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2007 DIGILAW 519 (CAL)

RAMDAS BANSAL v. KHARAG SINGH BAID

2007-07-16

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2007
BHASKAR BHATTACHARYA, J. ( 1 ) THIS Letters Patent appeal is at the instance of a defendant in a suit for recovery of possession and is directed against the judgment and decree dated 11th April, 2005 passed by a learned Single Judge of this Court by which His Lordship passed a decree for recovery of possession of the suit premises and also mesne profits after allowing the prayer of the plaintiffs-respondents for rectification of the deed of lease. ( 2 ) THE respondents filed a suit being Title Suit No. 102 of 1994 against the appellant thereby praying for the following relief: (a) "decree for quiet, peaceful and vacant possession of the said property comprising of the demised premises described in the Schedule appended hereto and Marked - "a" and delineated in the Map or Plan annexed hereto and marked with the Letter - "b" and moveable Article particularized in annexure- "c" hereto forming part of the demised premises or in connection therewith as provided for and in terms of the said Indenture of Lease; (b) If necessary, the misdescriptions in the said Deed of Lease dated 19th september, 1972 be rectified so as to reflect the true intention of the parties as indicated in paragraph 7 hereof; (c) Decree for Rs. 13,05,000/- as mentioned in paragraph 18 above; (d) Further mesne profit at the rate of Rs. 7,500/- per diem or at such rate as to this Hon'ble Court may deem fit and proper; (e) Interim interest and interest on judgment; (f) Receiver; (g) Injunction; (h) Attachment; (i) Costs; (j) Further and other reliefs. " ( 3 ) THE case made out by the plaintiffs-respondents may be summed up thus: (i) The plaintiffs, six in number, were all the sons of one Chaganlall Baid who absolutely seized and possessed brick built messuage tenement or theatre house known as 'grace Cinema' with piece and parcel of land whereon and whereof the building measuring fifteen cottahs twelve chittacks more or less being a portion of 91a, Mahatma Gandhi Road and one room in the ground floor and open space in a portion of premises no. 6a, Sambhu Chatterjee Street as described in part one of the first schedule annexed to the plaint and was also possessed of all that the leasehold hereditaments and premises or Theatre House together with the piece and parcel of land whereon and whereof the same is erected measuring three cottahs three chittacks and thirty square feet more or less being the front portion of the premises No. 91a, Mahatma Gandhi road as mentioned in Part-II of the first schedule. (ii) The said Cinema House, more particularly described in paragraph 1 and Part-II of the first schedule, of the plaint was shown in the map or plan annexed thereto and marked with the Letter - "b" and was delineated in red colour boundary lines. (iii) The said Chaganlall Baid was further absolutely seized and possessed of all furniture, articles and assets etc. used in the said portion of the said premises and appertaining to the said Cinema Hall including the seats, cushions, chairs, galleries, electrical fittings, lights, fans and other fixtures etc. described in second schedule annexed and marked with the letter -"c". (iv) The said properties particularly described in Part-I and Part -II of the first schedule annexed and marked with the Letter- "a" and the second schedule marked with the Letter- "b" were effectively referred to as the suit property. (v) By six several deeds of settlements, all dated 15th January, 1956, the said Chaganlall Baid transferred and conveyed the suit property in favour of the plaintiff Nos. 1 and 2 with a direction upon them to hold the same for the benefit of the plaintiffs for the term mentioned therein. By those deeds of settlement, the plaintiff Nos. 1 and 2 were specifically empowered to lease out the property. (vi) On the said authority, by an Indenture of Lease dated 19th September, 1972, the plaintiff Nos. 1 and 2 granted unto the defendant a lease for a term of 21 years commencing from 1st November, 1972 on the terms, conditions and covenants therein contained and subject to payment of rent therein reserved. (vii) The said Indenture of Lease was duly registered and the defendant took possession of the said property as lessee thereof in terms of the provisions, terms and conditions contained in the said Indenture of Lease and were obliged to perform the terms, conditions, covenants and provisions contained in the said Indenture of Lease. (vii) The said Indenture of Lease was duly registered and the defendant took possession of the said property as lessee thereof in terms of the provisions, terms and conditions contained in the said Indenture of Lease and were obliged to perform the terms, conditions, covenants