JUDGMENT : The dispute relates to a very valuable property situated at the Commercial Hub of Calcutta being Premises No.2, Jawaharlal Nehru Road, Kolkata – 700013 formerly known as Chowringhee Road. Two suits have been filed in relation to the said property, namely, Suit No.1059 of 1954 (Deboprasad Gooptu Vs. Prafulla Kumar Mitra) and C.S. No.524 of 1984 (Shankarananda Banerjee & Ors. Vs. Smt. Aruna Basu Mullick & Ors.). For the sake of brevity and convenience Suit No.1059 of 1954 is referred to as the “first suit” and C.S. No.524 of 1984 as the “second suit”. Shorn of details, Deboprasad Gooptu of No.5/4 Rammoy Road, Calcutta was the owner of the said property. Probodh Chandra Mitra of No.23, Elliot Road, Calcutta was a monthly tenant under Deboprasad Gooptu. Probodh during his lifetime used to carry on a hotel business in the said premises under the name and style of “Bristol Hotel” as sole proprietor thereof. Probodh died on 12th June, 1949 without leaving any male descendants. After his death, his nephew Prafulla Kumar Mitra obtained probate of an alleged Will of Probodh and on a representation that after the death of Probodh, he became the sole proprietor of the hotel business he was inducted as monthly tenant by Deboprasad Gooptu since 1950. The rent was reduced from Rs.2800/- to Rs.2500/- per month by mutual consent. Thereafter, Prafulla continued to carry on the hotel business in the said premises as a sole proprietor thereof until he was appointed as Receiver of the said hotel business. On or about 15th February, 1951, one Nibaran Mitra, a nephew of Probodh filed an application before the District Judge, Alipore, for revocation of the grant of probate being Revocation Case No.8 of 1951 in which an order was passed appointing Prafulla as a Receiver in respect of the said Hotel business. Even after his appointment as Receiver Prafulla continued to occupy the said premises as a tenant under Deboprasad Gooptu on the same terms and conditions under which Prafulla occupied the said premises prior to his appointment as Receiver. Prafulla was a habitual defaulter. By reason of defaults in payment of rent, large sums of money became due and payable by him to Deboprasad. Prafulla was a habitual defaulter. By reason of defaults in payment of rent, large sums of money became due and payable by him to Deboprasad. Deboprasad by a notice in writing dated 12th August, 1953 determined the tenancy and called upon Prafulla to deliver peaceful possession of the premises on the expiry of month of August, 1953. Prafulla did not make over possession. Deboprasad, accordingly, filed a suit on 5th April, 1954 in this Court being Suit No.1059 of 1954, inter alia, for decree for khas possession and for recovery of a sum of Rs.21500/-. By an order dated 29th May, 1959, the learned District Judge, Alipore revoked the probate in respect of the Will of Probodh in favour of Prafulla as a result whereof the original proceedings of probate of the Will of Prafulla had revived. After the revocation, Prafulla, however, continued to occupy the said premises and pursued the appeal. In the first suit on 17th June, 1960, an ex parte decree was passed in favour of Debo Prosad. Prafulla preferred an appeal being Appeal No.106 of 1960. The appeal was disposed of on 11th September, 1963, on the basis of terms of settlement filed by the parties. The ex parte decree was set aside as also all the earlier orders. The said terms of settlement, inter alia, contains the following terms:- “3. The payments made by the defendant to the plaintiff, the payments made by the defendant to the Corporation of Calcutta on account of the rates and taxes of the premises in suit and the amounts collected by the Corporation of Calcutta from the defendant’s sub-tenants on account of such rates and taxes upto this day and also payments and disbursements under Clause 9 hereunder shall be dealt with and/or adjusted as follows: (a) All payments made by the defendant to the plaintiff or to his Solicitors after the institution of the suit, and upto this day and also such payments under Clause 9 hereof will be regarded as payments made to the plaintiff by the defendant towards the plaintiffs dues, if any, in this suit. (b) All payments made or to be made by the defendant to the Corporation of Calcutta and/or collected or to be collected by the Corporation of Calcutta from his sub-tenants on account of rates and taxes of the premises in suit including payments of such rates and taxes to be made under Clause 9 hereof are to be adjusted against the plaintiff’s dues, if any, in this suit provided that the plaintiff will be entitled to contend that the plaintiff is not liable to pay or bear the amount of any increase in or enhancement of the Municipal rates and taxes in respect of the suit premise, since the filing of the suit and the defendant will be entitled to dispute all such contentions of the plaintiff. 4. The suit is sent back to the original court for trial. 5. Subject to Clause 9 hereunder, the defendant will be entitled to defend the suit. 9. There will be an order under Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 that the defendant shall monthly and every month deposit in Court the sum of Rs.2,500/- for rent of the premises in suit, after deducting therefrom, the sum of Rs.500/- monthly and every month, towards payment of Corporation Rates and Taxes of the said premises. The first of such deposits for the month of August to be made within 15 days of the date hereof, and for the month of September by the 15th October, 1963 and thereafter by the 15th of every succeeding month. On failure of deposit as aforesaid within the time as aforesaid the defence against ejectment in this suit be struck out. The plaintiff may, from time to time apply to the Court for permission to withdraw the amounts so deposited and the defendant will have no objection to such withdrawal. The Registrar O.S. to accept such deposits on behalf of the Court. 12. (a) By the use of the word “rent” in Clause 9 of these presents the plaintiff does not admit the continuation of the defendant’s tenancy. The Registrar O.S. to accept such deposits on behalf of the Court. 12. (a) By the use of the word “rent” in Clause 9 of these presents the plaintiff does not admit the continuation of the defendant’s tenancy. (b) By the use of the expression “sub-tenant” in these presents the plaintiff does not admit that there are (i) any sub-tenants of the defendant (ii) or that the sub-tenancies, if any, are valid or binding on the plaintiff.” During the pendency of the suit on 3rd April, 1965, Prafulla died and thereafter by an order dated 14th August, 1965 the death of Prafulla was recorded and his heirs and legal representatives, namely, Subarnabala Mitra, since deceased, Smt. Aruna Basu Mullick and Pramil Kumar Mitra, the defendants Nos.1 and 2 herein, were substituted in the place and stead of the said Prafulla Kumar Mitra. The Will of Probodh remained unprobated. During the pendency of the first Suit, Debaprasad, died leaving a Will dated July 16, 1963. Dhruba was the sole Executor under the Will of his father Debaprasad Gooptu and also sole beneficiary. Dhruba obtained the Probate of the said Will on October 11, 1977. Aruna Basu Mullick claimed to be the legal representative of Prafulla by virtue of an alleged Will left by Prafulla. Subarnabala and Pramil were the wife and son of Prafulla who would be the heirs and legal representatives of Prafulla on intestacy. Aruna continued to remain in occupation of the property in question and had been paying rent initially to the original plaintiff and, thereafter, to Druba Gooptu, the son of Deboprasad until December, 1977. In the meantime, Dhruba appears to have entered into an agreement dated 22nd November, 1974 with the then partners of Bando & Co. who were the original plaintiffs in the second suit authorising them to conduct the first suit at their costs and expenses in the name of Dhruba till its final conclusion and pursuant thereto on 22nd November, 1974, Dhruba executed a general power of attorney in favour of Bando & Co. One of the conditions of the said agreement was that Bando & Co. One of the conditions of the said agreement was that Bando & Co. shall keep in deposit with the lessor a sum of Rs.1 lakh as security without any interest being the price of the building materials of the demised premises till such times vacant possession of the demised premises is obtained by the lessee and such sum would be appropriated by the lessor after vacant possession of the demised premises is obtained by the lessee. Pursuant to the said agreement Bando & Co. deposited a sum of Rs.1 lakh with the lessor. Thereafter, Dhruba Gooptu executed a deed of lease on 6th February, 1978 in favour of Bando & Co. for a term of 99 years which, inter alia, contains the following terms:- “a) That the lessee paying the rent hereby reserved and observing and performing the several covenants and stipulations herein contained and on their part to be paid observed and performed shall quietly and peaceably held and enjoy the demised premises with the building constructions structures erections to be made and additions and/or alterations thereto during the term without any interruption by the lessor or any person or persons lawfully or equitably claiming from under or in trust for the lessor. (b) The Lessee shall