SATYANARAYAN SAW MILL v. SATYANARAYAN BAGLA — 1992 DIGILAW 80 (CAL)

J. N. HORE, J. ( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Additional District Judge, 1st Court, Howrah in Title Appeal No. 24 of 1991 dated 27. 2. 82 reversing those of the learned Munsif, 5th Court, Howrah in T. S. No. 102 of 1979. ( 2 ) THE respondent instituted the said suit for ejectment of the appellant from the suit land, for arrears of rent and mesne profits upon determination of the tenancy by service of notice. The plaintiff-deities are the owners of the land comprised at premises No. 152/2, J. N. Mukherjee Road, Salkia, Howrah having an area of 11 cottahs and 11 chittaks. The plaintiff's case was that the defendant firm was a monthly tenant in respect of about 8 cottahs of the said land at a rental of Rs. 180/- per month payable according to English calendar months. The defendant and/or his predecessor had constructed pucca buildings of brick, cement and mortar on brick built walls and pillars including a three storeyed building in 1973 and C. I. sheds on pucca walls. The tenancy was governed by the Transfer of Property Act. The tenancy was determined by service of notice but the defendant did not comply with the notice. Hence the suit. ( 3 ) THE defends case is that the defendant is a Thika tenant and the tenancy is governed by the Calcutta Thika Tenancy Act and not by the Transfer of Property Act. ( 4 ) THE learned Munsif upon a consideration of the evidence on record has held that the defendant is a Thika tenant under the plaintiff in respect of the disputed land and the tenancy is governed by the Calcutta Thika Tenancy Act, and as such the suit is not maintainable and he has no jutisdiction to entertain the suit. He has accordingly dismissed the suit without deciding other issues. Being aggrieved, the plaintiff preferred appeal against the said judgment and decree passed by the learned Munsif being Title Appeal No. 24 of 198 1. The lower appellate Court has found that the defendant is not a Thika tenant and that the tenancy is governed by the Transfer of Property Act. Being aggrieved, the plaintiff preferred appeal against the said judgment and decree passed by the learned Munsif being Title Appeal No. 24 of 198 1. The lower appellate Court has found that the defendant is not a Thika tenant and that the tenancy is governed by the Transfer of Property Act. He has accordingly allowed the appeal setting aside the judgment and decree passed by the learned Munsif had sent back the case to the trial Court for deciding other issues and disposing of the case expeditiously according to law. Being aggrieved, defendant has preferred this second appeal. ( 5 ) A preliminary objection has been raised on behalf of the respondent that in pursuance of the remand order as passed by the lower appellate court the learned Munsif has already disposed of the suit by passing a decree for ejectment in favour of the respondent and. as such, the present appeal has become infructuous. The appellant has not preferred any appeal against the decree passed by the learned Munsif and it is contended that the decree passed by the learned Munsif after remand has, therefore, reached its finality and the present appeal has become infructuous. Mr. Mukherjee, learned Advocate for the appellant has contended, on the other hand, that the decree passed by the learned Munsif after the order of remand is subject to the result in this appeal which cannot be said to have become infructuous. In support of his contention he has referred to the Full Bench decision of this Court in Taleb Ali and Another v. Abdul Aziz and Ors. reported in AIR 1929 Cal. 689 and the Supreme Court decision in Shiromani Gurdwara Parbandhak Committee, Amritswar and Ors. v. Raja Shiv Ratan Dev Singh and Ors. AIR 1955 SC 576 Let me first consider this preliminary point raised on behalf of the respondent. ( 6 ) IT has been held in Taleb Ali's case (supra) that an appeal from a preliminary decree is not incompetent even if a final decree is made before the appeal is presented. Nor is it necessary for a party aggrieved by a preliminary decree to appeal both from that decree and against the final decree in order to maintain his appeal against the preliminary decree, although the final decree apart from its being based on the preliminary decree may otherwise correct. Nor is it necessary for a party aggrieved by a preliminary decree to appeal both from that decree and against the final decree in order to maintain his appeal against the preliminary decree, although the final decree apart from its being based on the preliminary decree may otherwise correct. In the case of Shiromanii Gurdwara Parbandhak Committee (supra), the Supreme Court has held that where the High Court after passing a final order has remanded the case to the trial Court for Proceeding in accordance with law