and provisions contained in the said Indenture of Lease. (viii) The said lease-deed dated 19th September, 1972 was signed, executed and registered by the parties namely, plaintiff Nos. 1 and 2 and defendant bona fide and with common belief that the same embodied the agreement set out in paragraphs 2 and 3 of the plaint, but in fact, the following misdescription crept in there by reasons of common mistakes: (1) Whereas the deed of lease mistakenly stated that the leasehold premises described in Part-I of the schedule to the said deed bore Municipal Premises no. 91, Mahatma Gandhi Road, the actual Municipal Premises number of the leasehold described in Part-I of the said schedule was portion of 91 A, mahatma Gandhi Road and one room in the ground floor and one open passage in a portion of premises No. 6a, Sambhu Chatterjee Street. (2) Whereas the deed of lease incorrectly stated that the leasehold premises described in Part-II of the schedule to the said deed contained by estimation an area of three cottahs and thirty square feet, the actual measurement of the said premises was three cottahs three chittacks and thirty square feet. (ix) On the expiry of the said deed of lease by a notice in writing dated 2nd march, 1993, the plaintiffs through their Advocates called upon the defendant to quit, vacate and deliver up peaceful and vacant possession of the said property and to hand over the same to the plaintiffs but in spite of receiving such notice and expiry of the said lease by efflux of time, the defendant failed to deliver vacant and peaceful possession. Hence the suit. ( 4 ) THE suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendant may be epitomised thus: (i) The suit was not maintainable either in law or on facts and at all material times, the defendant was a monthly tenant in respect of the properties situated at premises No. 91a, Mahatma Gandhi Road and portions of premises No. 6a, Sambhu Chatterjee Street under the plaintiffs. The said tenancy was all along governed by the West Bengal premises Tenancy act, 1956 and as such, the defendant was entitled to the protection against eviction from the suit premises as provided in the said Act. (ii) No ground as required under the said Act ever existed and at any rate, no notice under section 13 (6) of the said Act was given to the defendant and therefore, the suit was not maintainable. (iii) The suit was liable to be dismissed on the ground of vague pleading and the High Court had no pecuniary jurisdiction to try the suit. (iv) There was no common mistake appearing in the Indenture and the suit was liable to be dismissed, ( 5 ) AT the time of hearing of the suit, Kharag Singh Baid, the plaintiff No. 1 deposed in favour of the plaintiffs while the defendant himself gave evidence opposing the prayer of the plaintiffs. ( 6 ) AS indicated above, the learned Trial Judge by the judgment and decree impugned herein has passed a decree for eviction along with a decree for mesne profits with interest after rectification of deed of lease. ( 7 ) BEING dissatisfied, the defendant has come up with the present Letters patent appeal. ( 8 ) MR. Bachawat, the learned senior Advocate appearing on behalf of the appellant has attacked the judgment and decree passed by the learned Trial judge by raising three-fold submission. ( 9 ) MR. Bachawat contends that the decree passed by the learned Single judge was a vague one and incapable of execution. According to Mr. Bachawat, the description of the suit property as given in the plaint does not tally with the description given in the lease-deed and as such, the learned Single Judge erred in law in passing a decree in terms of the description given in the plaint as well as the one indicted in the deed of lease which are at variance with each other. Mr. Bachawat submits that in order to pass a decree for recovery of possession, the Court should see that there is specific description of the property given in the schedule annexed to the plaint and if the Court finds that the description is vague, no decree can be passed by leaving the matter to be decided by the Executing Court. ( 10 ) SECONDLY, Mr. ( 10 ) SECONDLY, Mr. Bachawat contends that the learned Single Judge erred in law in passing a direction for rectification of the deed after the expiry of the period mentioned in said deed. Mr. Bachawat submits that no case for rectification has been established in the case and as such, it was a fit case where the learned single Judge ought to have refused the prayer for rectification. According to Mr. Bachawat, if the prayer for rectification is refused the suit should automatically fail as the plaintiffs have admitted mistake in the deed itself. ( 11 ) LASTLY, Mr. Bachawat relies upon application under Order 41 Rule 27 of the Code of Civil Procedure filed by his client for acceptance of the various documents