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2007 DIGILAW 782 (CAL)

Prabhat Kumar Paul v. Lakshmi Janardan Thakur

2007-10-05

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2007
Judgment : RUDRENDRA NATH BANERJEE, J (1) THIS appeal is directed against the judgment and decree passed in Suit No. 620 of 1982 of the Ordinary Original Civil Jurisdiction of this Court decreeing the suit in favour of the plaintiff-deities. (2) THE plaintiff-deities case briefly stated is as follows: (3) ONE Kailash Chandra Dey, the original owner of the suit property, made out an Arpannama dated April 11,1903 making the suit properties along with others debuttar after dedicating the same in favour of Shri Lakshmi janardan Thakur, Sri Sri Vairabeswar Shib Thakur, Sri Sri Kailash Nath Shib thakur i.e. plaintiff Nos. 1, 2 and 3 respectively. In such Arpannama, Sri Sri kailash Chandra Dey himself was appointed the first shebait of the plaintiff-deities. While the plaintiff-deities were being represented by such shebait and the debuttar estate under the Arpannama was being managed by such sebaits as per terms of the Arpannama, in or about 1948, a dispute arose between the then sebaits on the issue of management of the debuttar properties and worship of the plaintiff-deities. (4) THE Administrative Suit No. 3491 of 1948 of this Court was filed by the plaintiff-deities through the next friends viz. Sm. Satyabati Dasi and Rohit kumar Dey, Saroj Kumar Dey and Ranjit Kumar Dey. The suit was filed against Kanai Lal Dey, the predecessor of the present defendant/appellant nos. 6 to 12 and Krishna Kumar Dey, the father of the defendant/appellant no. 5 and two others. The suit was, inter alia, for removal of Krishna Kumar dey and Kanai Lal Dey from the office of shebaitship and for administration of the debuttar estate and other relief. (5) IN the said suit, a Receiver was appointed over the entire debuttar estate by an order of the Court dated February 2, 1959. The Court by an order dated September 1, 1958 decreed the suit in preliminarily form on consent. (6) THE present defendant Nos. 2 to 4 along with Kanai Lai Dey, since deceased, and Krishna Kumar Dey, since deceased, were declared sebaits of the said deities and the other terms of the said consent decree were as follows :- (A) The term of worship i.e. Pala would be enjoyed by Kanai Lal dey, since deceased, for the first year Rohit Kumar Dey and his brothers, i. e. the defendant Nos. 2, 3 and 4 would get the second pala thereafter for the next one year. Thereafter, Krishna Kumar dey, since deceased, would get the third Pala for the next one year. (B) The paladars or the sebaits, after the expiry of their respective turn of worship, should make over the debuttar properties and the ornaments belonging to the deities to the next paladar. (C) The management of the Dev Seva would be in accordance with the scheme annexed to the said decree and the management of the debuttar estate should be governed by the terms of Arpannama dated April 11, 2003 executed by the founder, viz. late Kailash Chandra Dey. (D) An Official Receiver was appointed over the debuttar estate and he was to stand discharged from further acting as the Receiver subject to his filing of final accounts. Such Receiver was also directed to hand over the immovable properties of the debuttar estate to the plaintiffs and the defendant Nos. 2 and 3 jointly after whom the defendant, Kanai Lal Dey, since deceased, would act as the next paladar. (7) ACCORDINGLY, after the death of Kanai Lal Dey, the defendant Nos. 2 to 4 got possession of the debuttar estate as next paladar on and from October 8, 1959. Thereafter, on the application of the plaintiffs in the said suit, Mr. P. C. Sen, Barrister-at-Law, was appointed as Receiver by the order dated January 13,1961. He accordingly took possession of this estate on January 18, 1961. Thereafter, the Receivers of the debuttar estate have been changed from time to time. (8) THE said Kanai Lal Dey died intestate on or about 12th October, 1964 leaving him surviving the defendant Nos. 6 to 12 as his sons and heirs. (9) THEREAFTER, the said defendant Nos. 6 to 12 made an application before this Court for discharge of the then Receiver Pramatesh Ghosh and for appointment of a new Receiver in his place. Such application was allowed by this Court and the present plaintiff No. 4, viz. Sri Girindra Krishna dutta was appointed as Receiver in his place. The said plaintiff No. 4 submitted report in respect of the Premises No. 13, Sitaram Ghosh Street, calcutta-9 which was purported to have been leased out by the defendant nos. 2 to 4 to the defendant No. 1, being their married sister by a purported deed of lease dated August 30, 1960. The said plaintiff No. 4 submitted report in respect of the Premises No. 13, Sitaram Ghosh Street, calcutta-9 which was purported to have been leased out by the defendant nos. 2 to 4 to the defendant No. 1, being their married sister by a purported deed of lease dated August 30, 1960. (10) ON April 13, 1982 on an application by the defendant Nos. 7 to 12, this Court in the said suit permitted the Receiver, the plaintiff No. 4 to sue the defendant No. 1 for recovery of possession of the debuttar estate at 13, Sitaram Ghosh Street, Calcutta-9. Accordingly, the plaintiff-deities represented by the Receiver, the plaintiff No. 3, filed this suit with the allegation that the said defendant Nos. 2 to 4 leased out the debuttar property without any consent of the other two sebaits viz Kanai Lal Dey and