Indo Minerals v. Sashi Kanta Ruiya — 1999 DIGILAW 51 (CAL)

JUDGMENT Bhaskar Bhattacharya, J. Both the aforesaid second appeals were heard together as the points involved in both the appeals are same. 2. S.A. No. 331 of 1997 is at the instance of defendants in a suit for eviction and is directed against the judgment and decree dated November 19, 1990 passed by the learned Assistant District Judge, Alipore in Title Appeal No. 17 of 1989 thereby reversing those dated July 28, 1988 passed by the learned Munsif, Additional Court, Sealdah in Title Suit No. 68 of 1984. 3. The respondent no. 1 filed a suit for recovery of khas possession being Title Suit No. 56 of 1982 in the 2nd Court of learned Munsif, Sealdah against the appellants. The said suit was subsequently transferred to the Additional Court of Munsif, Sealdah and was renumbered as Title Suit No. 64 of 1984. 4. The case made out by the plaintiff was, inter alia, as follows:- (a) The father of the plaintiff took settlement of an area of land measuring 4 bigha 14 chitaks and 35 sq. ft. being back portion of the premises No. 105, Ultadanga Main Road by virtue of a registered deed of lease dated January 4, 1964 for 15 years commencing from January, 1964 and ending with December, 1978 from the owner of the land. By the said lease deed, the lessee was given right to induct sub-lessee. (b) The defendant no. 1 represented by its partners and defendant no. 2 in his personal capacity took settlement of 10 kottas of land within the lease-hold property which included 3 kottas of land to defendant no. 2 from the father of the plaintiff at a monthly rental of Rs. 400/- according to English calendar month as sub-lessee. (c) The defendants were defaulter in payment of rent and as such the father of the plaintiff filed a suit being Money Suit No. 28 of 1978 in the 10th Court of Subordinate Judge at Alipore for recovery of the arrear dues and the said amount was decreed on admission. 400/- according to English calendar month as sub-lessee. (c) The defendants were defaulter in payment of rent and as such the father of the plaintiff filed a suit being Money Suit No. 28 of 1978 in the 10th Court of Subordinate Judge at Alipore for recovery of the arrear dues and the said amount was decreed on admission. (d) After the expiry of the lease deed dated January 4, 1964 by efflux of time, the lessor therein filed a suit being Title Suit No. 26 of 1979 in the 2nd Court of learned Munsif, Sealdah for ejectment against the father of the plaintiff and the said suit was disposed of in terms of solenama submitted by the parties whereupon the lessor took possession of the entire land and structure and thereafter let out the entire land and structure to the plaintiff on February 1, 1979. (e) By virtue of the agreement and in terms of the solenama, the plaintiff became a lessee under the owner of the land which includes the land which was let out to the defendants by the father of the plaintiff. (f) In view of efflux of the lease deed dated January 4, 1964, the sub-lease of the defendants was determined by the father of the plaintiff by a notice dated October 2, 1978 with the expiry of November, 1978 and as such the defendant became trespasser after the expiry of the notice. (g) The defendants failed to deliver possession in favour of the plaintiff inspite of service of notice. Hence the said suit. 5. The defendants contested the said suit by filing written statement therein denying the material allegations made in the plaint and their defences were inter alia as follows:- (a) The plaintiff had no title or interest in the suit property and the defendants were the owners of the structure and as such were thika tenants in respect of the land beneath the structure. (b) The plaintiff not being the owner of the structure and the land, the question of taking possession did not arise. (c) After the promulgation of the Calcutta Thika Tenancy Requisition and Acquisition Act, 1981 ("Act") the defendants had become thika tenant under State of West Bengal. 6. (b) The plaintiff not being the owner of the structure and the land, the question of taking possession did not arise. (c) After the promulgation of the Calcutta Thika Tenancy Requisition and Acquisition Act, 1981 ("Act") the defendants had become thika tenant under State of West Bengal. 6. The learned trial Judge on consideration of the materials on record held that although the father of the plaintiff determined the sub-lease of the defendants, and the status of the defendants were that of trespassers but the plaintiff being not the owner or representative of the immediate lessor of the defendants was not entitled to maintain the suit for eviction. 7. Being dissatisfied, the plaintiff preferred an appeal being Title Appeal No. 17 of 1989 which was heard by the learned Assistant District Judge, Sealdah at Alipore and the learned Assistant District Judge by the judgement and decree impugned in the instant second appeal allowed the said appeal thereby granting a decree for eviction in favour of the plaintiff. 8. Being dissatisfied, the defendants have preferred the instant second appeal. 