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2015 DIGILAW 610 (CAL)

Debasish Batabyal v. Chaitali Batabyal

2015-07-24

ASHOKE KUMAR DASADHIKARI

body2015
JUDGMENT : Ashoke Kumar Dasadhikari, J. 1. The order impugned passed by the learned Additional District Judge, 3rd Court, Barrackpore, North 24-Parganas on 8th December, 2014 in Title Appeal No.29 of 2012 refusing the prayer of the petitioner to add him as party in the Title Appeal is under challenge in this revisional application. 2. Mr. Roychowdhury, learned Senior Counsel appearing for the petitioner submits that the property in question was owned by Sri Sri Gopinath Jew alias Shri Shri Radha Krishna Jugalmurty. Smt. Krishna Rani Bhuiya as shebait representing deity instituted a suit against the opposite party nos.1 to 4 being the defendants in the suit with a prayer for a decree of ejectment and recovery of khas possession of the suit property. During pendency of the suit Krishna Rani Bhuiya executed a lease deed in favour of one Debkumar Khan. 3. Mr. Roychowdhury submits that it would appear from the registered sale deed that Krishna Rani Bhunia is the shebait of the deity and fully in charge of management and administration of the said property, which was not in a position to maintain and repair it. The property was lying in most dilapidated condition for want of necessary repairs and maintenance for a long time and may collapse at any time. As per the lease deed the lessee was under obligation to pay rent at the rate of Rs. 4040/- for 99 years amounting to Rs. 3,99.960/- and the yearly rent is to commence from August, 2006. 4. Mr. Roychowdhury submits the lessee was authorised and empowered to make construction in the said premises and can make addition and alteration and renovation as an when necessary and for that purpose he is authorised to submit building plan to the Municipality and obtain the building plan in the name of the lessee. The lessee was also authorised and empowered to make and grant and convey the said premises, to sub-lease to any person or persons. The lessee is authorised and empowered to let out the rooms of the said premises to the tenants and can induct tenant and can evict the present tenant by or through competent court of law. The lessee is also entitled to collect rents and to grant rent receipts. The lessee is also entitled and authorised and empowered to evict the unauthorised occupants. The lessee is also entitled to collect rents and to grant rent receipts. The lessee is also entitled and authorised and empowered to evict the unauthorised occupants. As per clause (j) without consent of the lessor, the lessee can create any sublease and assign and can part with his lease-hold estate or interest in the said premises created under this presents. The lessee is authorised and empowered to proceed with the execution case on behalf of the lessor which is pending in the court of the Civil Judge (Junior Division) at Sealdah. 5. Mr. Roychowdhury submits that the present petitioner got a sub-lease from Debkumar Khan on the same terms and conditions of the lease entered into between Debkumar Khan and Smt. Krishna Rani Bhuia, shebait of the deity. 6. Mr. Roychowdhury submits that the petitioner being the sub-lessee having same right as the lessee was having and authorised to execute the decree in the execution proceeding. In the instant case the suit was decreed against the opposite party nos.1 to 4 and the decree was executed. However, opposite party nos.1 to 4 being the defendants in the eviction suit filed an appeal being Title Appeal No.29 of 2012. 7. Mr. Roychowdhury submits in that appeal the petitioner being the sub-lessee moved an application under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure contending therein that he has a direct interest in respect of the property in question and therefore, he should be added as party to the proceedings. 8. Mr. Roychowdhury submits, in the application for addition of party it was specifically stated that property was leased out on 14th August, 2006 by the deity represented by Smt. Krishna Rani Bhuia, sole shebait of the deity to Sri Debkumar Khan who is the lessor of the said premises for the period of 99 years. Thereafter the said lessee transferred the property by making a registered deed of sub-lease dated 26th October, 2007 in favour of the petition on the same terms and conditions. In view of that sub-lease the sublessee Debasish Batabyal got the possession of the said property except the tenanted portion and three rooms and he is in occupation and possession of the said property as Nilmoni Bhuiya delivered the remaining portion of the said property on 28th June, 2012 and took a sum of Rs. 5,000/- for delivery of possession. In view of that sub-lease the sublessee Debasish Batabyal got the possession of the said property except the tenanted portion and three rooms and he is in occupation and possession of the said property as Nilmoni Bhuiya delivered the remaining portion of the said property on 28th June, 2012 and took a sum of Rs. 5,000/- for delivery of possession. 9. Mr. Roychowdhury submits that the petitioner made a prayer for addition of party stating that the petitioner is necessary party for adjudication of the real controversy between the parties. He submits that presence of the petitioner is necessary and he should be implicated in this proceeding/pending appeal. 10. Mr. Roychowdhury submits that to avoid all multiplicity of proceeding over the subject-matter the application was made since the issue could have been decided in the pending appeal. 