Sailendra Nath Mukherjee v. Stewart — 1983 DIGILAW 15 (CAL)

JUDGMENT 1. THESE two appeals-from appellate decree are at the instance of the defendant and arise out of two suits for declaration of title and for permanent injunction. The two suits having been heard analogously were dismissed by the learned Subordinate Judge, 3rd Court Alipore, but were decreed on appeal by the learned Additional district Judge, 2nd Court, Alipore, who reversed the decision of the learned subordinate Judge. It would be necessary to refer to certain material facts to appropriate the points raised and such facts may be set out briefly as follows: 2. BY a registered indenture dated December 22, 1913, the predecessor in interest of the present defendant granted lease in respect of premises No. 37/38 (since renumbered 38/1), Panditya Road, p. S. Ballygunge, District - 24 Parganas. The lease covered an area of 7 big has and odd together with all buildings and structures standing thereon. Under the terms of the lease the lessees were to maintain some of the structures belonging to the lessor including a go down but they were entitled to raise further or other structures which, however, will vest in the lessor at the expiration or sooner determination of, the- lease. The lease was for a term of 50 years computing from January 1, 1915. The lessees were four persons carrying on business in co-partnership. By a similar indenture dated January 31, 1919, the same lessors granted lease of premises No. 37/1, and 38, Parditiya Road (since renumbered as 37 and 38) together with all buildings and other structures standing thereon for a period of 46 years and 3 months to the same lessees. Under the terms of the lease the lessees were entitled to demolish all structures standing on the premises so demised but it was agreed that at the expiration or sooner determination of the lease all buildings and fixtures erected by the lessees would vest in the lessor. 3. ON December 17, 1919, an agreement was made and signed between the said four lessees and Stewart and Company Limited, a company incorporated under the companies Act (present plaintiff), whereby it was agreed that the lessees who were carrying on business in partnership would sell the business and transfer all the assets of the firm with effect from December 31, 1919, to the said Stewart and Company Limited. The agreement provided that the lessees would sell and the Company would purchase with effect from December 31, 1919, the goodwill of the business, the leasehold properties of the firm machinery, office furnitures etc., and all the assets of the firm. Under this agreement stewart and Company Limited entered into possession of the two leasehold premises above referred to and began to carry on business though no separate deed of transfer was executed as between them. The lessors, however, treated the Company as their tenant and accepted rents from them. 4. C. Mackertich (the present defendant) the successor-in-interest of the lessors instituted two suits, being Title suit Nos. 30 and 31 of 1963 for eviction of Stewart and Company Limited from the said two premises on the ground of default in the matter of payment of rent from May 1952 to March 1953. The suits were instituted under the provisions of West Bengal Premises Rent Control Act, 1950, then in force. These suits were contested by Stewart and Company Limited on the ground that the leases were governed by Transfer of Property Act, and not by West bengal Premises Rent Control Act, 1950, and on the terms of the lease they were not liable to be evicted before the expiry thereof. 5. BY a common judgment delivered in the two suits the learned Subordinate judge, 2nd Court, Alipore, decreed both the suits. The learned Subordinate Judge overruled the defence raised on behalf of Stewart and Company Limited,on the view that when the original lessees transferred the leasehold properties to the Company on the basis of an agreement without executing any registered deed of transfer, the Company acquired no right, title and interest in the leasehold properties. The original leases being surrendered by the original lessees, monthly tenancies were created by payment and acceptance of rent between the Company and the lessors. The decision of' the learned Subordinate Judge was upheld by the Supreme Court (vide A. I. R. 1970 S. C. 839). 6. THE judgment of the Supreme Court having been delivered on October 14, 1969, Stewart and C6mpany Limited, filed the suits out of which the present appeals arise on November 14, 1969. These are Title Suit Nos. 121 and 122 of 1969 of the 3rd Court of the learned Subordinate Judge at Alipore. 