Krishna Kumar Dey in gross violation of the terms of the original arpannama, and as such, the purported deed of lease was not binding upon the plaintiff-deities. (11) IT is further alleged in the plaint that the purported lease was created not for the benefit of the plaintiff-deities or the debuttar estate, but for the own benefit of the parties to the indenture themselves. In the place of old tenancy in respect of the premises in 13, Sitaram Ghosh Street, calcutta-9 at the rate of rent of Rs. 55/-a month, the defendant No. 1 was granted lease with rent of Rs. 60/-a month. The defendant No. 1 had been realising the rent for her own benefit at the rate of Rs. 1,000/-per month since the grant of the purported lease by way of subletting the premises. (12) THE plaintiff-deities had accordingly prayed for a decree of declaration of their title and for recovery of possession and for cancellation of the purported deed of lease dated August 30,1960 and for further declaration that the defendant No. 1 has no right, title and interest in the suit property and for permanent injunction. (13) THE defence taken by the defendant No. 1 while filing the written statement is that the suit is not maintainable as the idol plaintiff No. 1 Sri Sri lakshmi Janardan Jew was lost long ago during the lifetime of Kanai Lal Dey, and accordingly, the plaintiff No. 1 is no longer in existence. (13) THE defence taken by the defendant No. 1 while filing the written statement is that the suit is not maintainable as the idol plaintiff No. 1 Sri Sri lakshmi Janardan Jew was lost long ago during the lifetime of Kanai Lal Dey, and accordingly, the plaintiff No. 1 is no longer in existence. It is the further case of the defendant No. 1 that the consent decree in Suit No. 3491 of 1948 of this Court is not binding on her as she was not a party to the said decree. It is also the case of the defendant No. 1 that no provision has been made in the consent decree as to inheritance of the shebaitship, when a particular shebait dies, and as such, the shebaitship of the deceased Kanai lai Dey or Krishna Kumar Dey has not been inherited by their heirs and accordingly, they have no right to represent the deities as shebait. (14) IT is the further case of the defendant No. 1 that as she was a tenant at the rate of Rs. 60/- a month in respect of the said premises under the plaintiff-deities, she is the tenant governed under the West Bengal premises Tenancy Act and is not evictable without any decree of eviction against her under the said Act. (15) THE defendant Nos. 2 and 3 in their joint written statement practically supported the defendant No. 1 by challenging the shebaitship of defendant Nos. 5 to 12. It is further alleged that the defendant No. 1 Was a tenant on consent of the said Kanai Lal Dey and Krishna Kumar Dey, the then sebaits of the plaintiff-deities. (16) IT is the further case of the defendant Nos. 2 and 3 that huge amount of tax of the Corporation and arrears of rent was due and the then receiver P. C. Sen accepted the defendant No. 1s tenancy by granting receipt against realisation of rent from her. The tenancy, according to the defendant Nos. 2 and 3 was for business purpose and the deities have no right to the rents realised by the defendant No. 1 or her sub-tenants. The defendant Nos. 2 and 3 have also challenged the maintainability of the suit on the ground that the plaintiff No. 1 deity was not in existence. (17) THE defence of the defendant Nos. 2 and 3 was for business purpose and the deities have no right to the rents realised by the defendant No. 1 or her sub-tenants. The defendant Nos. 2 and 3 have also challenged the maintainability of the suit on the ground that the plaintiff No. 1 deity was not in existence. (17) THE defence of the defendant Nos. 7 to 12, as contained in their joint written statement filed in this suit, is in favour of the plaintiff. According to them, the defendant Nos. 2 to 4 had no authority to create such lease in violation of the terms of the original Arpannama. Such purported deed of lease is illegal and void ab initio. These defendants have also contended that neither any consent nor any permission from the other sebaits was taken at the time of creation such lease. (18) THE learned Single Judge upon the pleadings of both sides framed necessary issues in the suit and the parties adduced oral and documentary evidence before him. (19) THE present Receiver, viz. Sasanka Das and the earlier Receiver, viz. Gopal Krishna Dutta were examined from the side of the plaintiffs. Prabhat Kumar Paul, a son of the deceased defendant No. 1 also examined himself. The defendant No. 7, Gobindo Chandra Dey, the son of late Kanai lal Dey and the defendant No. 2, Rohit Kumar Das also deposed before the Court. (20) ULTIMATELY, the learned Single Judge by the judgment dated January 8, 2004 considered the cases of both sides, discussed elaborately the oral and the documentary evidence on record and came to the findings that the dedication made in Arpannama in favour of the deity was absolute and unconditional and accordingly, the temporary absence of a symbolic form of deity could not affect the basic terms and conditions of the arpannama and accordingly, the Receiver, viz. Sri. G. K. Dutta had not made any mistake in filing the suit in the names of the three deities on the strength of such Arpannama and also on the strength of the order of the Court in the Administrative Suit. It was also held by the learned Single Judge that the suit could not be barred under the