be entitled to conduct the suit being Suit No. 1059 of 1994 pending in the High Court of Calcutta in the name and on behalf of the lessor provided however all costs of the pending suit shall hereafter be borne by the lessee.” On or about 22nd February, 1983, Dhruba Gooptu, the substituted plaintiff in the first suit died leaving a Will whereby he appointed Shri Shankarnarayan Gooptu and Naranarayan Gooptu, the defendants Nos.3 and 4 as his executors. The said executors, however, did not accept the rent from the plaintiff in terms of the said lease. Since, the defendants Nos.3 and 4, after the death of Dhruba Gooptu did not take any steps for substitution of their names in the place and stead of the said Dhruba Gooptu as plaintiffs in the said Suit No.1059 of 1954, the plaintiffs filed an application on 20th May, 1983 for recording the death of Dhruba Gooptu and for substitution of the names of the plaintiffs as plaintiffs in respect of the said suit. The said application was, however, rejected by the Court. The said application was, however, rejected by the Court. The plaintiffs contended that the plaintiffs have paid a sum of Rs.1 lakh as security in terms of the said lease and rent at the rate of Rs.2000/- per month to the said Dhruba Gooptu till his death on 22nd February, 1983 are entitled to exercise all its rights under the indenture of lease which the defendants are denying and are interested to deny. The plaintiffs alleged that the hotel business has been closed since long and the entire demised premises has been sub-let by the defendant nos. 1 and 2 to various tenants at a low rents upon receiving huge amount as ‘Salami’. The plaintiffs claimed that the defendant nos. 1 and 2 were collecting rents, issues and profits from the tenants and/or occupiers of the said property much exceeding the sum of Rs.2000/- per month and are misappropriating the said income thereof for their own use and benefits. Inasmuch as the tenancy of Profulla Kumar Mitra was determined by notice dated 12th August, 1953 the defendant nos.1 and 2 being heirs and legal representatives of the deceased are bound by the same. The lease is valid and subsisting and none of the defendants have any right to interfere with the exercise of right by the plaintiffs as lessee in respect of the said premises. Under such circumstances, in or about July 25, 1984, the plaintiff filed the second suit for recovery of possession from the defendant Nos.1 and 2 and a declaration that the deed of lease dated 6th February, 1978 between Dhruba and the partners of Bando & Company are subsisting and binding upon the defendant Nos.3 and 4. The cause of action in the suit would appear from Paragraph 38 of the plaint which reads:- “38. Plaintiffs state that the tenancy right of the said Prafulla Kumar Mitra, since deceased was duly determined by notice dated 12th August, 1953 as aforesaid and in the premises the defendant nos.1 and 2 have no right whatsoever to remain in possession of the said premises and/or to collect the rents, issues and profits from the tenants of the demised premises as aforesaid. Even if they succeed in establishing that they are the rightful heirs of the said Prafulla Kumar Mitra they cannot claim any protection under the West Bengal Premises Tenancy Act, 1956 as they have defaulted in payment of rent from December, 1977 and have wrongfully sublet the said premises.” In the suit, at a much later time, the defendant No.1 had entered appearance and filed a written statement on December 20, 2016 in which in Paragraphs 6, 11 and 12 of the Written Statement, the said defendant had raised an objection with regard to maintainability of the suit and asserted that subletting had taken place during the lifetime of Probodh. The said Paragraphs read:- “6. The defendant denies and disputes the allegations made in paragraphs 33 and 34 of the plaint as if specifically traversed. This defendant states that the entire demised premises has been sublet since long time back much before the original defendant No.1 became the landlady inasmuch as the original tenant Probodh Chandra Mitra was permitted by the then landlord Deva Prasad Gooptu to sub-let the said premises. 11. The suit is liable to be dismissed in limine inasmuch as the suit is barred by the West Bengal Premises Tenancy Act, 1956. 12. The present plaintiffs are not entitled to pursue the instant suit in place and stead of the original plaintiffs or to claim any relief whatsoever.” The other defendants in spite of service of summons did not enter appearance in the suit and contest the suit. On such defences being disclosed in the Written Statement, Justice Shivakant Prasad at the time of trial of the suit by an order dated 11th January, 2017 framed the following issues for trial:- “1. Is the suit maintainable ? 2. Is the suit barred by law of limitation ? 3. Whether the terms, conditions and clauses as contained in the registered indenture of lease dated February 6th, 1978 are valid, subsisting and binding upon the present plaintiffs of the instant suit ? 4. Whether the defendant Nos. 1 and 2 have any right, title or interest over and above premises Nos.2, Jawaharlal Nehru Road, Kolkata ? 5. Whether the defendant Nos. 1 and 2 have any right to collect rents, issues and profits from premises No.2, Jawaharlal Nehru Road, Kolkata? 6. 4. Whether the defendant Nos. 1 and 2 have any right, title or interest over and above premises Nos.2, Jawaharlal Nehru Road, Kolkata ? 5. Whether the defendant Nos. 1 and 2 have any right to collect rents, issues and profits from premises No.2, Jawaharlal Nehru Road, Kolkata? 6. Whether the tenancy created by Debaprasad Gooptu in favour of Profulla Kumar Mitra, both since deceased, have been determined and the same is binding on the heirs of Prafulla Kumar Mitra ? 7. Whether the plaintiffs are entitled to the reliefs as claimed in the suit ? 8. To what other reliefs, if any, are the plaintiffs entitled?” This suit has been compromised between the plaintiffs and the defendant No.1 on 3rd May, 2017. The names of the defendant Nos.2, 3 and 4 were expunged. The terms of settlement, inter alia, contains the following terms:- (a) It is declared that the indenture of lease dated February 5, 1978 is binding on all concerned including the estate of Prafulla Kumar Mitra, since deceased and also upon their agents, assigns and representatives and persons claiming through or under them. (b) It is declared that the tenancy created by Debaprasad Gooptu in favour of Prabod Chandra Mitra in respect of the said premises no. 2, Jawaharlal Nehru Road has been duly determined and / or has been terminated by due process of law and the same is also binding upon the heirs and legal representatives of Prabod Chandra Mitra. (c) It is declared that the plaintiff shall be entitled to recover peaceful and vacant possession of the said premises by evicting the defendant no. 1 and the persons in possession and occupation of the said premises to the defendant no. 1 or her predecessor-in-interest. The plaintiff shall be entitled to recover possession from the occupants of the said property by executing the decree to be passed herein. (d) The defendant nos. 2, 3 and 4 “should be deemed to have been expunged as party defendant in this suit.” (e) No relief is being claimed as against them or any of them. (f) The instant suit shall stand dismissed against the said defendants. On the strength of the decree passed on such terms this execution application has been filed. 2, 3 and 4 “should be deemed to have been expunged as party defendant in this suit.” (e) No relief is being claimed as against them or any of them. (f) The instant suit shall stand dismissed against the said defendants. On the strength of the decree passed on such terms this execution application has been filed. In this proceeding, the decree-holder prayed for eviction of a large number of occupants who had been in occupation in different portions of the premises through Prafulla and thereafter through Aruna. The issue which now arises for consideration is whether this decree is binding on the large number of occupants who had come to occupy different portions of the premises in question either through Probodh or through Aruna Basu Mullick and if they could be evicted in execution of the said decree. The learned Counsel for the parties has raised three principal objections to the enforcement of the said decree upon the occupants. Firstly, the cause of action in the earlier suit, namely, Suit No. 1059 of 1954 has extinguished with the death of Dhruba and the said suit has abated. The cause of action of the suit does not survive any further and at least not available to the present plaintiffs. Secondly, the suit was filed without notice to the defendant No.1 as well as upon the occupiers of the said building, accordingly, the said suit is not maintainable under the provisions of the West Bengal Premises Tenancy Act. Thirdly, a lease having already created in favour of Probodh by Deboprasad and the said lease continued to remain in force at the time when Dhruba had entered into a lease agreement with Bando & Company, the subsequent lease is void as concurrent lease in law is not permissible and, accordingly, Bando & Company could not have filed a suit for eviction of the defendant No.1 or the other defendants. The creation of concurrent lease in favour of the