6. THE judgment of the Supreme Court having been delivered on October 14, 1969, Stewart and C6mpany Limited, filed the suits out of which the present appeals arise on November 14, 1969. These are Title Suit Nos. 121 and 122 of 1969 of the 3rd Court of the learned Subordinate Judge at Alipore. By filing the aforesaid two suits, the plaintiffs claimed declaration of their title in respect of the buildings and structures standing on the three premises, 37, 38 and 38/1, panditiya Road (all covered by the two decrees for eviction referred to herein before) and also for an injunction restraining C. Mackertich, the defendant (that is, the decree holder) not to interfere with their right to these structures until the plaintiffs are able to remove the same. According to the plaintiffs they are the owners of all buildings and structures standing on those premises partly by purchase from the original lessees and partly by their own construction. The two decrees obtained by the defendant in the ejectment suits relate to the land only so that the plaintiffs' right, title and interest in the buildings and structures remain unaffected by the decree and they are entitled to remove the same. But since a part of the building is under requisition by the Government and the other part I, in the occupation of different sub-lessees, the plaintiffs are not in a position to remove those buildings and structures forthwith but since the defendant is taking steps for taking possession in execution of the decrees for eviction, the plaintiffs should be given reasonable opportunity to remove the structures by declaring their title thereto and by granting an injunction as prayed for. The learned Subordinate Judge in dismissing these two suits held in the first place that the suits are not maintainable being barred both by the principles of constructive res judicate and by section 47 of the Code of Civil Procedure. So far as the merits of the claim are concerned, the learned Subordinate judge held that the evidence adduced by the plaintiffs fails to establish the identity of buildings and structures raised by them and, as such, even if they are entitled to lay a claim for declaration of title as prayed for, such a declaration could not be given for want of identification. 7. 7. PLAINTIFF Stewart and Company Limited preferred two appeals and the learned Additional District Judge on March 4, 1982, in allowing the appeals overruled the learned Subordinate Judge on all the points held against the plaintiffs. According to the learned Additional district Judge, the suits as framed are maintainable. He further held that all the buildings and structures that are now on the disputed premises belong to the plaintiffs and since under section 108 (h) of the Transfer of Property Act the plaintiffs are entitled to remove the structures, they are entitled to have a declaration as prayed for as also for an injunction to afford them a reasonable opportunity to remove those structures. The learned Additional District Judge therefore, decreed the suits and declared that the plaintiffs have right, title and interest in the structures and the plaintiffs were given a year's time to remove the same and the defendant was restrained from interfering with exercise of such right by the plaintiffs within the time so specified and the defendant was further directed to afford all facilities to the plaintiffs for removal of structures and buildings from the disputed premises. 8. FEELING aggrieved, the defendant the decree holder in Title Suit Nos. 30 and 31 of 1953 has preferred the present two appeals. Having heard the learned advocates for the parties in these two appeals we are unable to sustain the decision of the learned Additional District Judge. Though we may not agree with the learned Subordinate Judge that the claim as put forward in these two suits can be said to be wholly barred by principles of constructive res judicata as observed by him, we cannot but agree with him that the suits as framed are not maintainable. Reading the plaints in their substance, it appears clear to us that the plaintiffs who are admittedly the judgment debtors in the ejectment suits have proposed to raise a dispute that the buildings and structures standing on the disputed premises are not covered by the decree for eviction and that they have a right to remove them particularly in view of the provisions of section 108 (h) of Transfer of Property Act. They have further claimed that since they have such a right they must be furnished a reasonable opportunity to effect such removal and until such an opportunity is given to them there should be an injunction against the defendant decree holder which would really amount to an injunction restraining the decree holder from executing the decree. There can be no doubt that first of the aforesaid two questions relates to execution, discharge and satisfaction of the decree because it is the court executing the decree which alone is to determine what is the extent of the property covered by the decree. If the buildings and structures are not cohered by the decree which remain the property of the judgment debtor but such a right of the judgment debtor is disputed by the decree holder, the dispute can be adjudicated by the court executing the decree and any separate suit for adjudication of such a dispute clearly comes within the prohibition of section 47 of the Code (see Ramanna v. Nallaparaju A. I. R. 1956 S. C. 87). 