law of limitation as the same was filed under leave of the Court in a peculiar facts and circumstances and was filed within the specific time after getting the leave of the Court. It was also held by the learned Single Judge that the suit could not be barred under the law of limitation as the same was filed under leave of the Court in a peculiar facts and circumstances and was filed within the specific time after getting the leave of the Court. (21) THE learned Single Judge while interpreting the terms of the deed of Arpannama and the consent decree passed in the Administrative suit together with the scheme framed therein observed that there was no intention of the settlor to empower any single shebait or a group of sebaits to alienate any part of the debuttar estate and it was the clear intention of the settlor that such alienation must be done jointly by all the sebaits and no exception of this Rule was made by the consent decree or the scheme attached to it. (22) LEARNED Single Judge considered the decision reported in AIR 1975 Calcutta page 389 (Jogendra Nath Naskar v. Official Receiver, High court, Calcutta) and held that the defendant Nos. 2 to 4 had no authority to execute the deed of lease in favour of the defendant No. 1, Padma Rani paul, since deceased. (23) IT was also observed by the learned Single Judge that the deed of lease was totally silent about the legal necessity behind the alienation and that apart, there was no tangible evidence to substantiate the point that at the time of execution of the lease-deed, there was any legal necessity for execution of the document. Accordingly, the lease-deed was held void ab initio. (24) IT was also observed by the learned Single Judge that the status of Padma Rani Paul was that of a mere licensee at the best during the tenure of P. C. Sen, the Receiver and as no other Receiver accepted rent from Padma Rani Paul or on her death, from the defendant No. 1 (a), the possession of Padma Rani Paul after discharge of Mr. P. C. Sen became that of a trespasser and naturally, the defendant No. 1 (a) must be considered to be a trespasser in the suit property. (25) UPON such observations, a decree of declaration was passed that the deed of lease dated 30th August, 1960 in favour of Padma Rani paul, since deceased, by defendant Nos. 2 to 4 was void and illegal and not binding upon the plaintiff-deities. (25) UPON such observations, a decree of declaration was passed that the deed of lease dated 30th August, 1960 in favour of Padma Rani paul, since deceased, by defendant Nos. 2 to 4 was void and illegal and not binding upon the plaintiff-deities. (26) IT was also decreed that the plaintiff-deities were entitled to recover possession of the disputed property and the defendant No. 1 (a)had been directed to deliver peaceful possession of the suit property to the Receiver of the plaintiff-deities within two months from the date of that judgment. A decree for permanent injunction was also passed. The permission was also granted to the Receiver for instituting an appropriate proceeding for recovery of damages/mesne profits against the defendant No. 1 (a). (27) AT the very outset, Mr. Haradhan Banerjee, the learned Advocate appearing for the appellant has contended that the suit was barred by limitation. (28) THE suit is one for recovery of possession upon declaration that the suit property is owned by the plaintiff-deities and that the defendant no. 1 has no right, title and interest in the suit property as tenant or otherwise and for cancellation of the deed of lease dated August 30, 1960, for permanent injunction and also for mesne profits. The defendant No. 1 in the suit claimed tenancy and not possession based on any title by way of adverse possession, in such a case, the period of limitation should be 12 years after such possession becomes adverse to the true owner, as provided under Article 65 of the Limitation Act. Here, the present plaintiffs/ respondent Nos. 1 to 4 claimed recovery of possession based on title and the defendant claims tenancy under plaintiff deities and not any possession adverse to the plaintiff-deity. Thus, the suit being one filed by the plaintiff-deities through the Receiver under the leave of the Court, cannot be said to be barred by limitation in any way. (29) ANOTHER contention has been raised from the end of the defendants that one of the deities being the plaintiff No. 1, Sri Sri Laxmi janardan Thakur being non-existent, as the idol of the deity was lost long back, the suit is bad in the eye of law. (29) ANOTHER contention has been raised from the end of the defendants that one of the deities being the plaintiff No. 1, Sri Sri Laxmi janardan Thakur being non-existent, as the idol of the deity was lost long back, the suit is bad in the eye of law. But, from the very nature of the suit being one for the protection of the debuttar property and such deities being made parties to the suit in spite of the loss of the idol of the particular deity itself, the suit cannot be said to be barred for defect of parties. The idol of a deity is mere an image of the deity and as such, the loss of such idol does not necessarily amount to the absence of the existence of the deity itself. Thus, such contention of the learned Lawyer for the defendant no. 1 (a) does not stand. (30) UNDISPUTEDLY, the suit property originally belonged to one Kailash chandra Dey who dedicated the suit property along with other properties in favour of the three plaintiff-deities, namely, Sri Laksmi Janardan Thakur, sri