9. Mr. Banerjee, the learned advocate appearing in support of the instant second appeal has made fourfold submissions before this court. The first point taken by Mr. Banerjee is that the position of the appellants were that of a thika tenant under the then Calcutta Thika Tenancy Act, 1949 and as such a suit filed before the Civil Court was not maintainable. Mr. Banerjee next contends that in the absence of State of West Bengal the suit is not maintainable inasmuch as after the promulgation of the Act, the property vested in State of West Bengal. The further contention of Mr. Banerjee is that after the promulgation of the Act if any question arises in a Civil Court as to whether a person is a thika tenant or not, such dispute must be referred to the Thika Controller under Act and a Civil Court has got no jurisdiction to decide such question. Mr. Banerjee lastly contends that even assuming for the sake of argument but not conceding that the appellant is not a thika tenant, even then, the suit filed by the plaintiff is bound to fail because the plaintiff is admittedly not the owner of the suit property. A suit for recovery of possession from an alleged trespasser, Mr. Banerjee contends, must be filed by the owner thereof. 10. Mr. A suit for recovery of possession from an alleged trespasser, Mr. Banerjee contends, must be filed by the owner thereof. 10. Mr. Dasgupta, the learned advocate appearing on behalf of the respondents has on the other hand supported the judgement and decree passed by the learned first appellate court below and has refuted all the aforesaid contentions raised by Mr. Banerjee. 11. As regards the first submission of Mr. Banerjee, Mr. Dasgupta contends that in view of the fact that the lease created by the owner of the land in favour of the father of the plaintiff being limited to 15 years, and the defendants being a sub-lessee for the last seven years of the aforesaid period of 15 years, by virtue of the definition of thika tenancy appearing in Calcutta Thika Tenancy Act, 1949, the defendants cannot be thika tenants. The original lease being for a period exceeding twelve years, even the father of the plaintiff could not claim thika tenancy right over the property. The defendants being a sub-lessee under the aforesaid lease could not acquire better title than their immediate lessor. Thus, Mr. Dasgupta contends that such lease having expired prior to the coming into operation of the Act, at the time of enforcement of the Act, the status of the appellants were those of trespassers. 12. As regards the second point, Mr. Dasgupta contends that the appellant cannot be termed as thika tenant or other tenant within the meaning of Act as they were under no obligation to pay rent to anybody at the commencement of the Act under any agreement. Thus, there being no relationship of landlord and tenant between the appellants and any other person over the suit property, no question of acquiring tenancy right under the Act arises. Therefore, Mr. Dasgupta contends that the State of West Bengal is not at all a necessary party as the right of the owner of the land was not vested in the State of West Bengal. 13. As regards the third point, Mr. Dasgupta contends that under the Act, a Thika Controller is not authorised to decide whether a person is a thika tenant or not. Therefore, the jurisdiction of Civil Court has not been ousted. Mr. Dasgupta contends that in order to exclude the jurisdiction of the Civil Court specific provision must be incorporated in the Act itself showing the intention of the legislature. Mr. Therefore, the jurisdiction of Civil Court has not been ousted. Mr. Dasgupta contends that in order to exclude the jurisdiction of the Civil Court specific provision must be incorporated in the Act itself showing the intention of the legislature. Mr. Dasgupta by referring to various decisions contends that mere application of Chapter VII and VII(A) of West Bengal Land Reforms Act mutatis mutandis as indicated in section 25 of the Act does not exclude the jurisdiction of the Civil Court to decide a dispute as to whether a person is a thika tenant or not. 14. Mr. Dasgupta lastly contends that his client has filed an application before this court for taking note of subsequent event indicating that during the pendency of the instant second appeal Pynes, the admitted owner of the property, have sold their right, title and interest in the suit property in favour of the plaintiff and a xerox copy of such sale deed has been annexed to the said application. According to Mr. Dasgupta, after such purchase the plaintiff having acquired ownership to the property, the point raised by Mr. Banerjee as regards the locas standi of the plaintiff to maintain the suit is no longer available. 