9. SO far as the other question raised is concerned, even if we assume that the plaintiffs judgment debtors are entitled under section 108 (h) of the Transfer of Property Act to remove the existing buildings and structures built by them, they are to do it before deliver of possession. What reasonable time is to be given to them to remove such buildings and structures is for the court granting the decree for eviction to determine. It is beyond our comprehension how a court other than the court passing the decree or executing the same can either stay the execution thereof or extend the time to vacate the premises in respect of which there has been a decree for eviction. For any other court to do so is either to alter or amend the decree or usurp the function of the executing court. In the present case the learned Additional District Judge failed to appreciate that the plaintiffs are the judgment debtors. It is not their case that the decrees for eviction are void or nonest. Nor is it their case that they not-being parties to the suits for eviction are not affected thereby. Hence both the questions proposed to be raised by them could not have been raised in independent suits. It is not their case that the decrees for eviction are void or nonest. Nor is it their case that they not-being parties to the suits for eviction are not affected thereby. Hence both the questions proposed to be raised by them could not have been raised in independent suits. It appears to us that the learned Additional District Judge was carried by the idea that when section 108 (h) confers a right upon the judgment debtor to remove his structures, he must be given a reasonable opportunity to do so. But he failed to appreciate that under the terms of that provision itself the judgment debtor is to do so before possession is taken and what reasonable time the judgment debtor should be given to remove himself is to be determined by the court granting the decree for eviction and not by any other court on an independent suit. For these reasons we are in entire agreement with the learned Subordinate Judge that the two suits as framed were not maintainable and should be dismissed as such and the contrary view taken by the learned Additional District Judge is clearly erroneous in law. 10. SO far as the other reason given by the learned Subordinate Judge is concerned, it appears to us that there too the learned Subordinate Judge was right in his conclusion that even if the plaintiffs be entitled to claim declaration of their title to the buildings and structures, on the evidence led it is difficult to give them that declaration for want of identification. We have referred to the two leases of 1913 and 1919 herein before. Such leases were in respect of the two premises together with such buildings and structures as they were in existence then. The four lessees under the terms of leases were no doubt entitled to demolish most of such -buildings and structures excluding a few, namely, go down and certain structures on premises No. 38jl, Panditiya Road. Even according to the, plaintiffs and the agreement in their favour executed by the original lessees some buildings and structures were raised by these lessees. Those lessees purported to convey the same to the plaintiff Company but the said transfer failed in the absence of a registered conveyance. Even according to the, plaintiffs and the agreement in their favour executed by the original lessees some buildings and structures were raised by these lessees. Those lessees purported to convey the same to the plaintiff Company but the said transfer failed in the absence of a registered conveyance. In the ejectment suits the court held that when the plaintiff Company entered into, possession on the basis of the said agreement and continued to enjoy the said two premises on payment of rent, two monthly tenancies were created and the earlier leases stood surrendered. The effect of surrender would result in vesting of all the structures and buildings raised by the original lessees in the lessors because such was the term of the lease between them. Though we may agree with Mr. Roy, the learned advocate for the respondent that the evidence adduced in the present two suits, particularly the sanctioned plans and the balance sheets go to show that further structures were raised by the plaintiff Company, the evidence falls short to identity the buildings and structures so raised by the plaintiffs themselves. The learned Additional District Judge was proceeding upon an erroneous assumption that all the buildings and structures that were originally leased out were demolished and whatever was built was built the learned Additional District Judge by the original lessees or the plaintiffs further overlooked the fact that in view of the decrees in the ejectment suits it is now concluded between the parties that the original leases stood surrendered so that on that on the terms of those leases all the buildings and structures raised by the original lessees became a part of the lessor's estate when the monthly tenancies were created by payment and acceptance of rent in favour of the plaintiff Company. Though much reliance is placed by Mr. Roy on paragraph 3 of the plaint in Money Suit no, 6 of 1950 (Ext. 6) the admission made therein does not support the claim to all the structures and buildings now standing on the disputed premises as preferred by the plaintiff. For reasons aforesaid, we are unable to uphold the judgement and decree as passed by the learned Additional District judge. These appeals therefore, succeed and are allowed, the judgment and decrees passed by the learned Additional District judge being set aside we restore' those passed by the learned Subordinate Judge. For reasons aforesaid, we are unable to uphold the judgement and decree as passed by the learned Additional District judge. These appeals therefore, succeed and are allowed, the judgment and decrees passed by the learned Additional District judge being set aside we restore' those passed by the learned Subordinate Judge. There will be no order for costs in these appeals. 11. LET the preparation of formal decrees in these appeals be dispensed with. 12. LET this order be communicated to the court below as early as possible.