Sri Vairabeswar Shibthakur and Sri Sri Kailash Nath Shibthakur by the deed of Arpannama dated April 11, 1903, marked Ext. B in the suit, making the dedicated properties including the suit properties as absolute debuttar. Clause 3 of the Arpannama has clearly prohibited any sort of alienation or charge or creation of any lease of such debuttar property in the own interest of the sebaits. It was further provided under Clause 9 of the said arpannama that pattas or kabuliyat which would be executed by or in favour of tenants in respect of immovable properties declared as debuttar will have to be executed by the sebaits in the name of said deities. (31) IT has been contended by Mr. Haradhan Banerjee, the learned advocate for the appellants that such lease executed by the defendant nos. 2 to 4, i.e. respondent Nos. 13 to 15 by the indenture dated August 30, 1960 in favour of original defendant No. 1 Padma Rani Paul was quite a valid one and according to him, by virtue of such lease, the original defendant No. 1, Padma Rani Paul, acquired non-evictable right from the suit property without the due process of law. Mr. 13 to 15 by the indenture dated August 30, 1960 in favour of original defendant No. 1 Padma Rani Paul was quite a valid one and according to him, by virtue of such lease, the original defendant No. 1, Padma Rani Paul, acquired non-evictable right from the suit property without the due process of law. Mr. Banerjees further argument is that such lease created in favour of Smt. Padma Rani Paul made her a tenant under the West Bengal Premises Tenancy Act and her tenancy continues by way of holding over even after term of original lease had expired. (32) ON the other hand, Mr. Sunil Kumar Mitra, the learned Advocate for the plaintiffs/respondent Nos. 1 to 4, has contended that the defendant nos. 2 to 4 being simple paladars, had no authority to execute any such deed of lease conferring upon the said Padma Rani Paul the status of a tenant under the plaintiff-deities and such deed of agreement being made out without the consent of the other sebaits, is void ab initio as against the terms of the Arpannama. (33) MR. L. N. Bhattacharjee, the learned Advocate for the respondent nos. 7 to 12 has contended that such concurrent lease is not permissible in law and thus, such purported deed of lease is void and not binding on the plaintiff-deities. (34) WE have gone through the said Arpannama and also the said deed of agreement and the oral and documentary evidence adduced before the learned Trial Judge. As discussed above, it appears that the said Arpannama created an absolute debuttar in respect of the suit property and others. The bilateral deed of agreement dated August 30,1960, made out only two months before the expiry of the term of Pala of the defendant Nos. 2 to 4, does not speak of any legal necessity which prompted the said defendants to lease out the debuttar property. Documentary evidence and oral evidence-on-record are not convincing to establish that there was any legal necessity of the deities for the preservation and maintenance of the debuttar property or for continuance of the regular seva puja and performance of other rituals attached to the deities. (35) IT cannot be overlooked that the suit property, even before the execution of the deed of agreement was let out to one Indira Bose and Kanak Bose. (35) IT cannot be overlooked that the suit property, even before the execution of the deed of agreement was let out to one Indira Bose and Kanak Bose. There were of course some arrears of rent to be realised from such tenants. But it is not understood why the suit property had to be leased out to the original defendant No. 1, Smt. Padma Rani Paul at Rs. 60/- a month only while the rent from the earlier tenants was Rs. 55/-a month. (36) BUT at the same time, the execution of the deed of agreement dated August 30, 1960 which has been marked Ext. D in the suit cannot be ignored nor is it disputed. Under the law of our land, the creation of tenancy in favour of a person when admittedly some other person is in possession as tenant i. e. creation of a concurrent lease, is not a valid law. The said bilateral termed lease, made out in haste, without any delivery of possession cannot be termed as a lease neither under Section 105 of the Transfer of Property act nor under the provisions of the West Bengal Premises Tenancy Act nor does the agreement create any title to the debuttar-property in favour of padma Rani Paul. (37) WE fully agree with the view of the learned Single Judge that such agreement of lease was not made out upon a legal necessity of the deities. We further hold that the said agreement, Ext. D, does not create any tenancy in favour of the original deceased defendant No. 1, Padma rani Paul simply on the ground that the other sebaits of the deities were not parties to such agreement. (38) WE have gone through the order dated September 1, 1958 passed by Justice P. C. Mallick marked Ext. C along with the terms of settlement and the scheme framed or approved by the Court. On perusal of the said consent decree, we find that in the suit by the present three plaintiff-deities represented by the sebaits and the next friends for removal of the sebaits like Kanailal Dey and Krishna Kumar Dey, the consent decree was passed with terms of settlement and a scheme of debseva with the list of expenses annexed with the decree. Such terms of settlement and the scheme cannot be said to be beyond the terms of the original deed of Arpannama dated