plaintiffs is illegal and not enforceable. The arguments on behalf of the obstructionists are made by Mr. Moloy Kumar Ghosh, Senior Advocate and Mr. A.K. Mukherjee, Advocate. The principal argument is made by Mr. Ghosh representing the partners of M/s. J. Biswas & Co. (hereinafter referred to as “JBC”). The partnership firm claims tenancy in respect of the suit premises since 1952. The arguments on behalf of the obstructionists are made by Mr. Moloy Kumar Ghosh, Senior Advocate and Mr. A.K. Mukherjee, Advocate. The principal argument is made by Mr. Ghosh representing the partners of M/s. J. Biswas & Co. (hereinafter referred to as “JBC”). The partnership firm claims tenancy in respect of the suit premises since 1952. Although, in paragraph 3 of the application, it is stated that JBC was inducted as a monthly tenant of the suit premises in the year 1962 by one Prafulla, predecessor-in-interest of the defendant No.1, Mr. Ghosh in course of submission has produced the following documents to show that JBC was in occupation of the said building since 1952:- (i) Licence dated November 14, 1952 issued by Chief Inspector of Explosives in India in favour of JBC for sale of gunpowder etc.; (ii) Licence for arms and ammunition dealers issued in favour of JBC in the year 1965, wherein there is referenced of a licence issued in the year 1949; (iii) Registered partnership deed of 1993, wherein earlier registered deed of partnership deed of 1962, is mentioned; (iv) Deposit slip filed before the Rent Controller for May, 1972; (v) Trade license for the year 1976-77 and 2017-18; and (vi) Sales Tax deposit slip for the year 1983. Subsequently upon the death of Prafulla Kumar Mitra on 3rd April, 1965 Mrs. Aruna Basu Mallick started receiving rents at the rate of Rs.350/- per month for the suit premises. Upon the death of Aruna Basu Mallick rents were received by the defendant no.1 on behalf of the estate of Aruna Basu Mallick, since deceased. The rent for the suit premises was increased to Rs.1000/- per month, JBC has disclosed the rent receipts for the month of January to June 2017. JBC contends that it is also making payment of maintenance charges, occupier’s share of taxes and surcharge for the suit premises. In proof of possession, Mr. Ghosh has in addition to the aforesaid documents have referred to the minutes of the meeting dated 12th July, 1985 held by the Special Officer appointed by this Court in the present suit and rent receipts of diverse dates starting from 2nd July, 1994 till 1st April, 2017 issued by Smt. Aruna Basu Mallick, the original defendant No.1 in favour of JBC. Mr. Mr. Ghosh submits that the applicant was unaware of any of the pending proceedings and it is from the copies of the documents disclosed by the plaintiff No.1 in this proceeding, for the first time, the applicants have come to know that on 25th July, 1984, the present suit being Suit No.524 of 1984 was instituted by Sankarananda Banerjee, Sumit Banerjee and Sambhu Banerjee, the original plaintiffs filed the suit against Smt. Aruna Basu Mallick and others claiming various reliefs. Mr. Ghosh submits that the plaintiffs without getting any formal decree for declaration as claimed in paragraphs (a), (b) and (c) of the plaint filed in C. S. No. 524 of 1984, have got the decree for possession. Mr. Ghosh has referred to Paragraph 38 of the plaint in C.S. No.524 of 1984 and submits that in the said paragraph, the plaintiffs have alleged two things, namely:- (i) The tenancy rights of Prafulla Kumar Mitra, since deceased was duly determined by the notice dated August 12, 1953 and the present defendant no. 1 and the original defendant no. 2 have no right whatsoever to remain in possession of the said premises and / or to collect the rent, issues and profit from the tenant of the demise premises; (ii) Even if the present defendant no. 1 and the original defendant no. 2 succeed in establishing that they are the rightful heirs of the said Prafulla Kumar Mitra, they cannot claim any protection under the West Bengal Premises Tenancy Act, 1956 as they have defaulted in payment of rent from December 1977 and have wrongfully sublet the said premises. On the basis of the said two alleged causes of action the plaintiffs have filed the suit being C.S. No. 524 of 1984 against the defendants therein. It is submitted that no decree could have been passed in the second suit on the basis of the notice dated 12th August, 1953 issued by Prafulla determining the tenancy of Debo Prasad on the ground of default in payment of rent and not on any other grounds. However, the instant suit has been filed both on the ground of default in payment of rent and subletting. These grounds are not available to the plaintiffs. In any event, no notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 has been served upon the defendant Nos.1 and 2. Mr. However, the instant suit has been filed both on the ground of default in payment of rent and subletting. These grounds are not available to the plaintiffs. In any event, no notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 has been served upon the defendant Nos.1 and 2. Mr. Ghosh has referred to Section 13(6) of WBPT Act, 1956 which provides, inter alia, that notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on the ground of— (a) Subletting by the tenant without the previous consent in writing of the landlord under Section 13(1)(a) of WBPT Act, 1956, and (b) Default of the tenant in payment of rent under Section 13(1)(i) of WBPT Act, 1956; shall be filed by the landlord unless he has given to the tenant one month’s notice expiring with a month of the tenancy. Mr. Ghosh has referred to the written statement of the defendant No.1 affirmed on 20th December, 2016 to show that the defendant No.1 has specifically raised the maintainability of the suit. It is submitted that at the time of settlement of the issues, all such objections were considered and specific issues were framed on maintainability of the suit, limitation and determination of tenancy by the notice dated 12th August, 1953. After the death of Dhruba on February 22, 1983, Shankar Narayan Gooptu (the defendant no. 3 herein) and Nara Narayan Gooptu (the defendant no. 4 herein), the Executors appointed under the Will of the said Dhruba did not make any application for substitution of their names in place and stead of the said Dhruba as plaintiff in Suit No. 1059 of 1954. The original plaintiffs in the second suit, as the lessee of the said premises made an application on or about May 20, 1983 in the first suit for recording the death of the said Dhruba and for substitution of their names as the plaintiffs in the first suit but the said application was rejected. Accordingly, the first suit had abated after the death of Dhruba. After abatement of the first suit no fresh suit can be brought on the selfsame cause of action based on the notice dated August 12, 1953 in view of the provision of Rule 9(1) of Order XXII of CPC, 1908. Accordingly, the first suit had abated after the death of Dhruba. After abatement of the first suit no fresh suit can be brought on the selfsame cause of action based on the notice dated August 12, 1953 in view of the provision of Rule 9(1) of Order XXII of CPC, 1908. In any event in view of Section 3 of the Limitation Act, 1963, this Hon’ble Court had or has no jurisdiction to pass any decree in the second suit on the basis of the alleged determination of the tenancy by Prafulla by a notice dated August 12, 1953. Inasmuch as the present suit being C.S. No. 524 of 1984 was filed on or about July 25, 1984, i.e., after more than 30 years for the alleged cause of action which allegedly arose on August 12, 1953. It is submitted that this Court could not have passed the decree dated 3rd May, 2017 in terms of the terms of settlement without deciding, inter alia – (I) Whether C. S. No. 524 of 1984 is barred by law of limitation? (II) Whether the tenancy created by Debaprasad Gooptu in favour Prafulla Kumar Mitra, both since deceased, has been determined and the same is binding on the heirs of Prafulla Kumar Mitra? The present plaintiffs and the present defendant no. 1, the signatories to the said purported terms of settlement, have committed fraud on this Hon’ble Court by suppressing the material fact that by the order dated February 15, 2016 passed by this Court, the Testamentary Suit No. 2 of 2001 arising out of PLA No. 225 of 1999 (In the Goods of : Aruna Basu Mullick, deceased) in which the present defendant no. 1 was appointed as the Administrator pendente lite was dismissed for default and accordingly as on the date of the passing of the said decree dated May 3, 2017 Jaysree Ghose could not have represented the estate of Smt. Aruna Basu Mullick, the original defendant no. 1 as Administrator pendente lite thereof. In the purported terms of settlement, Jayshree Ghose, the present defendant no. 1 has been described as “being the administrator pendente lite to the estate of Smt. Aruna Basu Mullick” and the decree dated May 3, 2017 has been passed in C. S. No. 524 of 1984 in accordance with the said terms of settlement. In the purported terms of settlement, Jayshree Ghose, the present defendant no. 1 has been described as “being the administrator pendente lite to the estate of Smt. Aruna Basu Mullick” and the decree dated May 3, 2017 has been passed in C. S. No. 524 of 1984 in accordance with the said terms of settlement. Inasmuch as the Testamentary Suit has been dismissed, the application for Grant of Probate (PLA No. 225 of 1999) does not survive and the order passed under Section 247 of the Indian Succession Act, 1925 appointing the present defendant no. 1 as the Administrator pendente lite over and in respect of the estate of Smt. Aruna Basu Mullick, deceased also does not survive. Accordingly, the present defendant no. 1 cannot represent herself as the legal representative of Smt. Aruna Basu Mullick, deceased in accordance with Section 211 of the Indian Succession Act, 1925. The decree dated May 3, 2017 is illegal, null and void, not binding and in-executable as against the applicants and the tenancy of the applicants in the said premises. Mr. Ghosh has referred to Clauses 7 and 8 of the said Lease Deed which read:- “7. The Lessee approached the Lessor to grant him a lease of the demised premises with the burden of the said suit upon payment of a monthly rent of Rs.2,000/- at present for the first five years which will be increased to Rs.3500/- on the lessee getting second possession of the demised premises and the Lessor agreed to the said proposal on terms and conditions hereinafter appearing. 