and the decree of the trial Court after remand is ,passed between the date of an application for leave to appeal to the Supreme Court from the order of the High Court and the date on which the leave was granted by the Supreme Court, the decree of the trial Court even if not appealed against, must in the circumstances, be taken to be subject to the result of the appeal to the Supreme Court, and cannot be said to be conclusive so as to prevent the Supreme Court from dealing with the appeal and setting aside or modifying the judgment of the High Court and making 8 fresh order of remand to that Court itself. The facts of this case are the same. In this case, the present appeal against the judgment and order of remand passed by the lower appellate Court was preferred. Thereafter, the trial Court has passed a decree after remand as there was no order staying further proceedings of the suit after remand. Relying upon the decision of the Supreme Court, I must, therefore, hold that the decree passed by the trial court after remand must be subject to the result of this appeal and the fact that the present appellant has not preferred any appeal against the said decree, of the trial court after remand is of no consequence and that the present appeal has not become' infructuous. The preliminary point raised on behalf of the respondent must, therefore, fail. ( 7 ) LET me next consider if the finding of the lower appellate court, that the appellant's tenancy in respect of the disputed land is governed by the Transfer of 'property Act and that he is not a Thika tenant governed by the West Bengal Thika Tenancy Act, 1949 suffers from infirmity and can be sustained. ( 7 ) LET me next consider if the finding of the lower appellate court, that the appellant's tenancy in respect of the disputed land is governed by the Transfer of 'property Act and that he is not a Thika tenant governed by the West Bengal Thika Tenancy Act, 1949 suffers from infirmity and can be sustained. ( 8 ) ADMITTEDLY, Deoram Patel first took the tenancy of the land from the plaintiff. Deoram Patel raised structures on the suitland. There is no dispute that Deoram transferred his tenancy right and the structures constructed by him to Chunilal by a registered deed of transfer dated 30. 3. 68 (Ext. A ). The lower appellate Court has held that defendant Deoram cannot be said to be a successor of Chunilal. Referring to Ext. K, a letter addressed by Chunilal to the landlord on 1. 6. 68, the learned Judge has found that by this letter Chunilal merely informed the landlord that he had allowed his Cousin's son Deoram Pate1 to run a saw mill and earn his livelihood thereby on the suitland on and from June, 1968 and that he had no objection to get the tenancy transferred in the name of Deoram on fresh arrangement with the landlord direct, There is no mention that the tenancy sanding in the name of Chunilal was transferred in favour of Deoram or that there was transfer of the standing structures in favour of Deoram. But as the tenancy of the defendant Deoram is not disputed, the lower appellate Court has held that there was surrender of tenancy by Chunilal and a fresh tenancy was created in favour of defendant Deoram in respect of the disputed land burdened with structures which are of substantial nature and not kutcha structures and as such the defendant cannot be said to be a thika tenant in respect of the suit-land. It has further been held that the structures built by Deoram or Chunilal were not removed by Chunilal and these were standing on the suit-land when Deoram was inducted as a tenant. As a necessary Corollary the structures became the property of the landlord and Deoram is not Owner of the structures. ( 9 ) MR. Mukherjee has contended, and in my opinion rightly, that the lower appellate Court has made out a third case. As a necessary Corollary the structures became the property of the landlord and Deoram is not Owner of the structures. ( 9 ) MR. Mukherjee has contended, and in my opinion rightly, that the lower appellate Court has made out a third case. The decision of a case cannot be based on grounds outside the plea of the parties. It is the case pleaded which has to be found (Siddu Venkapap Devadiga v. Smt. Rangu S. Devadiga! and Ors. (1977) 3 SCC 532 ). It is not the case of the plaintiff or of the defendant that there was surrender of tenancy by Chunilal in favour of the defendant in respect of the suit land along with the structure standing on it. The plaintiff also does not claim that he is the owner of the structure standing on the suit land. The logical corollary of the findings of the lower appellate Court would be that the defendant is a premises tenant under the plaintiff and the tenancy is governed by the West Bengal Premises Tenancy Act, which is nobody's case. In view of the averments in the plaint, it was absolutely