NETAI CHANDRA DAS v. AMARENDRA NATH BANERJEE — 1993 DIGILAW 11 (CAL)

J. N. HORE, J. ( 1 ) -THIS second appeal by the defendants is directed against the judgment and decree dated 7. 3. 91 passed by the learned Additional District Judge, 9th Court, Alipore in T. A. 138 of 1990 affirming those passed by the learned Munsif, 4th Court, Alipore dated 28. 9. 89 in Title Suit 141 of 1977. ( 2 ) PLAINTIFF-RESPONDENTS instituted the said suit for eviction of the tenant-defendants and mesne profits contending inter alia that by a registered deed of lease dated 14. 8. 59 between the plaintiffs and the defendants the latter took lease and came into occupation of all that one-storeyed building with two R. T. sheds on the first floor roof being premises No. 72e, Harish Mukherjee Road within Bhowanipore P. S. as described in the schedule of the plaint for a period of 21 years commencing from 1. 8. 59 for residential purpose only on the terms and conditions embodied therein. Plaintiffs are owners of the said premises. At the time of commencement of the lease and also thereafter plaintiffs used to live at Allahabad as plaintiff No. 1 was in service there. After retirement of plaintiff No. 1 from service in 1975, plaintiffs had to return to Calcutta and live at Mahestala for want of accommodation in Calcutta. As they were in urgent need of accommodation in Calcutta, they repeatedly requested the defendants to make aver peaceful and vacant possession of the land in the western portion of the premises and the roof with 2 R. T. sheds as per term and condition of the lease so that they could construct rooms for their own use and occupation. But the defendants on one pretext or other delayed the matter. Therefore, a lawyer's notice dated 20. 7. 76 was sent to the defendants by registered post with A/d calling upon the defendants to deliver vacant possession of the said portion with the expiry of the month of August, 1976. Defendant No. 2 sent a reply to that notice refusing to comply with the said notice on false and frivolous grounds. As the defendants did not observe and perform the terms and conditions of the lease they committed breach of express conditions and/or covenants of the lease. Defendant No. 2 sent a reply to that notice refusing to comply with the said notice on false and frivolous grounds. As the defendants did not observe and perform the terms and conditions of the lease they committed breach of express conditions and/or covenants of the lease. They also caused breach of covenants of the lease by defaulting in payment of municipal taxes in respect of the demised premises and by defaulting in payment of rent from September, 1976 to January, 1977. So the plaintiff, again served a notice dated 1. 12. 76 forfeiting the lease for breach of covenants and intimating that the plaintiffs would re-enter the demised premises with the expiry of the month of January, 1977. But in spite of service of the said notice, the defendants failed and neglected to vacate the demised premises. ( 3 ) ON 24. 9. 82 plaintiffs filed a petition of amendment of the plaint to the effect that the lease which commenced on and from 1. 8. 59 for a term of 21 years expired on 31. 7. 80 and the lease having determined by efflux of time plaintiffs are entitled to recover of khas possession of the demised premises on that ground also. The amendment was allowed. ( 4 ) DEFENDANTS contested the suit contending inter alia that long after execution of the lease there was petition of the properties of the plaintiffs and their relations by virtue of which major portion of the suit property on the east fell in the exclusive share of plaintiff No. 1 and a small portion of the building on the western side together with the open land on the west fell in the share of plaintiff No. 2 and so one cannot claim the portion allotted to the other. The alleged breach of the terms of the lease was denied. The alleged reasonable requirement of the plaintiffs was also denied. It was alleged that the lease was drafted by the plaintiff's Advocate on their instructions alone and the defendants completely relied on the plaintiffs who represented to them that equity and justice would be done and as such they did not read and scrutinize the terms thereof but they now found that some terms and conditions embodied in the lease were very much prejudicial to them. Plaintiffs practiced fraud on them by inserting terms fraudulently with a design to circumvent and by-pass the W. B. P. T. Act. In the additional W. S. it was pleaded that the registered lease dated 14. 8. 