and contends that from those documents it would appear that the predecessor-in-interest of the plaintiffs was really a thika tenant in respect of the property and such being the position, his clients is a bharatia within the meaning of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 as also the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and in such a case, the relationship should be governed by the provision contained in West Bengal Premises Tenancy Act. Mr. Bachawat, therefore, prays for setting aside the decree passed by the learned Single Judge after acceptance of the additional evidence sought to be adduced before this Court. ( 12 ) MR. Chowdhury, the learned senior Advocate appearing on behalf of the plaintiffs-respondents, on the other hand, opposed the previously mentioned contentions put forward by Mr. Bachawat. ( 13 ) SO far the point of misdescription or imprecision of the property is concerned, Mr. Chowdhury contends that the defendant having admitted the execution of the deed of lease and his clients having specifically prayed for decree for recovery of possession in respect of the red-marked portion delineated in the map annexed to the plaint and the lease-deed, there was no ambiguity in the description of the property sought to be recovered Mr. Chowdhury submits that there was only one mistake in the deed and that was in respect of the premises number given by the Kolkata Municipal Corporation and the defendant has not disputed the said mistake, Mr. Chowdhury submits that there was only one mistake in the deed and that was in respect of the premises number given by the Kolkata Municipal Corporation and the defendant has not disputed the said mistake, Mr. Chowdhury submits that the defendant has not claimed any additional right over the property other than through the induction by the plaintiffs and therefore, there cannot be any question for dismissal of the suit on the aforesaid ground. ( 14 ) AS regards the question of rectification, Mr. Chowdhury submits that in the case before us the Grace Cinema Hall along with the surrounding lands delineated in the map annexed to the lease-deed being the subject-matter of the dispute, there was even no cause for praying for the decree for rectification of the deed and even without any prayer for rectification, the Court can pass a decree for eviction in respect of the property when induction is admitted by the defendant. Mr. Chowdhury submits that the prayer of rectification was made as a precautionary measure as would appear from the prayer itself. ( 15 ) AS regards the application for additional evidence filed before this Court, mr. Chowdhury submits that such additional evidence is not at all necessary for effective adjudication of the dispute involved in the appeal before us. Mr. Chowdhury submits that his clients did not raise any construction over the property and got the property by way of lease from their lessor. Therefore, according to the definition of thika tenant contained in the West Bengal Thika tenancy (Acquisition and Regulation) Act, 2001 or in the Calcutta Thika tenancy (Acquisition and Regulation) Act, 1981, his client cannot be a thika tenant. According to Mr. Chowdhury, the lessor of his client cannot be said to be the predecessor-in-interest of his client. Mr. Chowdhury, therefore, prays for dismissal of this appeal after rejection of the application under Order 41 rule 27 of the Code of Civil Procedure filed before us. ( 16 ) THEREFORE, the first question that arises for determination in this appeal is whether the suit is liable to be dismissed for indistinctness of the property mentioned in the plaint. Mr. Chowdhury, therefore, prays for dismissal of this appeal after rejection of the application under Order 41 rule 27 of the Code of Civil Procedure filed before us. ( 16 ) THEREFORE, the first question that arises for determination in this appeal is whether the suit is liable to be dismissed for indistinctness of the property mentioned in the plaint. ( 17 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we find that the plaintiffs in the plaint have specifically stated that the subject-matter of the property is the portion delineated by red ink in the lease-deed, which was treated as part of the schedule of the plaint. The defendant has not disputed the execution of the deed and it is not the case of the defendant that otherwise than through the induction by the plaintiffs, he acquired any right, title or interest over the property or the adjoining land by any other transaction or by virtue of his own independent right. In such a case, there is no difficulty in identification of the subject-matter of the suit property with only this modification that the property should be described as 91a, Mahatma Gandhi Road which was formerly known as Harison Road. The description has been wrongly