8. By an Indenture dated 22nd December, 1974 the Lessor authorised the Lessee to conduct the said suit at the cost and expenses of the Lessee in the name of the Lessor till its final conclusion and pursuant the to the Lessor on the 22nd day of November, 1974 executed a General Power of Attorney in favour of the lessee.” Mr. Ghosh submits that it is clear from the aforesaid recital that the Lessor and the Lessee entered into an agreement (i.e. Indenture dated December 22, 1974) to enable the Lessee getting vacant possession of the demised premises by conducting Suit No. 1059 of 1954 instituted by the Lessor for eviction of Prafulla who was the monthly tenant in respect of the said premises. The rights and liabilities of the Lessor and the Lessee under Section 108 of the Transfer of Property Act, 1882 is subject to, inter alia, a contract to the contrary between the Lessor and Lessee of immovable property. Under clause (b) of Section 108 of the Transfer of Property Act, 1882 the Lessor is bound on the Lessee’s request to put him in possession of the property in absence of a contract to the contrary between the Lessor and the Lessee. In the present case, there is nothing on record to show that the original plaintiffs in C. S. No. 524 of 1984 made any request to the Lessor to put them in possession as required under clause (b) of Section 108 of the Transfer of Property Act, 1882. Moreover, in the present case the Indenture dated February 6, 1978 itself shows that there was a separate agreement between the Lessor and the Lessee contained in an Indenture dated December 22, 1974, as mentioned in Clause 8 of the Indenture dated February 6, 1978 whereby the Lessor authorised the Lessee to conduct the Suit No. 1059 of 1964 for eviction of Prafulla Kumar Mitra and other reliefs. The present plaintiffs in C. S. No. 524 of 1984 have not disclosed the Indenture dated December 22, 1974 and the General Power of Attorney dated November 22, 1974 as mentioned in Clause 8 of the said Indenture dated February 6, 1978. The said General Power of Attorney dated November 22, 1974 became inoperative on the death of Dhruba Gooptu on or about February 22, 1983. The said being Suit No.1059 of 1954 for eviction of Prafulla Kumar Mitra has also abated in 1983. It is submitted that the object of the Indenture dated February 6, 1978 is of such a nature that, if permitted, it would defeat the provision of section 13(6) of the WBPT Act, 1956 and consequently, the object of the said Indenture dated February 6, 1978 is unlawful. It is submitted that the object of the Indenture dated February 6, 1978 is of such a nature that, if permitted, it would defeat the provision of section 13(6) of the WBPT Act, 1956 and consequently, the object of the said Indenture dated February 6, 1978 is unlawful. The object of the said Indenture dated February 6, 1978 being unlawful, the lease purported to have been granted by Dhruba Gooptu (the Lessor therein) in favour of the original plaintiff of C. S. No. 524 of 1984 (the Lessee therein) is void and this Hon’ble Court has no jurisdiction to pass the Decree dated May 3, 2017 in C. S. No. 524 of 1984 which arises out of a void lease under the said Indenture dated February 6, 1978. Mr. Ghosh in this context has relied upon a decision of the Division Bench of this Court in Saleh Abraham v. Manekji Cowasji reported at 75 Indian Cases 521: AIR 1924 Cal 57 and submits that in the said decision it has been held that if the object of lease was to defeat the provisions of Rent Act, such object being unlawful the lease would be void. In the present case, prior to 1953 the said premises was let out to Prafulla and Prafulla continued to remain as a monthly tenant under Debo Prasad. After abatement of the first suit in 1983, the original plaintiffs could not have filed the second suit in 1984 on the basis of their right as lessee under Dhruba and on the basis of the same cause of action on which the first suit was filed. The alleged right of the plaintiff in the second suit if any is on the basis of the “concurrent lease” under Dhruba simultaneously with the monthly tenancy of Prafulla. Concurrent lease in respect of the selfsame premises is not permissible under our law. Mr. Ghosh in this regard has relied upon a Division Bench judgment of our Court in Sambhunath Mitra and Ors. v. Khaitan Consultant Ltd. and Ors. reported at AIR 2005 Cal. Concurrent lease in respect of the selfsame premises is not permissible under our law. Mr. Ghosh in this regard has relied upon a Division Bench judgment of our Court in Sambhunath Mitra and Ors. v. Khaitan Consultant Ltd. and Ors. reported at AIR 2005 Cal. 281 (para 30, 31, 32 & 33) and submits that in paragraph 33 of the said decision it has been held that that the Lessor can create a third party’s interest in the leasehold property either by creating sale deed or deed of exchange conveying Lessor’s right or making gift or creating mortgage, but having himself divested the right of enjoyment of the property and reserving only Lessor’s right, the Lessor further cannot create any lease. Mr. Ghosh concludes by submitting that in view of overwhelming evidence to show that JBC was in possession since 1952, the existence of a concurrent least at the time when the suit was instituted, the original suit filed by Deboprasad had abated and the provisions of the West Bengal Premises Tenancy Act were not followed, the decree is not enforceable against the present occupants and the decree is declared to be null and void. Mr. A.K. Mukherjee, the learned Counsel appearing for the other applicants occupants have adopted the submission made by Mr. Ghosh. However, in addition to the submission made by Mr. Ghosh, has submitted that the judgment-debtor No.1 did not have the required authority and capacity to enter into such terms of settlement, in view of the fact that on 15th February, 2016, the probate proceeding filed by the judgment-debtor No.1 in respect of the Will of Smt. Aruna Basu Mallick was dismissed for default being Testamentary Suit No.2 of 2001, and the same has not been restored till date. In such situation, the judgment debtor no. 1, who had been impleaded in the plaint filed in C.S. No. 524 of 1984 merely acted as an administrator to the estate of Smt. Aruna Basu Mullick and lost her right to enter into any such compromise on behalf of the estate of the deceased in any manner. As on 3rd May 2017, when the terms of settlement were signed and a consent decree was passed in terms thereof, the judgment debtor no. 1 had no right to give such consent or represent the said estate. Mr. As on 3rd May 2017, when the terms of settlement were signed and a consent decree was passed in terms thereof, the judgment debtor no. 1 had no right to give such consent or represent the said estate. Mr. Mukherjee submits that the terms of settlement is also vitiated by Section 20 of the Indian Contract Act, 1872 and is a void agreement, as on the date the terms of settlement was executed, the judgment-debtor No.1 ceased to act as “the administrator pendente lite to the estate of Smt. Aruna Basu Mallick” in view of dismissal of the probate proceeding on 15th February, 2016 and this mistake of fact has vitiated the said agreement. It is submitted that the terms of settlement was signed at a point of time when there was no existence of any partnership firm. Sankarananda Banerjee, Narayan Chandra Banerjee, Sambhu Nath Banerjee, Samir Kumar Banerjee, Hema Prava Devi and Uma Rani Banerjee were the original partners of Bando & Co. Subsequently, on 7th November 2014, a notice of change in the constitution of the firm was filed to bring on record Sambhu Nath Banerjee and Rita Banerjee as the partners of the firm, even while Sambhu Nath Banerjee had already expired on 4th April 2005. The date of induction of Rita Banerjee in the firm is unknown. By another notice of change in the constitution of the firm filed on the same date i.e. 7th November 2014, the names of Rita Banerjee and Mita Banerjee were recorded as the partners, even while the same document goes on to record that Rita Banerjee and Mita Banerjee both retired from the