April 11,1903. The appointments of future sebaits or paladars and the scheme for making expenses for debseva cannot be interpreted without the original terms of dedication made out in the Arpannama. The present respondent Nos. 13 to 15 were made paladars for a term of one year as indicated in the order of the Court. It is true that the said order of settlement does not specify whether after the death of the said paladar/sebait mentioned in the terms of settlement and the Courts order, their heirs would be the next sebaits in the place of the deceased sebait. But, we find that the terms of settlement and the scheme being within the purview of the deed of Arpannama such heritable character of the sebaitship as mentioned in the Arpannama itself must be followed. (39) HOWEVER, we are not unmindful that Mr. P. C. Sen,the Receiver appointed by the Court on behalf of the deities accepted rents from the original defendant No. 1, Padma Rani Paul. Neither the terms of settlement before the Court nor the scheme thereunder nor the Arpannama approves such creation of tenancy by any individual or group of sebaits. The decision of Jogendra Naskars case (supra) prohibiting such tenancy by a group of sebaits may be relied upon. This being the position, it cannot be held that a valid and binding tenancy in favour of Padma Rani Paul had been created by the said indenture dated August 30, 1960. We are of the view in tune with the finding of the learned Single Judge that at the best by the said deed or by the act of the defendant Nos. 2 to 4/respondent Nos. 13 to 15 the power of collection of rent from the existing tenants or eviction of the existing tenants from the suit property was conferred upon the said original defendant No. 1. Such rent receiving interest on behalf of some of the sebaits cannot be equated with the creation of tenancy or lease in favour of the original defendant No. 1. Thus, in our view, the said original defendant No. 1 could have taken the benefit of the said agreement conferring power of realisation of rent to the said till the end of term of such paladars/respondent Nos. Thus, in our view, the said original defendant No. 1 could have taken the benefit of the said agreement conferring power of realisation of rent to the said till the end of term of such paladars/respondent Nos. 13 to 15 but not for any subsequent period. Of course, the existing tenants, Kanak Kumar Bose and another have been evicted by the said defendant No. 1, Padma Rani Paul by an eviction decree confirmed by the Appellate Court and consequently, the possession taken pursuant to such decree should go in favour of the debuttar estate. (40) THE learned Single Judge held the said deed of agreement as void ab initio as distinguished from voidable agreement and the said document was an illegal one having no binding force upon the plaintiff-deities and accordingly, learned Single Judge has passed a decree of recovery of possession and permanent injunction. (41) MR. Banerjee has strenuously contended that Section 105 of the transfer of Property Act recognises the creation of tenancy while other tenants are in possession. In other words, such enjoyment of the property through the tenant, according to him, should be deemed to be a constructive possession of the lessor which may not be equivalent to physical possession and such transfer of enjoyment of future rent is an intangible immovable property and as such, a valid lease can be created in respect of such property. (42) MR. Banerjee in support of his contention has relied upon the decisions reported in AIR1938 Madras 100, Rathnaswami Mooppanar and Ors. v. R. C. Nagaraja Mooppanar, 55 CWN p. 86, Srinarayan Mansingka v. Durga dutt Misra and Ors. and AIR 2004 SC 2428 , Subbegowda (dead)by L. R. v. Thimmegowda (dead) by L. Rs. (43) IN the cited decision in the case of Rathnaswami Mooppanar and ors. v. R. C. Nagaraja Mooppanar (supra), it has been held that there is nothing in the Transfer of Property Act to preclude the lease of a reversion but it has been discussed in the said judgment at page 102 that "there is always a distinction between an assignment of rents and profits and a lease of reversion. In the case of an assignment of rents and profits, all that the assignees will be entitled to is the right to realise the rents and profits by virtue of the assignment in his favour. In the case of an assignment of rents and profits, all that the assignees will be entitled to is the right to realise the rents and profits by virtue of the assignment in his favour. But in the case of a reversion it is not merely the right to recover the rents and profits that the later transferred to him but also the rights which the lessor had on the date of reversion, for example, his right to recover possession immediately on the expiry of the previous term and if before the expiry of the term by virtue of a forfeiture, the lessor had the right to re-enter, the right of such reentry. " But the so-called lessor i. e. the defendant Nos. 2 to 4/respondent Nos. 13 to 15 had no right to transfer the title in favour of defendant No. 1 and at the same time, this decision does not deal with the prior judgment of the Privy Council reported in 65 CLJ 275, M. E. Mullah Sons Ltd. v. Official Assignee of the High Court of judicature, Rangoon which held that a transfer of such right without a deed of sale under Section 54 of the T. P. Act is not permissible. Therefore, this judgment cited by Mr. Banerjee cannot have any binding force. (44) MR. Banerjee appearing