KALYANI SEN v. SK. ENAYETULLAH — 1969 DIGILAW 263 (CAL)

ROY, J. ( 1 ) THESE two appeals arise from the same suit and the decree passed therein. They have been heard together. ( 2 ) FIRST Appeal No. 123 of 1957 is directed against the decree for khas possession of the suit premises on eviction of the defendants therefrom passed by the Second Court of the Additional Judge at Alipore in Title Suit No. 32 of 1956. This appeal has been preferred by Defendant No. 3 joining the plaintiffs as respondents and also joining the other two defendants as respondents. It may be mentioned here that the appellant Smt. Kalyani Sen, who was joined in the trial Court as the Defendant no. 3 during the pendency of the suit, is no other than the wife of D. C. Sen who was the Defendant No. 2 in the trial Court and is the Respondent No. 12 in this Court. ( 3 ) THE suit was originally filed by 10 plaintiffs who were the owners of the premises No. 51, N. Gorcha Road against two persons of whom the first defendant, P. S. Paul was the tenant who took settlement of the suit premises as a monthly tenant under the plaintiffs, and the other defendant was a person who according to the plaintiff has been given possession of the suit premises by the said tenant Sri P. S. Paul, in what capacity the plaintiffs did not know. The plaintiffs prayed for eviction and also for arrears of rent and also for damages on the rental basis for the period after the tenancy has been terminated by notice under Section 106 of the Transfer of Property Act. Ground for eviction was for default in payment of rent and also reasonable requirement of the suit premises by the landlords for their own use and occupation. The suit was contested by both the defendants who filed separate written statements raising different pleas. Those pleas were all negatived by the learned Subordinate Judge who has passed the decree and for the purpose the present appeals have lost their importance. In this appeal only one point has been urged which arose from certain events that happened during the pendency of the suit in the trial Court. Those pleas were all negatived by the learned Subordinate Judge who has passed the decree and for the purpose the present appeals have lost their importance. In this appeal only one point has been urged which arose from certain events that happened during the pendency of the suit in the trial Court. Those events are that when the suit was pending Smt. Kalyani Sen, wife of the Defendant No. 2 Dhiresh Chandra Sen, purchased the right, title and interest in the suit premises of the plaintiff No. 4, Msst. Ayesha Khatun, by a kobla dated September 4, 1953. Upon that purchase a petition was filed on behalf of the Defendant No. 2 on September 8, 1953, raising and objection that the remaining plaintiffs could not proceed with the case without impleading the said Kalyani Sen as a party in the suit. Thereafter, the suit was adjourned on December 15, 1953, the remaining plaintiffs filed an application stating the fact that the purchaser Kalyani Sen was none other than the wife of the Defendant No. 2 and was residing with the said Defendant No. 2 in the same premises and prayed that said Kalyani Sen be impleaded as pro forma defendant in the suit for the reason stated in para 4 of the application in these terms : that though the trouble by the plaintiff No. 4 was mas made during the pendency of the suit, yet to meet the objection of the defendant, it has become necessary to join the said purchaser Smt. Kalyani sen as a pro forma defendant, otherwise a controversy may be raised by the said defendant. The prayer of the plaintiffs for adding Kalyani Sen a party defendant to the suit was not objected to and by an order dated January 21, 1954, the learned Subordinate Judge added Kalyani Sen in place of the plaintiff No. 4 and transposed her to the category of pro forma defendant. ( 4 ) AT the trial, a point was raised by the Defendant No. 3 against the claim of the plaintiff for khas possession on the ground that since the institution of the suit she has become a co-sharer in respect of suit premises by purchase of the share of original plaintiff No. 4, Ayesha Bibi. ( 4 ) AT the trial, a point was raised by the Defendant No. 3 against the claim of the plaintiff for khas possession on the ground that since the institution of the suit she has become a co-sharer in respect of suit premises by purchase of the share of original plaintiff No. 4, Ayesha Bibi. On behalf of the plaintiffs it was brought to the notice of the learned Subordinate Judge that after her purchase of the said share of Ayesha Bibi the plaintiffs had filed a suit for pre-emption of that share of Ayesha Bibi under Section 4 of the Partition Act and they recovered a decree against the Defendant No. 3 on December 12, 1954. Against that a decree the Defendant No. 3 has preferred and appeal in the High Court which was pending when the present suit was being heard before the learned Subordinate Judge. The learned Subordinate Judge held that pendency of Kalyani Sen's appeal in the pre-emption suit was not an obstruction to the continuance of the suit for eviction because the learned Subordinate Judge was of the view that in the event of her success Kalyani Sen would be entitled to recover the possession of premises in her share by way of restitution. The learned Subordinate Judge also held that the Defendant No. 3 has only