11. Mr. Roychowdhury submits it was categorically pointed out that the proposed party i.e. the petitioner has a defined, subsisting, direct and substantive interest in the litigation of the suit property which interest is either legal or equitable, which right is also cognisable in law. 12. Mr. Roychowdhury submits that the learned Court below while considering the application filed by the petitioner rejected the prayer of the petitioner on the ground that the petitioner had due knowledge about the pendency of the suit before the Court below at the time of execution of the agreement and transfer was made without obtaining any leave from the Court. It was further observed that the present petitioner in spite of having knowledge about the pendency of the suit before the Court below did not care to make any application to implead him as party to the suit rather he kept mum for so many years. Thus from the petition filed by the petitioner it appears that the petitioner has not come out before the Court with clean hand and considering the provisions of Section 52 of the Transfer of Property Act, i.e. doctrine of lis pendens rejected the application for additional of party. 13. Mr. Roychowdhury submits that whatever right, title and interest over the property the lessee had, was conveyed and transferred to the sub-lessee, the petitioner herein. From the clauses referred by him would definitely show that the petitioner has his right in respect of the property in question. 14. Mr. 13. Mr. Roychowdhury submits that whatever right, title and interest over the property the lessee had, was conveyed and transferred to the sub-lessee, the petitioner herein. From the clauses referred by him would definitely show that the petitioner has his right in respect of the property in question. 14. Mr. Roychowdhury submits that the Hon'ble Apex Court in catena of decisions held in suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest. 15. Mr. Roychowdhury referred to a decision of three-Judges' Bench of the Hon'ble Apex Court reported in A.I.R. 1958 S.C. 886 (Razia Begum v. Sahebzadi Anwar Begum and ors.). He also cited one other decision reported in A.I.R. 2005 S.C. 2209 (Amit Kumar Shar and anr. v. Farida Khatoon and anr.). 16. Mr. Roychowdhury submits that plain reading of the lease agreement shows that the petitioner has a direct interest over and in respect of the property in question and further he was given the right to execute a decree passed in the suit. 17. Mr. Roychowdhury also cited other decisions reiterating the same view of the Hon'ble Apex Court. Mr. Roychowdhury submits that the order passed by the learned Court below ought to be set aside and this Court is to see whether the petitioner has a direct interest in the suit as well as in the property. If it is found by the Court that the petitioner has a direct interest over the property as well as in the suit then he should be added as a party in the proceeding and the learned Court below is wrong on its decision. Therefore, according to him, the order passed by the learned Court below should be set aside and the petitioner's application for addition of party be allowed by this Court or be remanded to the Court below for fresh consideration. 18. Mr. Mukhrejee, learned Counsel appearing for the opposite party Nos. 1 to 4/respondents/judgment-debtors/appellants submits that the petitioner is aware of the suit which was pending for a long time. 18. Mr. Mukhrejee, learned Counsel appearing for the opposite party Nos. 1 to 4/respondents/judgment-debtors/appellants submits that the petitioner is aware of the suit which was pending for a long time. Even in spite of having knowledge about the suit he never made an application for being added as party to the suit and at the belated stage he has come when there is an application filed by the plaintiff and the judgment-debtors i.e. the opposite parties in this proceeding and the application, which is for compromise, is pending before the learned Court below. 19. Mr. Mukherjee submits that provisions of Section 52 of the Transfer of Property Act i.e. doctrine of lis pendens would hit the case of the petitioner. According to Mr. Mukherjee, unless leave is granted by the learned Court below the lease cannot be given effect to. He also submits that issue involved in the suit is relating to the eviction of the opposite party nos. 1 to 4. The sub-lessee, in fact, has no interest in the matter. He has no direct connection with the issues framed in the eviction suit. 20. Mr. Mukherjee submits that the petitioner is a stranger, his presence is not at all necessary for disposal of the suit. 21. Mr. Mukherjee further submits that this Court is to see what is the question involved in the suit. According to him, Court is not required to go into the fact or the right if not flow from the lease deed, which is not a question in the pending suit. 22. Mr. Mukherjee submits that in view of the Hon'ble Apex Court judgment delivered in case of (Sanjay Verma v. Manik Roy & Ors.) reported in A.I.R. 2007 S.C. 1332, to the effect that during pendency of the suit if any alienation is made then it will in no manner affect the rights of the other party under the decree which may be passed in the suit unless the property was alienated with the permission of the Court. 23. Mr. Mukherjee also submits that on similar point there are two other judgments of this Court, one is reported in 2008 (3) I.C.C. 773 (Padmavati Estate Pvt. Ltd. v. Sm. Kusum Agarwal & Ors.) and the other one is 2008 (3) I.C.C. 776 (Pabitra Construction & Co. v. UCO Bank & Ors.). 24. Mr. 23. Mr. Mukherjee also submits that on similar point there are two other judgments of this Court, one is reported in 2008 (3) I.C.C. 773 (Padmavati Estate Pvt. Ltd. v. Sm. Kusum Agarwal & Ors.) and the other one is 2008 (3) I.C.C. 776 (Pabitra Construction & Co. v. UCO Bank & Ors.). 