firm way back as on 2nd April 2014. It was on the same date i.e. on 2nd April 2014 that the decree holders were inducted into the firm and the notice of change in the constitution of the firm was filed on 17th December 2014, however, the same was registered with effect from 28th April 2014. It is thus evident that at the time when the present decree holders were inducted into the firm, there was no partnership firm alive in the name of Bando & Co. and as such, there was no way that the present decree holders could have become the partners in a dead firm. Questioning the manner in which the said compromise was entered into, Mr. and as such, there was no way that the present decree holders could have become the partners in a dead firm. Questioning the manner in which the said compromise was entered into, Mr. Mukherjee submits that the conspicuous absence of the defendant Nos.3, 4 and 5 and the mere recording in the terms of settlement to the effect that “the defendant Nos. 2, 3 and 4 in facts and circumstances stated hereinabove should be deemed to have been expunged as party defendants in this suit and … the instant suit shall stand dismissed as against the said defendants” would not suffice to make the terms of settlement a valid compromise between the parties to the suit under the provisions of Order 23 Rule 3. Mr. Mukherjee refers to the decision of the Hon’ble Supreme Court in Dwarka Prasad Agarwal Vs. B.D. Agarwal reported at (2003) 6 SCC 230 and submits that the law has been settled by the Hon’ble Supreme Court by stating that the terms of settlement needs to be signed by all the parties to the dispute and unless all the parties, put their signature in the manner as required under Order 23 Rule 3 of the Code of Civil Procedure, it cannot give rise to a valid settlement. Mr. Mukherjee has referred to the decision of our Court in Malchand Boid versus Osman Ali Mandal reported at AIR 1924 Calcutta 159 that “one test may be applied to determine whether the agreement or compromise is lawful; were the parties competent to enter into the agreement or compromise in order to achieve the purpose they had in view?” Applying the test to the facts of the present case, it is apparent that the judgment debtor no. 1 having had no right to enter into the terms of settlement as on 3rd May 2017, the settlement or compromise arrived at between the parties was unlawful, and hence, unenforceable. Mr. Mukherjee has also referred to Mulla’s Commentary on the Transfer of Property Act 1882 (12th Edition, page 852), in which it is stated that the lessee can maintain a suit on his lease for possession against the lessor and against any third person who may be in possession. Accordingly, the instant suit being C.S. No. 524 of 1984 is ex facie bad, illegal and incompetent owing to non-impleadment of the actual occupants of the building. Accordingly, the instant suit being C.S. No. 524 of 1984 is ex facie bad, illegal and incompetent owing to non-impleadment of the actual occupants of the building. The suit being incompetent, any compromise decree or any other decree passed in the suit would be ex facie void and a nullity in law. The applicants, being in actual physical possession, whose possession is being sought to be disturbed by such void decree, can obstruct the execution of the said decree and also seek declarations that the decree is inoperative and null qua the applicants. This the applicants can do without being required to prove any independent right. The bar contemplated in the judgment in Biswanath Poddar versus Archana Poddar reported in (2001) 8 SCC 187 would not be applicable in the instant case, since the non-notification of sub tenancies of the applicants would not obviate their impleadment in a suit filed by the lessee. It is only if the head lessor sues the lessee for possession that non-impleadment of non-notified sub-tenants would not vitiate the suit and would make such non-notified sub-tenants bound by the decree. Mr. Mukherjee has referred to a Division Bench judgment of the Kerala High Court in N. Subhakaran Vs. K. Rajamany reported at 1996 AIHC 1024 (DB) and submits that in the said decision it was held that a compromise decree, based on an agreement between two parties, can be attacked by another party who is affected by it on the ground that the agreement itself is vitiated. It is submitted that if a decree is a nullity, an obstructionist can raise such objection notwithstanding the fact that the obstructionist has no independent right of possession. Once such objection is raised, the burden lies on the decree holder to establish that the decree put in execution is a valid decree. The phrase “all questions” in Order 21 Rule 101 is followed by words that are merely illustrative and the same is not exhaustive. Hence the question as regards the validity of the decree to be executed falls within the purview of “all questions” to be decided by the executing court in an application under Order 21 Rule 101. In this context, Mr. Mukherjee relied upon the decision of the Bombay High Court in Mani Nariman Daruwala Vs. Phiroz N. Bhatena reported at AIR 1991 Bombay 328. Mr. In this context, Mr. Mukherjee relied upon the decision of the Bombay High Court in Mani Nariman Daruwala Vs. Phiroz N. Bhatena reported at AIR 1991 Bombay 328. Mr. Mukherjee submits that the aforesaid materials justified a fullfledged trial if required. Even otherwise it is clear that the decree is not enforceable against the present applicants. Per contra, Mr. Rohit Das, learned Advocate appearing on behalf of the plaintiff has submitted that the Decree Holders and/or their predecessors-in-interest (being the partners of the partnership firm, M/s. Bando & Co.) had the right to obtain vacant possession of the Suit Premises as lessees under the registered Indenture of Lease dated February 6, 1978 (hereinafter referred to as the “Lease Deed”) and therefore had the right to institute the suit, being C.S. No. 524 of 1984. Mr. Das has referred to the Testatum and Habendum of the lease deed, which states as follows: “NOW THESE PRESENTS WITNESS that:-I. In consideration of the rent and of the covenants and agreement hereinafter contained and on the part of the Lessee to be paid observed and performed the Lessor doth hereby demise unto the Lessee ALL THAT … [Description of the Suit Premises] … TOGETHER WITH all rights liberties privileges and benefits thereunto belonging to and all enjoyments in connection therewith TO HAVE AND TO HOLD the demised premises hereby demised or expressed or intended so to be unto the Lessee for a term of ninety nine years commencing from the Sixteenth day of February 1978 YIELDING AND PAYING unto the Lessor there-for for the first five years monthly rent of Rs. 2,000/- (Rupees Two thousand only). After the demised premises is made vacant by evicting the said defendant therefrom and on such eviction and making over vacant possession of the demised premises to pay rent to the Lessor at the rate of Rs. 3,500/- (Rupees Three thousand five hundred only) per month from the date of making over such vacant possession till the expiration of the said term of 99 years…” It is submitted that clauses 7 and 8 of the lease deed are in the nature of introductory recital and narrative recital respectively and does not define the rights and liabilities of the lessor and lessee. Mr. Mr. Das has referred to clause (c) Clause II, of the Lease Deed which states that: “The Lessee shall be at liberty to demolish the building contained in the demised premises and erect new building or buildings on the grounds thereof or portions thereof or to make additions and alterations to the existing premises as they may desire…” Mr. Das submits that under the said clause the lessee is given the liberty to demolish the building and erect new building or buildings on the said premises. Mr. Das submits that Clause III sub-clause (a) of the Lease Deed makes the right of the Lessee to obtain vacant possession of the Suit Premises clear and unambiguous. He further submits that the use of the word “entitled to” in subclause (b) of Clause III makes it clear that the right, power and/or authority of the Lessee to continue Suit No. 1059 of 1954 was one of the remedies available to the Lessee to obtain vacant possession and not in derogation of or a limitation on all other rights and remedies available at law to the Lessee to obtain vacant possession of the Suit Premises. It is submitted that Clause IV, sub-clause (a) of the Lease Deed makes it clear that the right of the Lessor to terminate the Lease Deed and re-enter the Suit Premises in case of non-payment of rent or any other breach by the Lessee, only arises once the Lessee has obtained “complete vacant possession of the demised premises from the Lessor on eviction of the defendant and other occupiers from the demised premises” and that too after the “Lessor gives notice in writing by registered post to the Lessee specifying the particular breach complained of and requesting the Lessee within three calendar months from the date of service of the notice to remedy the breach and the Lessee fails within three calendar months from the date of service of such notice to remedy the breach”. Mr. Das has further submitted that, Clause IV, sub-clause (b) of the Lease Deed allows the lessee to assign or sub-let the demised premises. All the aforesaid