59 was given a go-by by plaintiffs when they filed the instant suit terminating the lease by a notice to quit on the ground of forfeiture. So it cannot be said that the lease for 21 years expired during the pendency of the suit entitling the plaintiffs to get a decree for eviction of the defendants. ( 5 ) UPON consideration of the evidence the learned Munsif has held that the defendants are not defaulters in payment of rent and municipal taxes. He has, however, held that there was termination of the lease by forfeiture with due notice for violation of the express term of the lease that the defendants would make over the land on the west and the roof of the first floor with 2 R. T. sheds when required by the plaintiffs for their own occupation. He has also found that the lease also determined by efflux of time. He, therefore, passed a decree for recovery of khas possession of the suit-premises after evicting the defendants therefrom. He has not, however, considered the plaintiffs' claim for mesne profits. ( 6 ) IN the appeal preferred by the defendants, the plaintiffs also filed a cross-objection against the trial Court's failure to consider their claim for arrear rent and mesne profits. ( 7 ) THE lower appellate Court has affirmed the trial Court's finding that the lease was determined by forfeiture. At any rate, the lease determined by efflux of time and the defendant-appellants were not entitled to any protection from eviction. The lower appellate Court has, therefore, dismissed the appeal and affirmed the judgment and decree of the trial Court. The cross-objection filed by the plaintiff-respondents has also been allowed, and a decree for mesne profits has been passed tentatively for the amount on which C. fees have already been paid with a direction that the total amount of mesne profits would be determined in a a subsequent proceeding. Being aggrieved, defendants have preferred this second appeal. ( 8 ) MR. Being aggrieved, defendants have preferred this second appeal. ( 8 ) MR. Dasgupta, learned Advocate appearing on behalf of the appellants, has urged that in view of the right reserved to the landlord to terminate the lease by a notice to quit, the period of twenty one years purported to be fixed by the deed of lease is of no effect to bring the case within the ambit of Section 3 (1) of the West Bengal Premises Tenancy Act, 1956 and to take it out of the provisions of the said Act. In support of his contention he has referred to the decisions in Khuda Baksh v. Sheo Din, ILR 8 All 406; Ghasi Ram v. Malomy Club, AIR 1923 All 382; Lalchand v. Radha Ballabh, AIR 1959 Raj 240 and Nageswar Majumder and another v. Srimati Savita Dey, 96 Calwn 1205. ( 9 ) IN the Division Bench decision of the Allahabad High Court in Khuda Baksh v. Sheo Din (Supra) Mahmood, J. held that if a kabuliyat provided for ejectment at any time on the giving of a notice, any term in it with respect to the period of lease would fall to the ground. The same view was taken in Ghasi Ram v. Malomy Club (Supra ). In the Division Bench decision of the Rajasthan High Court in Lalchand v. Radha Ballabh (Supra) Wanchoo, C. J. (as his Lordship then was) relied on the decision of Mahmood, J. in Khuda Baksh's case (Supra) and held that if a kabuliyat fixed a period for the tenancy for a number of years and at the same time provided for ejectment of the leasee on notice at any time, the term of years fixed would fall through. ( 10 ) IN the Division Bench decision of this Court in Mahindra and Mahindra v. Kohinoor Debi, 1989 (1) CHN 1 at 11, this question has been adverted to, though not finally decided as not being necessary for the disposal of the matter therein. It has been observed in that case that there are authorities for the view that a lease, even though avowedly for a fixed term, would not be considered as such a term-lease if the same is determinable before its expiration at the option of the landlord and reference was made to the English decision in Morton v. Woods (LR 3 Queen's Bench 658 ). The Division Bench found good reasons for that view and pointed out that if a landlord while purporting to grant a lease for more than 20 years reserves to himself the unconditional right to determine the same at any point of time before the term fixed, the premises may not be regarded to be held under a lease for the term fixed for the purpose of section 3 (1) in order to go out of the provisions of the Act. The fixation of the period of lease in such a case may only be a camouflage and manoeuvre to evade the provisions of the West Bengal Premises Tenancy Act, not to be countenanced by the Court. ( 11 ) RELYING on the observations in Mahindra and Mahindra v. Kohinoor (Supra) and the decisions of the Allahabad High Court in Khuda Baksh v. Sheo Din (Supra) and in Ghasi Ram v. Malomy Club (Supra) and of the Rajasthan High Court in Lalchand v. Radha Ballabh (Supra) and in view of the clear right reserved to the landlord