24. Mr. Mukerjee submits that the learned Court below has rightly rejected the application filed by the petitioner. He submits that no question, if at all involved in the petition, is required to be decided in the pending suit. There is no scope to decide petitioner's right, title and interest over the property involved in the suit. 25. Mr. Mukherjee submits that the order passed by the learned Court below should not be interfered with. 26. Mr. Hiranmoy Bhattacharya, learned Counsel appearing for the deity, represented by shebait being the successor of Krishna Rani Bhuiya submits that in fact the petitioner wanted to be added in the proceeding to get his right, title and interest adjudicated. 27. Mr. Bhattacharya submits the issue of this case relates to eviction of the trespassers. 28. Mr. Bhattacharya then submits that it is not the interest in respect of the suit property but it is a question involved in the suit as required to be taken into consideration. This Court is to see what question is involved in the suit. Whatever right may flow from the lease deed that cannot be a question since it was eviction suit between the landlord and the tenant. 29. Mr. Bhattacharya further submits that it was a question of eviction. The addition of party will unnecessarily not help the learned Court below to dispose of the appeal. In case this addition is allowed the decree would be set aside and the case may be a remand for rehearing and for settling a dispute, which is foreign to the suit. 30. Mr. Bhattacharya then submits that the petitioner had knowledge about the suit and he himself was a party to the execution. At the time of execution of the decree he has put his signature. 31. Mr. Bhattacharya submits that in case he is an occupant of any portion of the suit property he can resist and there are provisions under the Code in that regard. 32. Mr. Bhattacharya referred the provisions under Order 21 Rules 97, 98, 99, 101 and 103. Referring Rule 101 Mr. 31. Mr. Bhattacharya submits that in case he is an occupant of any portion of the suit property he can resist and there are provisions under the Code in that regard. 32. Mr. Bhattacharya referred the provisions under Order 21 Rules 97, 98, 99, 101 and 103. Referring Rule 101 Mr. Bhattacharya submits if any question arises at the time of execution relating to the suit the same could also be decided and adjudicated if any proper application is taken out under Order 21, Rule 101 of the C.P.C. 33. Mr. Bhattacharya submits that the provisions under Section 52 is applicable in the instant case since no leave was granted before granting of this lease the petitioner cannot be impleaded as party in this proceeding. According to Mr. Bhattacharya, this decision of the learned Court below is lawful and valid and not to be interfered with. 34. Considered the submissions made by the learned Counsel appearing for the respective parties. The facts which are all admitted that the deity was represented by one Krishna Rani Bhuiya. Krishna Rani entered into an agreement for lease of the property for 99 years on some considerations. The relevant clauses of the lease giving right to the lessee in respect of the property are quoted hereinafter:- "The Lessee for the period of 99 (Ninety-nine) years commencing from 1st day of August, 2006 yielding and paying the yearly rent at the rate of Rs. 4040/- (Rupees Four thousand Forty) only for 99 years rent, amounting to Rs. 3,99,960/- (Rupees Three lakhs Ninety-nine thousand Nine hundred Sixty) only. The yearly rents will commence from August, 2006 and the rents for 99 years are being paid to the Lessor by the Lessee. 4040/- (Rupees Four thousand Forty) only for 99 years rent, amounting to Rs. 3,99,960/- (Rupees Three lakhs Ninety-nine thousand Nine hundred Sixty) only. The yearly rents will commence from August, 2006 and the rents for 99 years are being paid to the Lessor by the Lessee. AND THE LESSEE covenants with the Lessor the following terms and conditions to be observed and performed on the part of the Lessee and as such the Lessor in exercise of all powers, authorities and liberties vested in her as such Shebait do hereby and hereunder grant demise and assure as and by way of lease unto and to the use of the Lessee the property fully mentioned and described in the Schedule "A" TO HAVE AND TO HOLD the same only for a term of 99 years as hereunder contained i.e. until the 31st day of July, 2105 AND THAT the Lessee do covenant and agreed with the Lessor as follows:- "(d) The lessee is entitled to make construction in the said premises and can make addition and alteration and renovation as an when necessary and for that purpose is authorised to submit building plan to the Municipality for such construction, addition and alteration and renovation and obtain the building plan in the name of the lessee. (e) That the lessee is authorised and empowered to make and grant and convey the said premises to sub-lease to any person or persons. (f) The lessee is authorised and empowered to let out the rooms of the said premises to the tenants and can induct tenant and can evict the presents tenants by or through competent court of law. The lessee is also entitled to collect rents and to grant rent receipts. (h) The Lessee is entitled and authorised and empowered to evict the unauthorized occupants within the premises and for that purpose can file suit application and appeal in the court of law. (j) Without the consent of the Lessor, the Lessee can create any sub-lease and assign and can part with his lease hold estate or interest in the said premises created under this presents. (i) The said premises is at present occupied by illegal occupants. The Lessee is hereby authorised and empowered to proceed with the execution case on behalf of the Lessor which is pending in the Court of the Civil Judge (Junior Division) at Sealdah." 