provisions of the Lease Deed make it amply clear that when Suit No. 1059 of 1954 abated due to no fault on the part of the Decree Holders and/or their predecessors-in-interest, and in spite of their best efforts. All the aforesaid provisions of the Lease Deed make it amply clear that when Suit No. 1059 of 1954 abated due to no fault on the part of the Decree Holders and/or their predecessors-in-interest, and in spite of their best efforts. In any event, the plaintiffs had an independent right as owners of an “interesse termini” and an independent cause of action to institute the instant suit, being C.S. No. 524 of 1984, for evicting the Judgment Debtor and/or her predecessors-in-interest who had wrongfully continued in occupation of the Suit Premises, and whose status was no better than a tenant by sufferance, a tenant holding over and/or a trespasser. Such right of the Decree Holders and/or their predecessors-in-interest is also recognised at common law and under the provisions of Section 108(A)(b) read with Section 109 of the Transfer of Property Act, 1882. In this regard, Mr. Das has relied on the following judgments:- (i) Prankrishna Dey vs. Biswambar Sein, reported in 2 B.L.R. A.C. 207; (ii) Achayya vs. Hanumantrayudu, reported in (1891) I.L.R. 14 Mad. 269; (iii) Bishen Sarup vs. M. Abdul Samad, reported in AIR 1931 All. 649; (iv) Md. Fazihzzaman vs. Anwar Husain, reported in AIR 1932 All. 314; (v) Janab E.M. Ghulam Dastagir Saheb vs. Marudai Pillai and Anr., reported in AIR 1948 Mad. 409; and (vi) Kondavati Naganna vs. Matukumilli Satyanarayana & Anr., reported in AIR 1958 A.P. 711 . The Learned Counsel has distinguished the decisions on concurrent lease, namely, Sambhunath Mitra (supra), Sheikh Songsor Ali (supra) by submitting that the said two decisions lay down the proposition that when there is already a valid and subsisting lease in favour of one tenant, a second lease by the landlord in favour of another person is invalid. However, in the facts of the instant case, the tenancy in favour of the Judgment Debtor’s predecessor-in-interest had already been determined and Suit No. 1059 of 1954 instituted by the landlord against the Judgment Debtor’s predecessor-in-interest was already pending, when the registered Indenture of Lease dated February 6, 1978 was executed by the landlord in favour of the Decree Holders and/or their predecessors-in-interest. The status of the Judgment Debtor and/or her predecessors-in-interest was no better than a tenant by sufferance, a tenant holding over and/or a trespasser. Mr. The status of the Judgment Debtor and/or her predecessors-in-interest was no better than a tenant by sufferance, a tenant holding over and/or a trespasser. Mr. Das has submitted that the judgment-debtor or her predecessors-in-interest had acquired no right under the West Bengal Premises Tenancy Act, 1956 and, therefore, the registered deed of lease dated 6th February, 1978 between the decree-holder and Dhruba cannot be said to be in contravention of the provisions of the Rent Control Act, 1950, inasmuch as C.S. No.524 of 1984 is not barred under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. It is submitted that Deboprasad instituted the suit after serving a notice dated 12th August, 1953, at a point of time when West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force. The suit was instituted under the provisions of the said Act, on the ground of default in payment of rent under Section 12(1)(i) read with proviso to Section 14(3) of the said Act. Prafulla was never a statutory tenant as under the proviso to Section 14(3) as he was not entitled to the benefit of protection against eviction under the Act of 1950. Prafulla only had a personal right of continuing in occupation till evicted by due process of law by way of a final decree. Mr. Prafulla was never a statutory tenant as under the proviso to Section 14(3) as he was not entitled to the benefit of protection against eviction under the Act of 1950. Prafulla only had a personal right of continuing in occupation till evicted by due process of law by way of a final decree. Mr. Das has referred to Sections 12(1)(i) and 14 of the Act of 1950 which reads:- “Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired: Provided that nothing in the Sub-section shall apply to any suit for decree for such recovery of possession: (i) Subject to the provisions of section 14, where the amount of two months' rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with section 19.” Section 14 “(1) If in a suit for recovery of possession of any premises from the tenant the landlord would not get a decree for possession but for clause (i) of the proviso to Sub-section (1) of section 12, the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under Sub-section (4) and effect thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three-eighths per centum per annum from the day when the rents became arrears up to such date, together with the amount of such cost of the suit as is fairly allowable to the plaintiff-landlord and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order. (2) Such date fixed for payment shall be the fifteenth day from the date of the order excluding the day of the order. (2) Such date fixed for payment shall be the fifteenth day from the date of the order excluding the day of the order. (3) If within the time fixed in the order under sub section (1), the tenant deposits in the court the sum specified in the said order, the suit, so far as it is a suit for recovery of possession of the premises, shall be dismissed by the court. In default of such payment the court shall proceed with the hearing of the suit: Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if he makes default in payment of the rent referred to in clause (i) of the proviso to Subsection (1) of section 12 on three occasions within a period of eighteen months.” (emphasis supplied) Mr. Das refers to Section 40 of the West Bengal Premises Tenancy Act, 1956 which came into force on 31st March, 1956 and repealed the Act of 1950 and submits that the said Section clearly saves pending proceedings as on 31st March, 1956 and any proceeding or remedy under the said Act and relating to the period before such repeal could be instituted or enforced as if the said Act of 1950 had been in force. The first suit continued and, therefore, the provisions of the West Bengal Premises Tenancy Act, 1956 do not apply to the said proceeding and the status of Prafulla has to be determined in relation to the Act of 1950 by reason of Section 42(2A) of the Act of 1950 which provides:- “(2A) For the removal of doubts it is hereby declared that notwithstanding any decision of any Court to the contrary, any proceeding pending on the 31st day of March, 1956 which was continued after that date and any decree passed or order made after that date in accordance with the provisions of the said Act in any such proceeding, shall be deemed to have been validly continued, passed or made, as if the said Act had been in force, and had not been repealed or had not expired, and no such proceeding, decree or order shall be called in question in any manner merely on the ground that the said Act was not in force when such proceeding was continued, decree was passed or order was made.” Mr. Das has referred to the order of the Division Bench dated 11th September, 1963 and submitted that the terms of settlement records an interim arrangements and in the order the words “rent” and “sub-tenants” used in the consent terms were never accepted by the plaintiff and a categorical assertion to that effect is recorded in the order. Debo Prasad had never recognized any “sub-tenants” of Prafulla and the sub-tenants, if any created by Prafulla, were and are illegal and not binding on the plaintiff, namely, Debo Prasad Gooptu. All rent paid by Prafulla Kumar Mitra and after his demise by his successor-in-interest, Aruna Basu Mullick was under Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. A bare perusal of Section 14(4) of the said Act would show that the rent paid thereunder is in the nature of occupation charges during the continuance of the suit, and cannot give rise to any rights under the West Bengal Premises Tenancy Act, 1956. A bare perusal of Section 14(4) of the said Act would show that the rent paid thereunder is in the nature of occupation charges during the continuance of the suit, and cannot give rise to any rights under the West Bengal Premises Tenancy Act, 1956. Section 14(4) of the said Act is reproduced hereunder: “If the tenant contests that suit, as regards the claim for ejectment, the plaintiff landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at the rate at which it was last paid and also the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within 15 days of the date of the order of the rent at such rate of any month by the 15th day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment and the landlord shall be entitled to withdraw the amount without prejudice to his rights and contentions.” (emphasis supplied) The registered Indenture of Lease dated February 6, 1978 in favour of the Decree Holders was entered into while Suit No. 1059 of 1954 was still pending, and therefore, due to the aforesaid provisions of Section 40(2A) of the West Bengal Premises Tenancy Act, 1956, the 1956 Act has no application to the