acquired the interest in the suit premises during the pendency of the suit and, generally speaking, the Court should not take any notice of it. On that view the learned Subordinate Judge passed a decree for khas possession of the suit premises on eviction of the Defendant Nos. 1 to 3 therefrom. ( 5 ) HE also passed a decree for arrears of rent against the Defendant No. 1, P. S. Paul, and also a decree for mesne profits at the rent rate till the recovery of possession against that defendant only. ( 6 ) AGAINST that decree for eviction and khas possession Kalyani Sen, the Defendant No. 3, has preferred Appeal No. 123 of 1957. Against the decree for arrears of rent and mesne profits the Defendant No. 1, P. S. Paul, has also preferred an appeal which is Appeal No. 176 of 1957. The two appeals have been heard together. ( 6 ) AGAINST that decree for eviction and khas possession Kalyani Sen, the Defendant No. 3, has preferred Appeal No. 123 of 1957. Against the decree for arrears of rent and mesne profits the Defendant No. 1, P. S. Paul, has also preferred an appeal which is Appeal No. 176 of 1957. The two appeals have been heard together. ( 7 ) ONLY point that has been argued on behalf of the appellant in First Appeal No. 123 of 1957 by the learned Advocate Mr. Padma Bindu Chatterjee is that the decree for eviction of khas possession of the suit premises in favour of the plaintiffs who are admittedly not sixteen annas share-holders of the suit premises which decree is also for eviction of Kalyani Sen, who is a purchaser of a fractional interest of the landlord, cannot be sustained. In support of that contention Mr. Chatterjee has referred to the decision arrived at in this Court in the appeal from the pre-emption suit that has been disposed of in 1961 by dismissing the appeal but making a remand order for varying the decree appealed from order directing that pre-emption decree would be made in favour of the plaintiffs on deposit of the price in 1961 instead of the market price in 1953. Since then that pre-emption suit is pending in the trial Court after remand and the plaintiffs have not taken any step and no decree for pre-emption has yet been passed in favour of the plaintiff. Mr. Chatterjee further sought to strengthen his contention by arguing that the title in respect of the share purchased by Kalyani Sen has remained in herself, that being so the decree for eviction of khas possession is a decree granted in favour of the plaintiffs who were not sixteen annas landlord and, what is more, the decree for eviction has been passed against Kalyani Sen, Defendant No. 3, who is still a co-sharer in the premises in suit and is not liable to be evicted. ( 8 ) MR. Nirmal Chandra Chakraborti appearing for the plaintiffs respondents has contended that the events that have happened during the pendency of the present suit should not be taken any notice of and the rights of the parties should be decided according to the cause of action at the date of institution of the suit. ( 8 ) MR. Nirmal Chandra Chakraborti appearing for the plaintiffs respondents has contended that the events that have happened during the pendency of the present suit should not be taken any notice of and the rights of the parties should be decided according to the cause of action at the date of institution of the suit. He has relied on the general principle that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. He has relied on a decision of Division Bench of this Court (Mookerjee and Beachcroft, JJ) in the case of (1) Rai Charan Mondal v. Biswanath Mondal, AIR 1915 Cal 103. The decision no doubt lays down that the general proposition is that all suit must be tried in all its stages on the cause of action as it existed at the date of commencement is an well-established rule which was recognised in (2) Radhya Koer v. Ajodhya Das, 7 Cal LJ 262 following the dicta of Lord Kingston in the judgment of the Judicial Committee of the Privy Council in the case of (3) Anandamoyee v. Shib Ch. , 9 MIA 287. That decision itself also lays down there are well-recognised exception to the general rule. In the judgment relied on by Mr. Chakraborti this exception has also been recognised and illustration of such exception has been mentioned in it when the interest claimed by the plaintiffs have been purchased by the defendant. The passage which is material for purpose of the present case reads thus: no doubt case are conceivable where the Court may have to stay the trial of the suit by reason of a devolution of the interest of one of the parties in favour of his opponent. For instance, if the interest claimed by the plaintiffs have been purchased by the defendants, the latter may fairly ask that the suit be stayed till the question of the validity of the sale in their favour has been finally determined. In the facts of the present case, that well-recognised exception to the general rule directly applies. It should have been proper for the learned Subordinate Judge if the plaintiffs so prayed to stay the trial of this suit for eviction till the question of the validity of the sale in favour of Sm. In the facts of the present case, that well-recognised exception to the general rule directly applies. It should have been proper for the learned Subordinate Judge if the plaintiffs so prayed to stay the trial of this suit for eviction till the question of the validity of the sale in