35. (i) The said premises is at present occupied by illegal occupants. The Lessee is hereby authorised and empowered to proceed with the execution case on behalf of the Lessor which is pending in the Court of the Civil Judge (Junior Division) at Sealdah." 35. Deb Kumar Khan, lessee and Debasish Batabyal, sub-lessee entered into a registered deed of sub-lease. It is evident and clear from the clauses that the sub-lessee Debasish Batabyal has got the same right like the original lessee Deb Kumar Khan. In view of the aforementioned two lease deeds Debasish Batabyal has a direct interest in the subject suit property. Whatever may be the result of the appeal in case the appeal is allowed or dismissed the petitioner would definitely suffer the consequence. The Hon'ble Apex Court in case of (Sanjay Verma v. Manik Roy & ors.) (supra) referred by Mr. Mukherjee have held that if a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. Therefore, the judgment is quite clear in one respect if no leave is obtained at the time of execution of the lease then whatever may be result or the outcome of the suit the party who has entered into such agreement would suffer the result of the litigation. But in this case the fact is different, the plaintiff and the defendant are not contesting but they are entering into a compromise and that too after execution of the decree in which the petitioner is a party and he put his signature. Thus the compromise may be made, against petitioner's interest who was a party to the execution. Therefore there is exception in this case. The ratio of the judgment is not applicable. Therefore, under no circumstances it could be said since no leave was obtained petitioner cannot have any interest in respect of the property or he would not be bound by the result of the litigation. Therefore there is exception in this case. The ratio of the judgment is not applicable. Therefore, under no circumstances it could be said since no leave was obtained petitioner cannot have any interest in respect of the property or he would not be bound by the result of the litigation. If it could be found that he has direct interest over and in respect of the property in respect of which the litigation is continuing definitely he is a necessary party in this proceeding because any order passed in the proceeding may affect his right, title and interest and no fresh suit would give relief to him. Since the property involved in this case is the property in the lease agreement and the eviction suit relates to the same property, the petitioner having right to execute the decree, to make construction, to induct tenant etc. has every right to be added as party. Moreover, since the suit is not contested and a compromise is taking place keeping the petitioner in dark, the petitioner has every right to be added as party to the proceedings. However, it is also evident that petitioner has direct interest in the property. Therefore, the ratio of the judgment cited by Mr. Roychowdhury reported in A.I.R. 2005 S.C. 2209 : 2005 (3) ICC (S.C.) 65 (Amit Kumar Shaw and anr. v. Farida Khatoon and anr.) clearly applicable. The Hon'ble Apex Court have held that transferee pendente lite can be added as a proper party if his interest in the subject-matter of suit is substantial and not just peripheral. On that score the order impugned passed by the learned Court below is not sustainable. 36. So far the other judgments cited by Mr. Bhattacharya and Mr. Mukherjee are concerned, those judgments are also speaking in the same tune. 37. The other Hon'ble Apex Court judgment in case of Razia Begum v. Sahebzadi Anwar Begum & ors. (supra) it was held that in a suit relating to the property in order that the person may be added as party, he should have a direct interest as distinguished from a commercial interest. This three Judges' Bench decision of the Hon'ble Apex Court is still a good law and followed in several other cases. Therefore, there is no scope to take a different view from what has been held in case of Razia Begum (supra) and Amit Kr. Shaw (supra). This three Judges' Bench decision of the Hon'ble Apex Court is still a good law and followed in several other cases. Therefore, there is no scope to take a different view from what has been held in case of Razia Begum (supra) and Amit Kr. Shaw (supra). 38. However, the judgment cited by Mr. Bhattacharya and Mr. Mukherjee are on different set of facts. No such judgment was shown to the effect that if a party having right, title and interest over the suit property added in the suit would cause prejudice to the plaintiff or opposite party or it would be against the provisions under Order 1, Rule 10 (2) of the Code of Civil Procedure. In my view, the judgment cited by Mr. Bhattacharya and Mr. Mukherjee are of no application in the facts and circumstances of this case. Accordingly, if any adverse order is passed in the proceeding or any compromise is entered upon behind the back of the petitioner, the petitioner would be adversely affected. He has also direct interest in respect of the property being the sub-lessee. Therefore, the order passed by the learned Court below is erroneous in law and as such not sustainable. The order impugned passed by the learned Court below is thus set aside. The petitioner is added as proforma opposite party in the appeal.