for the appellant has also relied upon a decision reported in Srinarayan Mansingka v. Durga Dutt Misra and Ors. , reported in 55 CWN 86 which is a judgment of the Division Bench of this court. In the cited judgment, it was held that the reversion being immovable property, there is no prohibition anywhere in law against the lease of such property. For the same reason, as discussed above, this decision cited by mr. Banerjee is not binding on us as a precedent. (45) MR. Banerjee, the learned Advocate for the appellant has also cited a decision reported in AIR 2004 SC 2428 , Subbegowda (dead) by L. R. v. Thimmegowda (dead) by L. Rs. and contended that the Section 105 does not speak of enjoyment of the property by physical possession but it speaks of enjoyment of such property by enjoyment of rent collected through existing tenant and such enjoyment of property through tenant shall be deemed to be a constructive possession of the reversionary interest of the second degree lessee during the subsistence of the first lease. Such decision appears to be not applicable to the present case due to difference of facts. In the cited decision the registered deed of settlement dated 1. 8. 69 was made out by one Thimmegowda in favour of his brothers son Narayani whom Thimmegowda adopted as son, on the condition that Narayani would also perform certain conditions of looking after the settlor and getting his daughters married etc. The said settlor Thimmegowda brought a suit against his said adopted son for setting aside the deed of settlement and for recovery of possession etc. The Supreme Court held that the said deed was only for arrangement called settlement with power of revocation expressly reserved to the author. Here, mr. Banerjees client does not claim any ownership of the property by purchase. (46) UPON such question of validity of further lease during the existence of another lease i. e. in other words a concurrent lease, has been dealt with very recently by the Division Bench of this Court in a decision reported in 2005 (2) CHN 519 , Sambhunath Mitra and Ors. v. Khaitan Consultant Ltd. and ors. In the said ratio the decision reported in 55 CWN 86 (supra) could not be relied upon as in the said decision, the earlier Privy Council decision reported in 65 CLJ p. 275 (supra) had not been dealt with. In the said Privy council decision, the question was whether a deed authorising somebody to realise future rent and profit was compulsorily required to be registered under the provisions of Section 17 of the Registration Act. In such decision, it was held that the right to future rent is a right in immovable property and if such right is transferred in favour of a third person, such transfer must be effected in accordance with the provision of sale contained in Section 54 of the transfer of Property Act. In other words, Their Lordships were of the opinion that a right to realise future rent and profit from immovable property can be created only in accordance with the provisions contained in Section 54 of the Transfer of Property Act, meaning "by sale", which is not the appellants case here. Now if we are to accept the contention of Mr. In other words, Their Lordships were of the opinion that a right to realise future rent and profit from immovable property can be created only in accordance with the provisions contained in Section 54 of the Transfer of Property Act, meaning "by sale", which is not the appellants case here. Now if we are to accept the contention of Mr. Banerjee that such right can be transferred also by creating a concurrent lease, we shall have to act contrary to the decision of the Privy Council in the M. E. Mullas case (supra). Furthermore, the decisions relied upon by Mr. Banerjee does not deal with such Privy Council decision already in existence and accordingly such decisions cited by Mr. Banerjee loses the force of a precedent. The said decision of the Division Bench of this Court in Sambhu Nath Mitras case has also categorically mentioned that the contrary view expressed in ILR 49 Cal pg. 495, Jahar Lal Bhutra v. Bhupendra Nath basu, is no longer a good law in view of the subsequent Privy Council decision. (47) IN the case of Sambhu Nath Mitra reported in 2005 (2) CHN 519 , one Emareld Company being the admitted owner of a particular premises created tenancy in favour of Prasanta Kumar Dey, the predecessor of the appellants. During the subsistence of such tenancy and possession by the appellants and other tenants, the said Emareld company leased out the selfsame property to Khaitan Consultant Ltd. The said Khaitan Consultant Limited filed a suit against the appellants therein for khas possession and mesne profits etc. The appellants also filed another suit against Khaitan Consultant Company Limited and other heirs of original tenant for declaration of their tenancy right. The learned trial Judge dismissed the suit filed by the appellants while docreed the suit filed by the Khaitan Consultant Company Ltd. The appeals against the decisions of the trial Court in those two cases came up for hearing and were heard analogously. (48) IN the appeals the question of validity of a further lease by the owner during the subsistence of tenancy and its effect on the existing tenants were considered. (48) IN the appeals the question of validity of a further lease by the owner during the subsistence of tenancy and its effect on the existing tenants were considered. It was held that the doctrine of concurrent lease i. e. the lease created during the