given as 90, Harison Road in the lease-deed. We, therefore, find no substance in the first contention raised by Mr. Bachawat. ( 18 ) AS regards the second point, we find that only rectification that was necessary was that, the number of the premises being wrongly mentioned as 91, Harison Road, now known as Mahatma Gandhi Road whereas the same was really 91a, Harison Road, it required correction to that extent. It appears that the same was a typographical mistake and the sole witness of the appellant did not dispute that the property is really situated on 91a, Mahatma Gandhi road; therefore, the learned Single Judge rightly granted the prayer for rectification of the deed. We, in this connection, find substance in the contention of Mr. Chowdhury that having regard to the fact the suit property was the well-known "grace Cinema" and the same was described with the specific boundary, there was no necessity of even the prayer for rectification and for abundant precaution, such prayer was made if the same was at all necessary. We, in this connection, find substance in the contention of Mr. Chowdhury that having regard to the fact the suit property was the well-known "grace Cinema" and the same was described with the specific boundary, there was no necessity of even the prayer for rectification and for abundant precaution, such prayer was made if the same was at all necessary. It is, therefore, a case, where the learned Single Judge exercised the correct discretion by granting the prayer for rectification. ( 19 ) AS regards the application under Order 41 Rule 27 of the Code of Civil procedure filed before us, we find that by those additional documents, the appellant wanted to impress upon us that the lessor of the plaintiff was really a thika tenant because their predecessor constructed the building on vacant land taken on lease. It appears that those constructions were done prior to the coming into operation of the Calcutta Thika Tenancy Act, 1949. Moreover, in order to bring the plaintiffs within the definition of thika tenant, it must be established that the plaintiffs or their predecessors-in-interest were thika tenants. The lessor the plaintiffs cannot be said to be their predecessor-in-interest. It is now well-settled that lease is a doctrine of separation of possession from ownership. By virtue of execution of a lease-deed, the title remains with the lessor while right of enjoyment passes to the lessee. Therefore, by execution of a lease-deed in favour of the plaintiffs' father, the lessor remained the owner of the property whereas the plaintiffs' father merely got right of enjoy ment of the property. Once, we hold that the plaintiffs or their father did not make any construction of the property nor did they or their father acquire any title to the structure but merely got right enjoyment of the same from the owners, they cannot be said to be the thika tenant within the meaning of the definition given in the subsequent legislations. We are unable to accept the contention of Mr. Bachawat that the lessor of the plaintiffs is the predecessor-in-interest of the plaintiffs so as to bring them within the definition of thika tenant. ( 20 ) IN view of what have been stated above, we find that the documents sought to be relied upon by way of additional evidence are not necessary for effective adjudication of the dispute involved in this appeal. ( 20 ) IN view of what have been stated above, we find that the documents sought to be relied upon by way of additional evidence are not necessary for effective adjudication of the dispute involved in this appeal. It appears that in this case, the plaintiffs inducted the defendant on the basis of a registered lease-deed for more than twenty years executed in the year 1972. Although the defendant-appellant took specific plea that the said deed was not given effect to, we are not at all impressed by such submission as will appear from the fact that even in the month of December, 1972 the said deed was registered at the instance of the parties. In the lease-deed there is no provision for earlier termination of the lease at the option of any of the parties. Therefore, West bengal Premises Tenancy Act cannot have any application to the fact of the present case and the appellant was liable to be evicted on the expiry of the terms of the lease. ( 21 ) WE, thus, find that the learned Single Judge on consideration of the materials on record rightly concluded that the defendant failed to prove that the tenancy was governed by the provision of the West Bengal Premises Tenancy act and decreed the suit on the ground of expiry of the lease. We find no reason to interfere with the judgment and decree passed by the learned Trial Judge. The appeal is dismissed accordingly. In the facts and circumstances, there will be, however, no order as to costs. Appeal dismissed.