerjee, (1) 35 C. W. N. 1132 at 1134-35. It is well settled that a valid notice to quit served by the landlord determines not only the lease, but also any under lease which may have been created by the lessee; see Sheikh Yusuf v. Jyotish Chandra Banerjee, (1) 35 C. W. N. 1132 at 1134-35. After the service of a valid notice to quit by the landlord on the lessee neither the lessee nor the sub-lessee had any right to remain on the land. The right of the plaintiff to remain on the land came to an end along with that of his lesser Land and Bricks Ltd. It is important in this case to bear in mind that the right of the plaintiff to remain on the land has been determined by the notice to quit dated April 11, 1955 and not by the exparte decree for ejectment subsequently obtained by Raghuvanshi Private Ltd. against Land and Bricks Ltd. Supposing that for some reason the exparte decree is pronounced to be not binding upon the plaintiff, even then the plaintiff will have no right to remain on the land. Having regard to the notice dated April 11, 1955 the plaintiff is a trespasser on the land. It follows, therefore, that the declaration made by the learned trial Judge that the plaintiff is still a tenant of Land and Bricks Ltd. cannot be sustained in any event. Land and Bricks Ltd. has now no interest in the land and consequently the plaintiff has now no interest in the land either as a tenant of Land and Bricks Ltd. or otherwise. 9. THE next question is whether the exparte decree for ejectment obtained by Raghuvanshi Private Ltd. against Land and Bricks Ltd. is binding upon the plaintiff. Land and Bricks Ltd. has now no interest in the land and consequently the plaintiff has now no interest in the land either as a tenant of Land and Bricks Ltd. or otherwise. 9. THE next question is whether the exparte decree for ejectment obtained by Raghuvanshi Private Ltd. against Land and Bricks Ltd. is binding upon the plaintiff. As the ground of ejectment was that a valid notice to quit had been served by Raghuvanhsi Private Ltd. on Land and Bricks Ltd. and if this notice effectively determined not only the lease but also the sub-lease, the decree for ejectment is binding upon the plaintiff sub-lessee and can be executed against him though he was not a party to the suit in which the decree was passed, unless he succeeds in showing that the decree was vitiated by fraud or that the lessee Land and Bricks Ltd. collusively suffered the decree to be passed against it, see Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarti, (2) 49 C. W. N. 133, 141. 10. THE learned Judge has not found that the exparte decree for ejectment dated the 11th May, 1956 was procured by fraud. Before us also learned counsel for the plaintiff did not pursue the case made in the plaint that the decree had been procured by Raghuvanshi Private Ltd. by fraud. The only question before us is whether the decree was procured by collusion between Raghuvanshi Private Ltd. and Land and Bricks Ltd. In Nagubai Amraal and Ors. v. Shama Rao and Ors., (3) 1956 S. C. R. 451 at 463, Venkatarama Ayyar, J., observed: "now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. 'collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose'. (Wharton's Law Lexicon, 14th Edition, page 212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. (Wharton's Law Lexicon, 14th Edition, page 212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practicing fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest." 14. The point in issue is whether the decree dated the 11th May, 1956 was passed in a collusive suit. Now a collusive suit is a suit instituted under a secret arrangement between the parties to the suit, that one of them should institute the suit against the other and obtain a decree for some sinister purpose. To satisfy the test of collusion, the secret arrangement for the institution of the suit must be for some sinister or improper purpose, see Kondi Ravji Fadtare v. Chunilal Rupchand Marwadi, (4) A. I. R. 1929 Bombay 1 at 5. The object of the collusive decree is to confound third parties. In a collusive suit the decree is fictitious and the contest is sham and unreal, see the Right Hon. The Earl of Bandon, v. Henry Becher, Esq. (5) Clark and Finnely's Reports, Vol. III, 479 at 511-6 E. R, page 1517 at 1529. Now the claim made by Raghuvanshi Private Ltd. against Land and Bricks Ltd. in the previous ejectment suit was not a fictitious claim. Raghuvanshi Private Ltd. had a genuine claim against Land and Bricks Ltd. for recovery of possession of the demised land on determination of the tenancy of Land and Bricks Ltd. by the notice to quit dated April 11, 1955. Raghuvanshi Private Ltd. had a genuine claim against Land and Bricks Ltd. for recovery of possession of the demised land on determination of the tenancy of