subsistence of another tenancy over the selfsame property might be recognised under the English Law (although held in some other decision to be unsettled) but in India, the assignment of lease of reversion cannot be created without any compulsorily registrable document of sale under Section 54 of the Transfer of Property Act. (49) IN arriving at such conclusion, the Division Bench of this Court in sambhu Nath Mitras case (supra), relied upon the decision of the Privy council in the Mullas case (supra), where Their Lordships were of the opinion that the right to realise future rent and profit can be created only by sale under Section 54 of the Transfer of Property Act, as the right to future rent is a right to an immovable property. In arriving at such decision, the Division Bench of this Court was also quite alive to the provisions of section 109 of the Transfer of Property Act, which provides that where a lessee transfers not the property leased out but an interest therein, is capable to transfer his remaining interest after creating the first lease. Of course, it has also been explained that during the subsistence of lease, the lessor can mortgage his property and then in that case, the mortgagee shall step to the shoes of the lessor but by creating a concurrent lease, there was no scope of binding the existing tenants to a tenancy under the second lessee. (50) THUS, considering all these aspects Mr. Banerjees contention in support of concurrent lease cannot be accepted. (51) MR. Banerjee has cited the decision reported in AIR 1977 SC 2149 , bihar Eastern Ganjesh Fishermen Co-operative Society Ltd. v. Sipahi singh and Ors. and has contended that there is no prohibition of transfer of reversionary interest by virtue of a lease in terms of Section 105 of the transfer of Property Act. (51) MR. Banerjee has cited the decision reported in AIR 1977 SC 2149 , bihar Eastern Ganjesh Fishermen Co-operative Society Ltd. v. Sipahi singh and Ors. and has contended that there is no prohibition of transfer of reversionary interest by virtue of a lease in terms of Section 105 of the transfer of Property Act. (52) IN the cited decision, the prayer of the respondent No. 1 was to quash the changed order of the Government to grant settlement in favour of jalkar Society for 1976-77-78 on the ground that the same was already settled to the respondent No. 1 by the Government. In the said decision, it was held that right to catch fishes being a "profit a prendre" was an immovable property within the meaning of the Transfer of Property Act and thus, such right should be transferred by a registered document if the value is more than Rs. 100/ -. The said decision never suggested that such right can also be transferred by way of other than registered instrument like monthly lease. The said decision, therefore, does not help the appellants. (53) MR. Banerjee has cited thedecision reported in AIR 1928allahabad 726, which is a decision of the Full Bench of three Honble Judges. In the said decision, a mortgagor sold his right to the mortgagee by a deed of 1901 and in such circumstances, it was held that no right was left with the mortgagor for transfer to any third party. Such decision does not come to any help of mr. Banerjee; as the facts are quite different from the present set of facts, as in the present case defendant No. 1 or the defendant Nos. 2 and 3 in their respective written statements have claimed their tenancy and not any ownership by sale. (54) MR. Banerjee has also relied upon the decision reported in AIR 1956 SC 17 , Ananda Behera and Anr. v. State of Orissa and Anr. In the said decision the sale and catching of fishes in a particular portion of a lake and to take away such fishes was sought to be effected in a deed which was held to be compulsorily registrable, as it was a case of profit a prendre which is an immovable property valued more than Rs. 100/ -. In the said decision the sale and catching of fishes in a particular portion of a lake and to take away such fishes was sought to be effected in a deed which was held to be compulsorily registrable, as it was a case of profit a prendre which is an immovable property valued more than Rs. 100/ -. In the present case, it has already been discussed that the defendants do not claim any acquisition of title by sale or purchase by a registered document but claim a monthly tenancy, which does not require registration. Thus, the said decision rather goes against the submission of Mr. Banerjee. (55) MR. Banerjee has also argued that the decision reported in sambhu Nath Mitra (supra), being a Division Bench judgment and the same having disagreed with the other Division Bench judgment reported in AIR 1923 Cal 368 ought to have referred the case before a higher Bench for decision Mr. Banerjee has relied upon the decision reported in AIR 1990 SC 37, Sridhar s/o. Ram Dular v. N. J. and Ors. , which decided that judicial discipline requires a Single Judge disagreeing with the decision of another Single Judge is to refer the matter to a Larger Bench for an authoritative decision. Such decision Is not applicable for the reason, which has been made clear in the case of Sambhu Nath Mitra, reported in 2005 (2) CHN 519 itself, that the earlier Bench of concurrent jurisdiction decided the entire matter without dealing with the existing judgment of the Privy Council and it has been further held therein that such decision arrived at without looking into the higher Courts prior decision and as such the decision loses its binding