favour of Sm. Kalyania Sen has been finally determined in the pre-emption suit. But the plaintiffs never prayed so; on the contrary on her prayer Kalyani Sen has been added as Defendant No. 3. Thereby the case has been brought directly within the exceptional case that by devolution interest of one of the plaintiffs has vested to a person who is the defendant in the suit, because that interest of the plaintiff No. 4 has been purchased by the Defendant No. 3. The decree passed by the learned Subordinate Judge presents the spectacle that a fractional owner of the landlord's title has been granted a decree for eviction of khas possession not only against the other Defendant Nos. 1 and 2 but also against the Defendant No. 3 who is still remaining a fractional owner of the landlord's title who is actually living in the suit premises. The plaintiffs had never prayed for a decree of eviction against Kalyani Sen as they could not have done as on their original cause of action against the plaintiff No. 4 where interest of Kalyani Sen now represents. Yet, the learned Subordinate Judge has passed the decree of eviction against Kalyani Sen also. Such a decree cannot be sustained. ( 9 ) MR. Chakraborti has drawn our attention to the circumstances under which the pre-emption suit is still remaining pending. In an affidavit it has been stated that after the appeal arising from the pre-emption suit was disposed of in this Court and the records were sent down to the Court below instead of carrying out the direction for modifying the decree the records were lodged in the record-room of the District Judge. Only recently the plaintiffs discovered that error by enquiry through an information slip. Mr. Chakraborty argued that the error in the Court's office has brought about the situation and that the plaintiffs should not suffer because of error of Court. ( 10 ) WE have considered those statements made in the affidavit which was filed at the close of his arguments and just before this judgment was delivered. Mr. Chakraborty argued that the error in the Court's office has brought about the situation and that the plaintiffs should not suffer because of error of Court. ( 10 ) WE have considered those statements made in the affidavit which was filed at the close of his arguments and just before this judgment was delivered. Those statements do not, however, fully explain the reasons why the plaintiffs who had contested the appeal in this Court and knew of the directions given for fixing the amount that the plaintiff need have to deposit in Court for getting a pre-emption decree, for long eight years did not take any step either to draw the attention of the Court below to those directions, nor did they show any interest to obtain in their favour the decree as modified under those directions. Whatever the reasons, the fact remains that pre-emption suit has remained pending and Kalyani Sen's title by purchase has not been brought to an end by vesting it to the plaintiff by exercise of right of pre-emption. The circumstances asserted in the affidavit, therefore, do not make any difference in law. ( 11 ) EVEN applying the principles that the suit should be decided on the original cause of action the present plaintiffs cannot be contemplated to have any cause of action against and right to get a decree for eviction of their co-sharer plaintiff No. 4. That plaintiff No. 4 Ayesha Khatun has been transferred to the category of pro forma defendant. The purchaser of her share in the suit property has been added as the Defendant No. 3 whose title by that purchase is still subsisting until finality is reached in the pre-emption suit. In such circumstances, we hold that the plaintiffs have no right, even on the original cause of action, to get a decree for khas possession of evicting the Defendant No. 3 from the suit property. ( 12 ) ON the original cause of action the plaintiffs are entitled to a decree for eviction against the Defendant Nos. 1 and 2. But, they are not entitled to a decree for eviction and khas possession against the Defendant No. 3 in this suit until the contesting claim between the plaintiffs and the Defendant No. 3 has been finally settled in the suit for pre-emption which is remaining pending after remand. For the appellants Mr. 1 and 2. But, they are not entitled to a decree for eviction and khas possession against the Defendant No. 3 in this suit until the contesting claim between the plaintiffs and the Defendant No. 3 has been finally settled in the suit for pre-emption which is remaining pending after remand. For the appellants Mr. Chatterjee has pressed the point for contending that in such circumstances the entire decree should be set aside and the suit should be dismissed as a whole. We do not agree with that contention. In our view, in the particular facts of the case proper decree can only be a decree for eviction against the Defendant Nos. 1 and 2 granting the plaintiffs a decree for joint possession of the premises with the Defendant No. 3 leaving it to the plaintiffs to work out their further rights in the pre-emption suit or by a suit for partition. In that view, we find strong support in a decision of a Division Bench of this Court (Rankin, C. J. and M. N. Mookerjee, J.) affirming the judgment delivered by D. N. Mitter, J. in Second Appeal No. 1269 of 1926 (unreported ). Rankin, C. J. in delivering that judgment of the