15. After hearing the learned advocates for the parties and after going through the materials on record I find that the instant second appeal can be disposed of on the basis of the fourth point raised by Mr. Banerjee. According to the plaint case, the father of the plaintiff as a lessee under the Pynes inducted the appellants as sub-lessee. The father of the plaintiff as P.W.2 admitted that he surrendered possession of the leasehold property to the Pynes with tenants thereby meaning that actual physical possession of the portion in occupation of the sub-lessee was not given to the landlord. Thus, thereafter when the landlords created fresh tenancy in favour of the plaintiff, such tenancy must be in respect of other portion than the portion in possession of the defendants. It is not the plaint case that the defendants also surrendered possession in favour of Pynes and thereafter dispossessed the owner and re-occupied the same. Therefore, it is apparent that after the expiry of the lease in favour of the father of the plaintiff, the lessor did not recover possession of the entire leasehold property. It is not the plaint case that the defendants also surrendered possession in favour of Pynes and thereafter dispossessed the owner and re-occupied the same. Therefore, it is apparent that after the expiry of the lease in favour of the father of the plaintiff, the lessor did not recover possession of the entire leasehold property. Law is now settled that an owner of a land cannot create a lease in respect of a property in favour of a person which is in occupation of an alleged trespasser. A lease is a transfer of a right to enjoy a property made for a specified time in lieu of consideration in cash or in kind as provided in section 105 of the Transfer of Property Act. In other words, a lease is the doctrine of separation of title and possession. Therefore from the materials on record it is clear that the Pynes could not create any fresh lease over the suit property in favour of the plaintiff. The fresh tenancy of the plaintiff was restricted to the portion which was physically surrendered by the father of the plaintiff. Therefore by virtue of fresh tenancy, the plaintiff acquired no right over the suit property and on the basis of the tenancy of the adjoining property could not maintain a suit for recovery of possession in respect of a property over which he had no title. 16. Therefore even if it is assumed for the sake of argument that the defendants were trespassers, it is for the owner of the land or any person having better title than the defendants to file a suit for recovery of possession. The plaintiff has not proved any batter title than that of the defendants over the suit property. 17. Therefore, the suit filed by the plaintiff is not maintainable for the reasons set forth above. 18. In view of my aforesaid finding, in my opinion, the other points raised by Mr. Banerjee are not required to be decided. All these points can be adjudicated only in a suit filed by the owner of the land. 19. As regards the application for taking note of subsequent event filed by the plaintiff before this court, in my opinion, such application cannot be considered before this court. Banerjee are not required to be decided. All these points can be adjudicated only in a suit filed by the owner of the land. 19. As regards the application for taking note of subsequent event filed by the plaintiff before this court, in my opinion, such application cannot be considered before this court. The plaintiff in the said application has stated that on December 4, 1992 he has purchased the right, title and interest in the suit property from Sm. Aloka Pyne and another. The plaintiff has not filed any application for amendment of plaint. In my opinion, if the statement made by the plaintiff is correct and if the vandors of the plaintiff had really title to the suit property on the date of execution of deed, in such a case, the plaintiff steps into the shoes of the owners and as such the plaintiff will acquire a new cause of action from the date of such purchase. If I allow the plaintiff to amend the paint that will require adjudication of a fresh cause of action as if the suit has been filed by the owners, a cause of action totally different from the one pleaded herein. Therefore the aforesaid application filed by the plaintiff cannot be allowed. I however make it clear that I have not gone into the question whether the plaintiff has really acquired any title to the suit property by virtue of such purchase and he is at liberty to file fresh suit on the basis of his alleged purchase. If such suit is filed the appellants are at liberty to take all available defences available to them in accordance with law. 20. The second appeal is therefore allowed. The judgement and decree passed by the appellate Court below are set aside and the decree passed by the trial Judge is restored. No costs. 21. S.A. No. 482 of 1996 is at the instance of one of the defendants in a suit for eviction and is directed against the judgement and decree dated January 14, 1992 passed by the learned Assistant District Judge, Sealdah in Title Appeal No. 14 of 1989 reversing those dated July 29, 1989 passed by the learned Munsif, 3rd Court, Sealdah in Title Suit No. 116 of 1980. The points involved in this appeal were similar to the above one with the difference that the defendants were different sub-lessees inducted by the father of the plaintiff. In view of my judgement delivered in the other appeal, I hold that the suit out of which the instant second appeal arises was not maintainable at the instance of the plaintiff for the same reason indicated above. Therefore the instant second appeal is allowed, the judgement and decree passed by the learned first appellate court are set aside. The suit filed by the respondent no. 1 is dismissed. 22. No costs. 23. Let two separate decrees be drawn up. Both the appeals allowed.