to terminate the lease by notice at any time after four years and two months from the commencement of the lease in July, 1964, which was so arranged for the adjustment of rent received in advance, the Division Bench of this Court to Nageswar Majumder v. Savita Dey (Supra) has held that the period of 21 years purported to be fixed by the deed of lease was of no effect to bring the case within section 3 (1) and to take it out of the provisions of the West Bengal Premises Tenancy Act. ( 12 ) MR. ( 12 ) MR. Saktinath Mukherjee, learned Advocate for the respondents has contended that unlike the cases referred to above there is no unfettered right of the landlord to terminate the lease any time before expiry of 21 years in this case and the only right reserved to the landlord to get back the vacant land on the west and the roof of the first floor with 2 R. T. sheds which is insignificant part of the demised premises only in case of requirement of the landlords for use and occupation by constructing rooms there without disturbing the enjoyment of the tenant of the substantial part of the premises during the entire period of 21 years cannot be construed as the unfettered right to terminate the lease itself and a camouflage and manoeuvre to take the lease out of the W. B. P. T. Act. ( 13 ) IN order to appreciate the respective submissions made on behalf of the parties and ascertain whether the decisions in the cases referred to above are applicable in this case, it is necessary to refer to the relevant provisions in the deed of lease (Ext. 2 ). At page 2 it is provided that the lease of the demised premises is for a term of 21 years commencing on and from the 1st day of August, 1959. Clause (c) at page 3 gives right to the lessee to sub-let for residential purpose the demised premises excepting the vacant land on the west and the roof over the ground floor with two R. T. sheds thereon. The reason for such exception would be clear from clause (iv) at page 5 which is most material for our purpose and is reproduced below :-" (IV) That the lessees will make over vacant possession of the open land on the west and the first floor roof with the two R. T. sheds of the demised premises, on the lessors requiring the same for their own use and occupation after giving one month's clear notice, of their intention to re-occupy the same. But the lessees will not be entitled to any abatement of rent for such partial delivery of possession of the demised premises. " ( 14 ) THE above would clearly show that the lessors have not reserved any unfettered right to terminate the lease of the demised premises before expiry of the term of 21 years. But the lessees will not be entitled to any abatement of rent for such partial delivery of possession of the demised premises. " ( 14 ) THE above would clearly show that the lessors have not reserved any unfettered right to terminate the lease of the demised premises before expiry of the term of 21 years. The only right reserved is that of re-entry in respect of an unsubstantial part of the demised premises, mainly vacant space, leaving the substantial part of the premises untouched in case the lessors require the same for their own use and occupation and it is for this reason the lessees were given no right to sub-let the same, though they were given right to sub-let for residential purpose the remaining portion of the demised premises. For such partial delivery of possession, there would be no abatement of rent. It is clear that the same lease would continue for the entire term with the same rent and other terms and conditions, though in a somewhat altered form. The lessees would have the right to have undisturbed possession and enjoyment of the demised premises subject to the above alteration. Clause (iv) cannot, therefore, be construed as a camouflage or manoeuvre to take the lease out of the purview of the West Bengal Premises Tenancy Act, 1956. As the lease is for a term of 21 years said as no unfettered right is reserved to the lessors to terminate the lease any time before the term of 21 years and as the same lease would continue for the entire term, though in altered and modified form, in the event of exercise of the right of lessors of re-entry in respect of an unsubstantial part of the demised premises without abatement of rent, I must hold that the decisions in the cases referred to above are not applicable in this case and that the period of 21 years fixed by the deed of lease brings the case within Section 3 (1) and takes it out of the provisions of the West Bengal Premises Tenancy Act, 1956. The appeal is, therefore, dismissed and the judgment and decree of the lower appellate Court are affirmed. I make no order as to costs in this appeal. Appeal dismissed.