unnecessary to look into Ext. K or to enter into an enquiry as to how the defendant came to be a tenant. The defendant's ownership of the structures is not disputed in the plaint. It is also not disputed that Chunila1 and Deoram were predecessors of the defendant. The specific case in the plaint is that the defendant and/or his predecessor constructed pucca structures on the suit land and as such the tenancy is governed by the Transfer of Property Act and not by the Thika Tenancy Act. The plaintiff has also specifically admitted in his evidence that Deoram and Chunilal were predecessors of the defendant. We must, therefore, proceed on the footing that the defendant is the successor-in-interest of Chunilal both in respect of the tenancy and the structures. There is no dispute that the present structures. which according to the plaint were constructed in 1973 are pucca structures. After taking tenancy of the disputed land sometime in 1946, Deoram constructed some structures on the suit land. The real questjon for consideration is whether these structures were kutcha or pucca structures. There is no dispute that the present structures. which according to the plaint were constructed in 1973 are pucca structures. After taking tenancy of the disputed land sometime in 1946, Deoram constructed some structures on the suit land. The real questjon for consideration is whether these structures were kutcha or pucca structures. If Deoram raised kutcha structures on the suit land after taking tenancy from the plaintiff he would obviously be a Thika tenant within the meaning and definition of that expression in section 2 (5) of the Calcutta Thika Tenancy Act. Subsequent erection of pucca structures by the Thika tenant does not and cannot change the nature of the tenancy into one under the Transfer of Property Act. After Calcutta Thika Tenancy (Second Amendment) Act 1969 the Thika tenant can raise pucca structures with the permission of the Thika Controller. The unauthorised erection of the pucca structures by, a Thika tenant without permission of the Rent Controller may entitle the landlord to bring an action for removal of the unauthorised structure or for ejectment of the Thika tenant but the nature of the tenancy is not changed by subsequent erection of unauthorised structure. So the question of paramount importance in this case is whether the original tenant Deoram raised Kutcha structure or pucca structure on the suit land after taking tenancy of the suit land from the plaintiff in 1946. The lower appellate court has not considered this question at all. He has merely found that the present structures standing on the suit land are pucca structures. ( 10 ) THE trial court has considered the entries in the record (Ext. F), the recitals in the admitted document (Ext. A) and the assessment register from first quarter 1945-46 to fourth quarter 1949-50 (Ext. 5) Ext. 'a' describes the structure sold for Rs. 800/- only as kutcha structure. The lower appellate court was not justified in finding that this document is a collusive one. No such plea was taken by the plaintiff. On the other hand, the plaintiff admitted in his evidence that he acted on the basis of Ext. 'a. In the record of rights, the structure is described as tin shed for a factory. The assessment register referred to above (Ext. 5) shows that there was one C. I. open shed for saw mill and one C. I. small room. On the other hand, the plaintiff admitted in his evidence that he acted on the basis of Ext. 'a. In the record of rights, the structure is described as tin shed for a factory. The assessment register referred to above (Ext. 5) shows that there was one C. I. open shed for saw mill and one C. I. small room. It is clear that the structures raised by original tenant were kutcha structures. Deoram was, therefore, a Thika tenant in respect of the suit land and his tenancy was governed by the West Bengal Premises Tenancy Act and not by the Transfer of Property Act. The defendant being the admitted successor-in-interest of Deoram and Chunilal is a Thika tenant in respect of the suit land. The subsequent erection of pucca structures does not alter the nature of the tenancy and convert it into one under the, Transfer of Property Act. The trial court was, therefore, right in his conclusion that the tenancy of the defendant is governed by the Calcutta Thika Tenancy Act and as such he has no jurisdiction and he rightly dismissed the suit. ( 11 ) IN the result, the appeal is allowed. The judgment and order of remand passed by the lower appellate court are hereby set aside. The judgment and decree as passed by the trial court are restored. I make no order as to costs in this appeal. Needless to say that the subsequent decree passed by the trial court after the order of remand would be of no consequence and would be deemed to stand set aside. Appeal allowed.