India Steamship Company v. Brij Mohan Dalmiya — 1989 DIGILAW 295 (CAL)

JUDGMENT Hazari, J. This is a second appeal by the defendant against the judgment dated 1.7.85 of an Additional District Judge of Alipore in Title Appeal No. 818 of 1984 by which the learned Judge affirmed the judgment and decree dated 27.8.84 of the Subordinate Judge, 2nd Court, Alipore, in an Ejectment Suit being T.S. No. 121 of 1981. 2. The relevant facts in brief are as follows :- The premises No. 11B, Ballygunge Circular Road within the city of Calcutta belonged co the plaintiff's father, Gajananda, and the plaintiff's grand-mother, Indramoni (mother's mother). Those two owners by a registered lease deed dated 28.5.60 let out to the defendant, India steamship company Ltd., the first floor flat of the premises on certain terms and conditions, including payment of rents, for a period of 21 years effective from 1.6.60. This period of 21 years calculated from 1.6.60 expired on 31.5.81. 3. In 1963, i.e., during the subsistency of the lease, a Title Suit being T.S. No. 485 of 1963 in the Court of the Munsif at Alipore was brought by the defendant, lessee, against the lessor. That suit was, however, disposed of on the basis of a joint petition of compromise filed by the parties. In terms of the compromise petition, the defendant company, which was a lessee of the first floor flat of the premises No. 11B, Ballygunge Circular Road under the registered lease deed, was to shift to the second floor flat of the same building with some extra facilities. Monthly rent for a fes months was also varied and enhanced by the compromise petition. It was specifically mentioned in the compromise petition that all other terms and conditions as mentioned in the registered lease deed would be binding on the parties. But the compromise petition and/or the compromise decree was not, however, registered under the Registration Act. 4. Pursuant to the compromise above referred to, the defendant company shifted to the second floor flat and continued to pay rents and is still in possession thereof. 5. The period of the registered lease deed expired on 31.5.81, and in the meantime the premises in suit devolved upon the plaintiff, Brij Mohan Dalmiya, who thus stepped into the shoes of the original lessors. 5. The period of the registered lease deed expired on 31.5.81, and in the meantime the premises in suit devolved upon the plaintiff, Brij Mohan Dalmiya, who thus stepped into the shoes of the original lessors. On the expiry of the period of the registered lease deed, the plaintiff brought the Title Suit No. 121 of 1981 for eviction of the defendant from the second floor flat contending, inter alia, that the defendant was a lessee of the second floor flat in terms of the registered lease deed dated 28.5.60 as modified by the joint petition of compromise filed in T.S. No. 485 of 1963. The defendant company resisted the claim pleading that it was not bound by the unregistered compromise petition and that it was a monthly tenant in respect of the second floor flat and, therefore, its tenancy was governed by the West Bengal Premises Tenancy Act. 6. The trial Court found that the only modification of the registered lease deed sought to be effected by the compromise petition was with regard to the change of floor, and that other conditions in the registered lease deed were left untouched, and the essence of the registered lease deed was not at all changed, and, therefore, the compromise petition was not required to be registered. On this finding the trial Court decreed the suit against the defendant company. On appeal by the defendant the First Appellate Court (Additional District Judge) agreed with the views of the trial Court and affirmed the judgment and decree of the trial Court. 7. Mr. Anindya Mitra, learned Advocate appearing on behalf of the appellant defendant, submitted that the terms of the compromise decree have not been registered and as such the same is void and that though the defendant appellant has occupied the second floor in terms of the compromise petition, which is void and is of no effect, the acceptance of rent by the landlord bas created a monthly tenancy in favour of the defendant tenant. Therefore, the suit is not maintainable and is misconceived. It is submitted by Mr. Mitra that the possession of the defendant cannot be considered to be the possession by a licensee. It is submitted that it is impossible to conceive that the defendant lessee would surrender its lease for the purpose of reducing its status to that of a licensee in respect of the second floor. It is submitted by Mr. Mitra that the possession of the defendant cannot be considered to be the possession by a licensee. It is submitted that it is impossible to conceive that the defendant lessee would surrender its lease for the purpose of reducing its status to that of a licensee in respect of the second floor. It is submitted by Mr. Mitra that the lease was in respect of the first floor and not in respect of the second floor, and that since the terms of compromise are void, it cannot be said that the defendant appellant is occupying the second floor as a lessee. Mr. Mitra further submitted that the suit is based on the deed of lease and the ground for eviction is that the period of the lease has expired. But the registered lease is in respect of the flat on the first floor, while the plaintiff is seeking possession in respect of the flat on the second floor which is not the subject-matter of the lease. As such, it is submitted that the plaintiff is not entitled to a decree for eviction. 