Land and Bricks Ltd. by the notice to quit dated April 11, 1955. Various allegations other than service of the notice to quit were made in the plaint in that suit but those allegations were not material for the purpose of enabling Raghuvanshi Private Ltd. to establish its claim for recovery of possession against Land and Bricks Ltd. nor have those other allegations been found to be untrue by the learned trial Judge. The evidence of Vithaldas Bhimji Mansata (Q. 96-98, 717-723) and of Karsandas Khimji Popat (94-122) show that before the institution of the suit Mansata on behalf of Rarhuvanshi private Ltd. demanded vacant possession of the land in dispute from Popat representing Land and Bricks Ltd., that Popat proposed to deliver such possession and to do everything in his power to obtain vacant possession of the land for Raghuvanshi Private Ltd. But as the land was in the possession of the plaintiff, Land and Bricks Ltd. could not deliver vacant possession of the land to Raghuvanshi Private Ltd. and consequently Raghuvanshi Private Ltd. had no alternative but to file a suit for recovery of vacant possession of the land. It is true that Raghuvanshi Private Ltd. and Land and Bricks Ltd. had common directors. It is also true that Land and Bricks Ltd. was not averse to Raghuvanshi Private Ltd. recovering vacant possession of the land. These facts, however, did not debar Raghuvanshi Private Ltd. from instituting a suit for ejectment against Land and Bricks Ltd. Raghuvanshi Private ltd. had a real claim for recovery of the land in dispute; and it enforced that claim by instituting a suit against Land and Bricks Ltd. Land and Bricks Ltd. had no defence to the claim for recovery of the land by Raghuvanshi Private Ltd. and as such had no duty to the plaintiff sub-lessee to contest this suit. Land and Bricks Ltd. was not actuated by a sinister or improper purpose in not defending the suit. The decree was a real and not a sham one. Raghuvanshi Private Ltd. intended to execute the decree and to recover possession of the land for their own benefit. Land and Bricks Ltd. was not actuated by a sinister or improper purpose in not defending the suit. The decree was a real and not a sham one. Raghuvanshi Private Ltd. intended to execute the decree and to recover possession of the land for their own benefit. There was no arrangement between Raghuvanshi Private Ltd. and Land and Bricks Ltd. that the former would recover vacant possession of the land for the benefit of the latter. 11. RAGHUVANSHI Private Ltd. was not bound to make the plaintiff a party to previous ejectment suit. The object of Raghuvanshi Private Ltd. of course, was to get vacant possession of the land by ejecting the plaintiff sub-lessee in execution of the decree. But in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not impaled the sub-lessee as a party to the suit, the object of the landlord is, of necessity, to eject the sub-lessee from the land in execution of the decree. Such an object is quite legitimate. The decree passed in such a suit binds the sub-lessee and the landlord is entitled to eject the sub-lessee in execution of the decree passed against the lessee. Consequently, it cannot be said that Raghuvanshi Private Ltd. was actuated by a sinister or improper purpose in instituting the suit and obtaining the decree for ejectment against Land and Bricks Ltd. without impleading the plaintiff as a party to that suit. 12. EVEN if the plaintiff were made a party to the suit, he would have no defence whatsoever to the claim of Raghuvanshi Private Ltd. in that suit. There is a dispute between the parties as to whether the plaintiff was a thika tenant of the land under Land and Bricks Ltd. It is true that the plaintiff had erected a structure on the land but the construction was in contravention of the terms of his tenancy. There is a serious contention between the parties as to whether a tenant of vacant land can be said to be a thika tenant within the meaning of section 2 (5) of the Calcutta Thika Tenancy Act, 1949, in a case where the tenant erects structure on the land unlawfully in violation of the terms and conditions of the tenancy. There is a serious contention between the parties as to whether a tenant of vacant land can be said to be a thika tenant within the meaning of section 2 (5) of the Calcutta Thika Tenancy Act, 1949, in a case where the tenant erects structure on the land unlawfully in violation of the terms and conditions of the tenancy. In this appeal it is not necessary to determine the question whether the plaintiff ever became a thika tenant of Land and Bricks Ltd. It is plain that the plaintiff was not a thika tenant of Raghuvanshi Private Ltd. and the Calcutta Thika Tenancy Act, 1949 would afford no protection to the plaintiff in a suit for eviction instituted against