said Lease Deed and the said Lease Deed cannot be said to be in contravention of the 1956 Act. It is submitted that the second suit is not wholly or only depending on the notice to quit dated 12th August, 1993 Mr. Das has summarised the causes of action of the second suit in the following manner: (i) The subject matter of the previous suit being suit no.1059 of 1954 was based on notice dated 12th August, 1953 issued under the Act of 1950. Das has summarised the causes of action of the second suit in the following manner: (i) The subject matter of the previous suit being suit no.1059 of 1954 was based on notice dated 12th August, 1953 issued under the Act of 1950. (ii) During the pendency of the same suit on 29th May 1959 the probate instead of Will of Probodh in favour of Prafulla was revoked and Prafulla was discharged from his receivership, as a result whereof Prafulla and his successor in interest became a trespasser or at the most a tenant by sufferance. (iii) During the pendency of the previous suit Aruna paid rent for the month of November, 1977 for the last time to Dhruba in terms of the consent order dated 11th September, 1963 passed in appeal no. 109 of 1960 and thereafter default in making payment of monthly rent and (iv) Prafulla and/or his successor in interest had inducted a large number of sub-tenant and/or occupants without having any right, power or authority to do so. It is submitted that in the light of the causes of action as pleaded in the second suit even after abatement of the previous suit, the second suit is saved and maintainable under the provision of Section 40(2)(b) of the West Bengal Premises Tenancy Act, 1956 and Section 13(6) of the 1956 Act as no manner of application. Mr. Das submits that the bar under Order 22 Rule 9(1) of the Code of Civil Procedure would not apply in the instant case. The bar only applies to the legal representatives of the original deceased plaintiff. The original plaintiffs, in the instant suit, were partners of M/s. Bando & Co. and were not the legal representatives of Dhruba. In fact, the original plaintiffs made all attempts to revive the previous suit. The application filed for substitution in the previous suit was rejected. In the second suit, the original plaintiffs are asserting their independent right on the basis of the deed of lease. Moreover, abatement of a suit does not give rise to res judicata, actual or constructive. In fact, explanation to Order 22 Rule 9 makes it clear. The cause of action referred to in Order 22 Rule 9 of the Code of Civil Procedure has to be strictly construed. The cause of action in the second suit is substantially different from the previous suit. In fact, explanation to Order 22 Rule 9 makes it clear. The cause of action referred to in Order 22 Rule 9 of the Code of Civil Procedure has to be strictly construed. The cause of action in the second suit is substantially different from the previous suit. The previous Suit was only on the basis of default in payment of rent under Section 12(1)(i) read with the Proviso to Section 14(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The additional grounds in the instant suit are that the Probate of the Last Will and Testament of Probodh Chandra Mitra was revoked, Prafulla Kumar Mitra and his successors-in-interest were rank trespassers, moreover they had inducted a large number of sub-tenants without the consent of the landlord. In such circumstances, Order 22, Rule 9 of the Code of Civil Procedure, 1908 is inapplicable. The instant suit, being C.S. No. 524 of 1984, was not barred by the laws of limitation. The instant Suit is primarily for possession of the Suit Premises by the Decree Holders and/or their predecessors-in-interest based on title derived from the said Lease Deed. Therefore, the Suit is governed by Article 65 of Part V of the Schedule to the Limitation Act, 1963 (“Limitation Act”) which prescribes 12 years as the period of limitation, starting from “When the possession of the defendant becomes adverse to the plaintiff”. The Judgment Debtor and her predecessors-in-interest, Prafulla Kumar Mitra and Aruna Basu Mullick never claimed adverse possession. Even assuming that the act of stopping payment of rent since January, 1978 is an overt act claiming adverse possession, the present Suit was filed in 1984, within 12 years. Assuming that adverse possession commenced from the date of the registered Indenture of Lease dated February 6, 1978, which cannot be, even then the present Suit filed in 1984 was within 12 years. Assuming that the right of adverse possession accrued to Aruna Basu Mullick from the date of abatement of the previous Suit No. 1059 of 1954 in 1983, the present Suit in 1984 is within the period of limitation. In fact even in the present Suit, Aruna Basu Mullick or her successor-in-interest never raised any plea of title adverse to the landlords, they only disputed the right of the Decree Holders and their predecessors-in-interest to maintain the Suit on various grounds. In fact even in the present Suit, Aruna Basu Mullick or her successor-in-interest never raised any plea of title adverse to the landlords, they only disputed the right of the Decree Holders and their predecessors-in-interest to maintain the Suit on various grounds. The reliefs of declaration claimed in the present Suit are only incidental to the relief for recovery of possession and therefore Article 58 of Part V of the Schedule to the Limitation Act does not apply. In this regard, Mr. Das has relied upon the following judgments:- (i) State of Maharashtra vs. Pravin Jethalal Kamdar, reported in AIR 2000 SC 1099 – Para. 5; and (ii) Pavan Kumar and Anr. vs. K. Gopalakrishna and Anr., reported in AIR 1998 AP 247 – Paras. 13 to 16. Mr. Das submits that the issues of maintainability of the suit were initially raised by Aruna Basu Mullick in the suit and such issues were considered and disposed of by an order dated 17th June, 1985, in which it is recorded that in October, 1977, the aforesaid Aruna Basu Mullick, obtained Probate of the Will of Prafulla Kumar Mitra. In the said Order, it has been categorically observed that in so far as Aruna Basu Mullick, Defendant No. 1 is concerned the case sought to be made out in the Plaint is that she is a trespasser. In this case Probodh Chandra Mitra was inducted by Deba Prosad Gooptu. Probodh Chandra Mitra died leaving a Will appointing Prafulla Kumar Mitra as an executor. Such grant of Probate has been revoked and the probate proceeding in respect of the Will of Probodh Chandra Mitra is still pending. Even the fact that Aruna Basu Mullick, Defendant No. 1 obtained the Probate of the said Will of Prafulla Kumar Mitra does not make her automatically executrix to the estate of Probodh Chandra Mitra. Probate proceeding in respect of the Will of Probodh Chandra Mitra is still pending. Aruna Basu Mullick, Defendant No. 1 cannot be treated as having any right, title or interest regarding the Will of Probodh Chandra Mitra merely because of her appointment as executrix in respect of the Will of Prafulla Kumar Mitra. Mr. Das has relied upon the following observations in the order:- “I have also carefully considered the provisions of Section 109 of the Transfer of Property Act. Mr. Das has relied upon the following observations in the order:- “I have also carefully considered the provisions of Section 109 of the Transfer of Property Act. It is pointed out by the said provisions and several decisions thereunder that a Lessee under such circumstances has some right in respect of the property even if it does not amount to reversion of the whole of interest of the Lessor.” ......“So far as the question of the suit being barred by limitation is concerned, if the Plaintiff’s contention is correct, then it is a case of continuous wrong and the question of limitation does not arise.” The challenge to the capacity of the judgment-debtor to enter into the terms of settlement is also without any basis. The Judgment Debtor is the executor of the Last Will and Testament of Aruna Basu Mullick and vide an order dated August 11, 2008 passed in G.A. No. 2472 of 2008 in Testamentary Suit No. 2 of 2001 in P.L.A. No. 225 of 1999 (In the Goods of: Smt. Aruna Basu Mullick, deceased). Aruna as the propounder, executor and legatee under the Will was appointed as an administrator pendente lite till the disposal of P.L.A. No. 225 of 1999. What was dismissed by the order dated February 15, 2016 was the “testamentary suit” and not P.L.A. No. 225 of 1999, nor was the appointment of the Judgment Debtor as the administrator pendente lite expressly revoked. Mr. Das has referred to the provisions of Chapter XXXV Rule 1 of the Original Side Rules of the Hon’ble Court which states:- “Non-contentious business. - Non-contentious business shall include the business of obtaining probate and letters of administration (with or without the will annexed, and whether general, special or limited) where there is No contention as to the right thereto, including the passing of probates and letters of administration through the Court in contentious case where the contest is terminated, and all ex parte business to be taken in the Court in matters of testacy, and intestacy, Not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or letters of administration.” Mr. Das submits that the aforesaid provision makes it clear that there