Division Bench has said: a theoretical and highly important question is raised as to whether or not a co-sharer can maintain a case of trespass in the absence of other co-sharers against the trespasser so as to get an order of eviction as distinct from an order of joint possession of the trespasser, that is, a matter which has long been considered in this Court. The possession as regards the execution of such an order and the possession as regards the theory of the matter being in practice done in this Court dealt with by giving decree for joint possession together with the trespasser and leaving it to the plaintiff to work out their further rights by a suit for partition. I do not think anything unusual in the form of the decree. I do not think anything unusual in the form of the decree. ( 13 ) BY referring tothejd of Mitter, J. in Second Appeal No. 12690 of 1926 which writ application upheld in L. P. A. No. 104 of 1928, we find that Mitter, J. took that view upon elaborate discussion of authorities cited before his Lordship in support of contrary view and following the majority view in the case of Deo Hellyer v. King (6 Exch. 791) expressed by Bevan Parks and Bevan Alderson in preference to the minority view expressed by Bavaen Plattle Law clearly laid down there is that the plaintiffs who have fractional title in common with other persons are not entitled to a verdict for the purpose of recovering possession of the whole of the premises though they might recover less, i. e. only to the extent of their own share in the property. ( 14 ) WE respectfully agree with that view of law which the learned Chief Justice has formulated as a practice followed in this Court both as regards execution and as regards the theory of the matter. ( 15 ) WHAT has been held to be good law in cases of recovery of possession against trespassers, apply fully and with greater force in the present case where possession is sought to be recovered from not merely the Defendant Nos. 1 and 2 who are trespassers after termination of the tenancy but also against the Defendant No. 3 who is a co-sharer of the plaintiffs. The plaintiff No. 4, Ayesha Khatun is not with the plaintiffs and has no title to the property to enable her (and she does not) claim khas possession. On the contrary, the Defendant No. 3, who has purchased 27/528 share is in the category of the defendants. She is not only supporting the plaintiff's claim but also she is opposing their claim to get khas possession of the whole property. So long as her title has not been extinguished, she cannot be evicted. The plaintiffs even on their original cause of action are entitled only to declaration of their title to the extent of 501/528 share and decree for joint possession of the property with the Defendant No. 3. So long as her title has not been extinguished, she cannot be evicted. The plaintiffs even on their original cause of action are entitled only to declaration of their title to the extent of 501/528 share and decree for joint possession of the property with the Defendant No. 3. ( 16 ) WE, therefore, allow the Appeal No. 123 of 1957 and modify the decree for eviction and khas possession by limiting it only against the Defendant Nos. 1 and 2 and set it aside against the Defendant No. 3 and altering it to a decree for joint possession with the said Defendant No. 3 in favour of the plaintiffs respondents to the extent of 501/528 share. In the circumstances of this case, we do not award any costs in the Appeal No. 123 of 1957. ( 17 ) THE other Appeal, F. A. No. 176 of 1957, is against that part of decree by which arrears of rent and mesne profits has been decreed against the Defendant No. 1, P. S. Paul. Appearing for that appellant P. S. Paul the learned Advocate Mr. Amarendra Nath Mitra has contended that the decree against his client should be set aside also. That was the contention in which Mr. Mitra supported the argument raised by Mr. Chatterjee for the appellant in the other appeal and pressed for setting aside of the entire decree and dismissing the suit as a whole. For the reasons we have mentioned already we do not agree with that contention. On a consideration of the entire evidence of this case we uphold the finding of the learned Subordinate Judge and agree with his conclusion that the Defendant No. 1, P. S. Paul, is liable for the arrears of rent upto the date of the suit. They are also entitled to mesne profits at the rent rate upto the date on which Kalyani Sen purchased 27/528 share in the suit property which belonged to the plaintiff No. 4, Ayesha Khatun (since transposed as pro forma defendant) from the date upto the date of the decree. The present plaintiffs are entitled to proportionate mesne profits calculated the rent rate in their shares in the property. With that modification we uphold the decree for money passed against the Defendant No. 1, P. S. Paul, F. A. No. 176 of 1957 is, therefore, dismissed with the modification of the decree above mentioned. The present plaintiffs are entitled to proportionate mesne profits calculated the rent rate in their shares in the property. With that modification we uphold the decree for money passed against the Defendant No. 1, P. S. Paul, F. A. No. 176 of 1957 is, therefore, dismissed with the modification of the decree above mentioned. In that appeal also there will be no order as to costs. Bagchi, J. : I agree. Appeal is allowed.