him by Raghuvanshi Private Ltd. In Suit No. 142 of 1957 (Shamsuddin Ahmed v. Dinanath Mullick and Ors.) (6) decided by me on April 12, 1957 (unreported), I held that a sub-lessee of vacant land who was a thika tenant of the lessee was bound by a decree for ejectment obtained by the landlord against the lessee and that the landlord was entitled to recover possession of the land from the sub-lessee in execution of such a decree. In that case I observed:- "the question then arises whether the Calcutta Thika Tenancy Act has given a special or a statutory right of protection to the plaintiff. Reliance is placed by the plaintiff upon section 3 of the Calcutta Thika Tenancy Act. By that section a thika tenant is liable to ejectment from his holding on one or more of the grounds specified in that section and not otherwise. On a plain reading of that section I am satisfied that that section gives a thika tenant protection from ejectment or eviction at the instance of his landlord. This is implicit under section 3 having regard to the structure of the entire section and having regard, in particular, to the provisions of sub-sections (i), (ii), (iii) and (iv) of section 3. The plaintiff is not the thika tenant of the defendant Nos. 1 and 2. Section 3 of the Calcutta Thika Tenancy Act gives no protection to the plaintiff against eviction by the defendants Nos. 1 and 2. The plaintiff is not the thika tenant of the defendant Nos. 1 and 2. Section 3 of the Calcutta Thika Tenancy Act gives no protection to the plaintiff against eviction by the defendants Nos. 1 and 2. There is no provision either in the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 nor in the Calcutta Thika Tenancy act whereby it could be said that the plaintiff has become a direct tenant of the defendants Nos. 1 and 2. In my opinion the plaintiff is bound by the decree obtained by the defendants Nos. 1 and 2 against defendant No. 3." In this view of the matter I dismiss the suit instituted by the sub-lessee for a declaration that he was still a thika tenant and for an injunction restraining the landlord from obtaining possession of the property in execution of the decree for ejectment passed in favour of the landlord against the lessee. This judgment and decree was affirmed in appeal from original decree No. 123 of 1957 (Shamsuddin Ahmed v. Dinanath Mullick and ors., decided on August 13, 1959). 13. ASSUMING for a moment that the plaintiff was a thika tenant of Land and Bricks Ltd., the plaintiff had no protection against eviction in a suit for ejectment instituted against him by Raghuvanshi Private Ltd. Consequently, the plaintiff has in no way been prejudiced by the fact that he was not imp-leaded as a party to the previous suit. In the circumstances, the conclusion is irresistible that Raghuvanshi Private Ltd. had no sinister or improper purpose, in instituting the previous suit, in not impleading the plaintiff as a party to the suit and in obtaining the decree for ejectment against Land and Bricks Ltd. 14. IN my opinion, in all the circumstances mentioned above, the plaintiff has failed to establish that the decree passed in the previous suit was procured as a result of collusion between Raghuvanshi Private Ltd. and Land and Bricks Ltd. The cases relied upon by the plaint-tiff are all distinguishable. In Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarti, (2) 49 C. W. N. 133, the sub-lessee challenged a decree previously obtained by the landlord against the lessee as collusive. The important feature of the case was that the previous decree had been obtained by the landlord on the allegation that the head lease had been determined by a valid notice to quit. The important feature of the case was that the previous decree had been obtained by the landlord on the allegation that the head lease had been determined by a valid notice to quit. But the fact was that the head lease was a permanent tenancy and as such could not be terminated by the notice to quit. It fallowed that the head lease had not been effectively determined by a notice to quit or otherwise before the institution of the suit by the landlord. The head lease would have continued but for the decree. The landlord contended that the decree passed against the lessee bound the sub-lessee and that the sub-lessee could be ejected in execution of the decree. A Division Bench of this Court held that the sub-lease was bound by the decree unless it was shown that it was procured either by fraud or collusion. The lower court held that the decree had not been obtained by fraud or collusion but in coming to this conclusion it had omitted to notice various features of the case including the fact that the head lease was a permanent tenancy and could not have been lawfully determined by a valid notice to quit. The claim for