8. The compromise petition or the decree has not been registered. Therefore, it does not legally modify the registered lease. The modification of the registered deed of lease can only be made by a registered deed. The finding of the trial Court and the first appellate court that the compromise decree need not be registered is erroneous. This leads us to consider the question whether the defendant is entitled to resist the landlord's prayer for eviction simply on the ground that the registered lease, not having been affected by the unregistered compromise petition, cannot apply to the second floor flat. 9. Mr. Dasgupta, learned advocate appearing on behalf of the landlord respondent, submitted that the appellant was a party to the compromise petition and from the compromise petition it would be clear that the parries wanted to modify only the subject-matter of the lease and substitute second floor in place of first floor and that the intention of the parties was not to create a new tenancy in respect of the second floor but to substitute second floor in place of the first floor. The tenancy appellant shifted from the first floor to the second floor on the basis of the said compromise and enjoyed possession of the second floor on the basis of the said compromise and the solemn understanding between the parties. The intention of the parties was not to grant any other right to the tenancy appellant excepting the right to possess the second floor in place of the first floor during the period of the lease. The terms of the compromise were acted upon and the landlord respondent delivered possession of the second floor in lieu of the first floor in terms of the compromise petition, and since the appellant tenancy has enjoyed possession of the second floor during the period of lease in terms of the compromise petition, it cannot by the estoppel be allowed to fall back and claim any other right, title and interest in the second floor. It is submitted by Mr. Dasgupta that the conduct of the parties in the instant case is very material and if it is held that the compromise petition was void because the same was not registered then the defendant appellant could have only the right to remain in possession of the second floor under section 53A of the Transfer of Property Act, but only for the period covered by the registered lease. From the deed of lease and also from the terms of the compromise petition and the decree it is clear that the parties never intended to create a monthly tenancy in respect of the second floor and as such the question of monthly tenancy in respect of the second floor cannot arise. 10. It is clarified by Mr. Dasgupta that if the defendant has taken possession of the second floor pursuant to the void lease, the defendant at must can protect its possession thereof under section 53A of the Transfer of Property Act upto the period of the lease, i.e., 31.5.81 and the defendant must be deemed to have been in permissive possession during that period. The defendant company is in possession of the second floor under a void compromise decree. For that it cannot be said that the defendant appellant has acquired a tenancy right in respect of the second floor flat. The learned advocate relies upon the decision reported in (1) Technicians Studio Pvt. Ltd. v. Sm. The defendant company is in possession of the second floor under a void compromise decree. For that it cannot be said that the defendant appellant has acquired a tenancy right in respect of the second floor flat. The learned advocate relies upon the decision reported in (1) Technicians Studio Pvt. Ltd. v. Sm. Lila Ghosh and Ors., AIR 1977 SC 2425 , (2) Nishit Kumar Biswas v. Brocho & Co. Ltd., (1985)2 RCJ 650. 11. Mr. Anindya Mitra, learned advocate appearing on behalf of the appellant, submitted that the plea of permissive possession of the defendant appellant based upon section 53A of the Transfer of Property Act involves a question of fact or, in any event, a question of fact and law, and the same should not be allowed to be argued in second appeal for the first time. Mr. Mitra further submitted that the defendant's possession under a void lease and followed by payment and acceptance of monthly rents automatically creates a tenancy which is governed under the West Bengal Premises Tenancy Act. Learned advocate refers to the following decisions reported in (3) AIR 1941 Cal 33, (4) AIR 1965 Punjab 117, (5) AIR 1974 Punj &, Haryana 130, (6) AIR 1973 Cal 445, (7) AIR 1977 SC 1005 , (8) AIR 1952 SC 23 and (9) AIR 1980 SC 226 . 