force. As pointed out by the Apex Court in the case of C. S. T. v. Pine Chemicals Ltd. , reported in 1995 (1) SCC 58 , if a Court arrives at a decision by violating a binding precedent taking a contrary view, such fact amounts to error apparent on the face of record and affords a ground for review. If a decision of an earlier Bench suffers from such an error apparent on the face of record, the same definitely loses its value as precedent. If a decision of an earlier Bench suffers from such an error apparent on the face of record, the same definitely loses its value as precedent. In this connection, it will be profitable to refer to the following observations of the Apex Court in the case of Mamleswar Prasad v. Kanihalal and Ors., reported in AIR 1975 SC 907 where the said Court pointed out the instances which make a judgment per incuriam :- "certainty of the law, consistency of rulings and comity of courts -all flowering from the same principle-converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. " (56) THE case of Ram Dular (supra), relied upon by Mr. Banerjee was not a case where the earlier Bench overlooked a binding precedent and therefore, cannot be applied to the facts of the present case. (57) MR. Banerjee has also laid stress upon the question of holding over of the tenancy by the original defendant No. 1, Padma Rani Paul and has relied upon the decisions reported in AIR 1949 Federal Court 124, Kai khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and Anr. and AIR 1952 SC 23 , Ram Kumar Das v. Jagdish Chandra Das and AIR 1966 SC 629 , Atyam Veerraju and Ors. v. Pechetti Venkanna and Ors. and AIR 1971 SC 1028 , Smt. Rani and Anr. v. Smt. Santa Bala Debnath. In all these decisions it was found that there was a tenancy created by the lessor and after expiry of the term of the tenancy the lessor received rent from the lessee. But here in the present case as discussed above it is clear that no tenancy was actually created in favour of the original defendant No. 1, Padma Rani Paul by the deities. Only a right of realisation of rent and eviction of the existing tenant was given by the said deed of agreement by some of the sebaits during their Pala and nothing else. Thus, such decisions are not applicable to the present case. (58) MR. Only a right of realisation of rent and eviction of the existing tenant was given by the said deed of agreement by some of the sebaits during their Pala and nothing else. Thus, such decisions are not applicable to the present case. (58) MR. Banerjee has strenuously contended that the Arpannama, Ext. B does not prohibit any lease. On perusal of such Arpannama it appears that it does not prohibit creation of lease or even transfer by the deities represented by all the sebaits for legal necessity of the deities or for maintenance and preservation of debuttar property. The Arpannama does not give any scope of creation of lease or making transfer by any individual shebait or paladar or group of such shebait or paladar. The deed of lease dated the 30th August, 1960 does not indicate any existence of legal necessity for creation of such lease. We have gone through the oral and documentary evidence-on-record and found that there was no such valid and legal necessity at the relevant period to create any such lease. In view of the decision reported in AIR 1975 Cal 389 , Jogendra Nath Naskar v. Official receiver, High Court, Calcutta as referred to the learned Single Judge the defendant Nos. 2 to 4 did not have also any authority to create any such lease in favour of the defendant No. 1, Padma Rani Pal. Moreover, the law does not permit creation of concurrent lease. (59) MR. P. C. Sen, Bar-at-Law, was appointed as Receiver for the suit property by the order of this Court dated June 6,1961. But on perusal of such order appearing on page 50 of the paper book No. II, it transpires that the creation of lease by such receiver, without the leave of the Court has been strictly prohibited. There is no evidence-on-record that the said receiver was either permitted by the Court to create any such tenancy over the debuttar estate or over any part thereof. Moreover, when the property was under the control of a Receiver, some of the parties without the leave of the Court could not encumber the property any further. There is no evidence-on-record that the said receiver was either permitted by the Court to create any such tenancy over the debuttar estate or over any part thereof. Moreover, when the property was under the control of a Receiver, some of the parties without the leave of the Court could not encumber the property any further. (60) THUS, considering the oral and documentary evidence-on-record we find, as also held by the learned Single Judge, that there was no legal necessity for bringing such indenture into existence in favour of the defendant No. 1, the sister of the makers of the deed defendant Nos. 2 to 4. (61) THE Receiver, Mr. G. K. Dutta filed the suit with the express leave of the Court and accordingly Mr. Banerjees contention that the Receiver had no authority to sue as the next friend of the plaintiff deities does not stand. (62) UPON such consideration, we are of the firm opinion that the said padma Rani Paul had become a trespasser in the suit property having no right of tenancy in respect thereof and there is no reason to interfere with the impugned judgment and decree passed by the learned Single Judge. (63) HENCE, the appeal is dismissed on contest. There shall be no order as to costs of the appeal.