ejectment could have been successfully resisted by the sub-lessee, had he been imp-leaded as a party to the previous suit. As the omission to consider the relevant matters amounted in an irregularity, the case was remitted for a fresh consideration of the question whether the decree had been obtained by fraud or collusion. It is to be observed that in the instant case prior to the institution of the suit by Raghuvanshi Private Ltd. the lease in favour of Land and Bricks Ltd. had been lawfully determined by a valid notice to quit. It is also to be observed that the omission to implead the plaintiff as a party to the previous suit did not cause any prejudice to him. Even if the plaintiff were imp-leaded as a party to the suit he would have no defence whatsoever to the claim of ejectment by Raghuvanshi Private Ltd. 15. IN Ram Saran Das v. Ram Perkash Das, (7) I. L. R. 32 Cal. 283, the mortgagee of a jote held by a tenant challenged a rent decree obtained by the landlord and a sale of the jote in execution of the decree as fraudulent and collusive. IN Ram Saran Das v. Ram Perkash Das, (7) I. L. R. 32 Cal. 283, the mortgagee of a jote held by a tenant challenged a rent decree obtained by the landlord and a sale of the jote in execution of the decree as fraudulent and collusive. It is plain that if the rent decree and the execution sale were collusive, the mortgage would continue to subsist on the land in the hands of the landlord. As the lower Appellate Court had dismissed the suit without going into the question of fraud and collusion, the High Court remanded the case for consideration of the question. This case was followed in Bhabhutmal Nathmal and ors. v. Khan Mohammed and ors., (8) A. I. R. 1946, Nag., 419, where certain rent decree obtained by the landlord and ejectments of the tenant from his occupancy holdings in execution of the decree were adjudged to be fraudulent and collusive and as such not to affect the right of the mortgagee of the occupancy holdings to enforce his security against the lands. In that case the Court found that the decree and ejectment were procured collusively in order to deprive the mortgagee of the benefit of his security under a secret arrangement that the tenant would be benefited as a result of the ejectment proceedings. The collusive rent decrees and ejectments were in reality voluntary surrenders by the tenant of his interest in the holdings in favour of the landlord. Consequently, the principle of section 115 of the Transfer of Property Act was attracted and the mortgagee of the occupancy holdings could still enforce his security against the lands. In the instant case the decree for ejectment dated the 11th May, 1956 does not amount to a surrender by Land and Bricks Ltd. of its interest in the land. The charge to that effect made in the amended paragraph 13a of the plaint has now been abandoned. Before the institution of the suit by Raghuvanshi Private Ltd. the interest of Land and Bricks Ltd. in the land had been effectively determined by a valid notice to quit and thereafter Land and Bricks Ltd. had no subsisting interest in the land which would be surrendered by the decree. Before the institution of the suit by Raghuvanshi Private Ltd. the interest of Land and Bricks Ltd. in the land had been effectively determined by a valid notice to quit and thereafter Land and Bricks Ltd. had no subsisting interest in the land which would be surrendered by the decree. I may add also that in the instant case there is no secret understanding between Raghuvanshi Private Ltd and Land and Bricks Ltd. to the effect that Land and Bricks Ltd. would receive some benefit as a result of the ejectment decree and the recovery of the land in execution of the decree. 16. ON an anxious consideration of the matter I have come to the conclusion that the plaintiff has failed to establish that the decree in Suit No. 3283 of 1955 was procured collusively. It follows that the plaintiff is bound by the decree in that suit. I have, therefore, come to the conclusion that the learned trial Judge wrongly decreed this suit. In my judgment the decree passed by the learned trial Judge should be set aside and the suit should be dismissed. In all the circumstances of the case I think that each party should pay and bear his or its own costs throughout. I, therefore, propose that the following decree be passed. The appeal be and is hereby allowed. The judgment and the decree passed by the learned trial Judge be and is hereby set aside. The suit be and is hereby dismissed. Each party will pay and bear his or its own costs throughout both in the trial court as also in this court. 17. THE operation of this order be and is hereby stayed for a period of ten weeks in order to enable Rupchand Gupta to make an application for leave to appeal to the Supreme Court.