12. Mr. Dasgupta on behalf of the respondent submitted that the defendant appellant having subscribed to the terms of the compromise petition must be estopped from taking the plea of monthly tenancy on the principles of promissory estoppel. It is submitted that having enjoyed the possession in terms of the compromise petition and by subscribing to the compromise petition having induced the landlord respondent to part with possession of the second floor, the appellant cannot now fall back and say that the compromise petition is not binding and claim a monthly tenancy in respect of the second floor which was never the intention of the parties. Monthly tenancy is a subject-matter of contract. From the evidence and from the surrounding circumstances and from the terms and conditions of the compromise petition it is abundantly clear that no monthly tenancy was created either in fact or in law in respect of the second floor. Monthly tenancy is a subject-matter of contract. From the evidence and from the surrounding circumstances and from the terms and conditions of the compromise petition it is abundantly clear that no monthly tenancy was created either in fact or in law in respect of the second floor. The defendant appellant is now trying to fall back from the compromise petition and is trying to take an unjust and illegal stand of creation of a monthly tenancy which never existed either in fact or in law. 13. Mr. Anindya Mitra, learned advocate on behalf of the appellant submitted that the case of promissory estoppel has not been made out in the plaint. On the contrary, in the plaint the respondent has made out a case that the appellant tenant was holding the second floor flat in terms of the registered lease deed as modified by the subsequent compromise petition and the period of lease had expired which gave rise to the cause of action to file the suit. The case of possession by the defendant appellant under section 53A of the Transfer of Property Act and/or the case of promissory estoppel is not available to the respondent in this second appeal. It is submitted that these questions cannot be gone into by the second appellate Court and should not be taken up for consideration. 14. Mr. Dasgupta, on behalf of the respondent, submitted that the admitted position is that the respondent is the owner and the lessor, and the respondent filed the suit for eviction on the ground that after expiry of the lease the tenancy appellant was in possession without having any right, title and interest therein and as such the lessor was entitled to a decree for khas possession. Mr. Dasgupta high-lighted a very settled question that it was for the defendant to prove its right regarding its occupation in respect of the second floor, and if the defendant can satisfy that the defendant have any right, title or interest in respect of the suit premises, then only the plaintiff would not be entitled to a decree for khas possession. It is further submitted by Mr. It is further submitted by Mr. Dasgupta that the respondent is not raising any point and/or plea in terms of the provisions of section 53A of the Transfer of Property Act to strong then his case, but that only to explain the status of the appellant in respect of the second floor it was clarified that the only point which can be urged by the defendant is that the defendant's possession was protected under section 53A of the Transfer of Property Act. As the defendant came to possession with effect from 17.9.65 in terms of a void comprise decree, its possession could only be maintained under section 53A of the Transfer of Property Act. But after the expiry of the period of lease the defendant could have no right, title or interest to possess the same. This is not a plea which is taken by the respondent but this is a proposition of law which is applicable in the instant case, and the same may be considered by the court at any stage. 15. We have carefully considered the facts and circumstances of this case and we are of the opinion that the court can consider relevant points of law whenever such points are brought to the notice of the court and it is immaterial by whom and in what context such points are raised. Mr. Dasgupta referred to the case reported in Technicians Studio Pvt. Ltd. v. Sm. Lila Ghosh & Ors, AIR 1977 SC 2425 where it has been laid down that if a tenant is put into possession in terms of a void lease, he does not acquire any tenancy right in the property but enjoys protection under section 53A of the Transfer of Property Act, i.e., only right to defend his possession till the expiration of the period contained in such a void lease. It would be clear from the said decision that in such an eventuality neither the lessor could have the right to evict the lessee before the expiration of the period on the ground that the lease being void, the lessee became a trespasser nor the lessee would be able to contend that he had acquired either the right as a lessee or any other right, but he will have to vacate on the expiry of the terms and his period of occupation might be taken to be permissive occupation for the term without clothing himself with any other right under the law. The same view has been taken by the Division Bench of this Court in the case of Nishit Kumar Biswas v. Brocho & Co. Pvt. Ltd., (1985) 2 RCJ 650. It is further submitted by Mr. Dasgupta that in view of the concurrent findings by the two court below as well as the decision of the Supreme Court in the case of Technicians Studio Pvt. Ltd. v. Sm. Lila Ghosh & Ors. (Supra), and in the case of Nishit Kumar Biswas v. Brocho & Co. Pvt. Ltd. (Supra), there is no substance in the point raised on behalf of the appellant. 16. The whole question is with regard to the status of the person in occupation under a void lease (the appellant in this case) and the possible defence of such a person in an action for recovery of possession. We have carefully considered the matter and when this Court asked Mr. Anindya Mitra to explain the status of the defendant in respect of the second floor, the only answer to the query given by the tenant’s Counsel was that the suit is not maintainable in its present form and the suit should be dismissed as it is based on the deed of lease. After considering the facts and circumstances of this case, we are of the view that the appellant having taken advantage under the contract, i.e., under the terms of the compromise cannot have the right to turn by presenting a new case of a monthly tenancy. 17. The application of the doctrine of estoppel, in our view, cannot be avoided. The rule of estoppel, in the facts and circumstances of this case, is to be appreciated with reference to the compromise petition. 17. The application of the doctrine of estoppel, in our view, cannot be avoided. The rule of estoppel, in the facts and circumstances of this case, is to be appreciated with reference to the compromise petition. The solemnity of the transaction cannot but be regarded as an infallible method of establishing the fact that certain legal duties have been created. The lessee appellant and the landlord respondent, having agreed to bind themselves by an act of pecuniary importance and solemnity, must be held to be precluded from denying its effect. The compromise petition, in the facts and circumstances of this case, creates an estoppel by judgment. The compromise petition is intended to put a stop to litigation between the parties just as much as a judgment which emanates from the court after a matter has been fought out to the end. It will be very unfortunate if one were not to give a fair and reasonable interpretation to such judgments and were to allow questions that were really involved in the occasion to be fought over again in a subsequent action. This gives an instance of estoppel by agreement, and estoppel by a compromise is none the less an estoppel on a person by an agreement. 18. The parties came to an agreement which was accepted by the learned Munsif and the order passed by the learned Munsif on 17.9.65 was intended to operate as an order passed upon consent or agreement of the parties. Such a compromise petition having made finality of the suit will operate as an estoppel in a subsequent litigation between the parties. Such a compromise, justice requires, should be enforced. If the appellant is allowed to fall back from the terms of the compromise, them gross injustice will be done to the respondent. 19. We accordingly hold that even if the compromise petition is considered to be void for modification of the terms and conditions of the registered deed of lease, the fact remains that the appellant took over possession of the second floor under the terms of the compromise petition and the parties are bound by the compromise petition, by the principles of estoppel by agreement, estoppel by judgment, estoppel by conduct. In any view of the matter, the possession of the appellant in respect of the second floor cannot be said to be founded upon any right, title or interest therein after the expiry of the lease, i.e., with the expiry of 31.5.81. The suit filed by the landlord is a suit for possession. The admitted position is that the plaintiffs are the owners and lessors of the premises, and our finding is that the defendant have no right, title and interest in respect of the suit premises, i.e., the second floor after the expiry of the lease. The plaintiff is, therefore, entitled to a decree for khas possession. 20. In the result, the appeal falls and is hereby dismissed. We affirm the decree passed by the lower appellate Court, but on different ground explained in this judgment. In the facts and circumstances of this case, we do not make any order as to costs. Sengupta, J. : I agree.