is no automatic dismissal of the testamentary suit being PLA No.225 of 1999. Mr. Das submits that the aforesaid provision makes it clear that there is no automatic dismissal of the testamentary suit being PLA No.225 of 1999. Mr. Das has referred to Section 2(11) of the Code of Civil Procedure and submits that the definition of legal representative in the said Section is wide and includes an executor under an unprobated will as a legal representative in a suit and has all rights in relation to the suit that the original deceased plaintiff/defendant could have. Mr. Das in this regard has relied upon the decision of the Hon’ble Supreme Court in Jaladi Suguna (deceased) through LRs. vs. Satya Sai Central Trust and Ors., reported in AIR 2008 SC 2866 . Moreover, as on the date of substitution of the deceased original Defendant No. 1, by the Judgment Debtor herein, after being satisfied with the facts and circumstances as subsisting on such date, the Hon’ble Court allowed the substitution. Once such substitution was allowed, the Judgment Debtor, under Order 22, Rule 4(2), CPC, had all rights to defend the said Suit including the right to enter into any compromise. Order 22, Rule 4(2), CPC states that: “Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.” The dismissal of the testamentary suit was a subsequent event which was not known to the Plaintiffs/Decree Holders at the time. In the event any other alleged legal heir of the deceased Aruna Basu Mullick if aggrieved by substitution of the Judgment Debtor No.1 or wished to challenge the right of the Judgment Debtor No.1 to act as the legal representative of the deceased Aruna Basu Mullick in the instant Suit, it was open to them either to make an application before the Hon’ble Court under Order 1, Rule 10, CPC for addition as a party in the Suit or to make an application under Order 22, Rule 5, CPC, for adjudication as to who is the proper legal representative of the deceased Aruna Basu Mullick. It is significant to note that none of the legal representative of Aruna Basu Mullick had challenged the authority of the defendant No.1 to enter into a compromise with the plaintiffs notwithstanding the dismissal of the testamentary suit. Mr. It is significant to note that none of the legal representative of Aruna Basu Mullick had challenged the authority of the defendant No.1 to enter into a compromise with the plaintiffs notwithstanding the dismissal of the testamentary suit. Mr. Das submits that the applicants have admitted to have been paying rent to the judgment-debtor, since the death of her predecessor-in-interest, Aruna Basu Mullick in 1998, and the applicants have been so paying even at the time after the compromise decree. It only shows that Jayashree Ghosh, the judgment-debtor has always been in constructive possession of the suit premises without any opposition from any other person claiming through Aruna Basu Mullick and, so far as the instant suit is concerned, she continued to be the legal representative of Late Aruna Basu Mullick, notwithstanding the dismissal of the testamentary suit. Moreover, since the applicants have acknowledged the judgment-debtor as their landlady and have been paying rent to her since 1998, they are now estopped under Section 116 of the Indian Evidence Act, 1872 from challenging the authority of the judgment-debtor. Moreover, since the applicants have acknowledged the judgment-debtor as their landlady and have been paying rent to her since 1998, they are now estopped under Section 116 of the Indian Evidence Act, 1872 from challenging the authority of the judgment-debtor. In responding to the submission as to the lack of capacity of the plaintiffs to enter into a compromise decree on the ground that the present plaintiffs were not partners at the relevant time, it is submitted that the institution of the Suit and all substitutions of the Plaintiffs thereafter are in accordance with Section 63(1) read with Section 59 of the Indian Partnership Act, 1932, which state as follows: “Section 63(1): “When a change occurs in the constitution of a registered firm any incoming, continuing or outgoing partner, and when a registered firm is dissolved any person who was a partner immediately before the dissolution, or the agent of any such partner or person specially authorised in this behalf, may give notice to the Registrar of such change or dissolution, specifying the date thereof; and the Registrar shall make a record of the notice in the entry relating to the firm in the Register of Firms, and shall file the notice along with the statement relating to the firm filed under section 59.” Section 59: “When the Registrar is satisfied that the provisions of section 58 have been duly complied with, he shall record an entry of the statement in a register called the Register of Firms, and shall file the statement.” It is submitted that upon reconstitution of a partnership firm, such reconstitution is to be intimated to the Registrar along with the date of such reconstitution and other particulars. After being satisfied with such particulars, the Registrar is required to record such entry. Thus, just because such entry is recorded on a subsequent date, it does not ipso facto mean that there is any discontinuity in the partnership firm. In the instant case, Entry 6 at Page 231, Volume II of the Supplementary Affidavit of the Decree Holders shows the last entry in Form VIII of the Registrar of Firms, Societies and Non-Trading Corporations, whereby the Decree Holders became the current partners of M/s. Bando & Co. In the instant case, Entry 6 at Page 231, Volume II of the Supplementary Affidavit of the Decree Holders shows the last entry in Form VIII of the Registrar of Firms, Societies and Non-Trading Corporations, whereby the Decree Holders became the current partners of M/s. Bando & Co. The said entry shows that Smt. Rita Banerjee and Smt. Mitra Banerjee retired from the partnership firm of April 2, 2014 and on the very same day the Decree Holders joined the partnership firm. Therefore, there is no question of any discontinuity in the partnership firm. Such reconstitution was intimated to the Registrar on April 28, 2014 and the same was recorded by the Registrar on December 17, 2014. The Decree Holders made the application for substitution, being in place of the erstwhile partners, being G.A. No. 3927 of 2015, only thereafter, and were duly substituted in place of the prior partners vide an order of the Hon’ble Court dated March 4, 2016. There is no infirmity in such process. Under Section 68(2) of the Indian Partnership Act, 1932, the Extracts from the Registrar of Firms is proof of such right, title and interest of the Decree Holders. The said provision reads:- “Section 68 Rules of Evidence. (1) Any statement, intimation or notice recorded or noted in Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated. (2) A certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein.” Mr. Das has submitted under Order 23 Rule 3 of the Code of Civil Procedure that a suit can be adjusted wholly or in part by any lawful agreement or compromise in writing and it may cover the whole or any part of the subject matter of the suit. It is clear from the said provision that compromise may be in respect of the whole or part of the subject matter of the suit in which the case it may not be necessary that all the parties to the suit are also are required to be a party to such compromise. It is clear from the said provision that compromise may be in respect of the whole or part of the subject matter of the suit in which the case it may not be necessary that all the parties to the suit are also are required to be a party to such compromise. The Court being satisfied with part compromise may pass a decree in the suit. The instant suit is primarily for possession of the Suit Premises by the Decree Holders and/or their predecessors-in-interest and it is undisputed that the Judgment Debtor and/or her predecessors-in-interest have been in possession of the Suit Premises at all material points of time, actual or constructive through their unauthorised sub-tenants and/or occupants to the exclusion of all others. Therefore, the Judgment Debtor is the only necessary party to the Compromise Decree in its present form. Mr. Das justified the deletion of the defendant Nos.2, 3 and 4 by referring to Order 1 Rule 10(2) of the Code of Civil Procedure where the Court may at any stage of the proceeding either upon or without the application of either party can add or delete a party. It is submitted that the defendant Nos.2, 3 and 4 never contested the suit in spite of service and never filed any written statement. So far as the defendant No.2 is concerned, Pramil Kumar Mitra was only joined as a defendant in the suit since the original plaintiffs under 1984 suit were unaware of the probate dated 14th October, 1974, granted by the learned Additional District Judge, Alipore in O.S. No.1 of 1968 of the last Will and Testament of the deceased, Prafulla dated 31st March, 1965 in favour of Aruna Basu Mullick. The defendant Nos.3 and 4 have never contested the leasehold rights of the decree holders. Once, the Suit was compromised by the Judgment Debtor, the main part of the subject matter was settled, and in fact, expunging Defendants No. 2, 3 and 4 was in consonance with justice, as then neither the Defendants No. 2, 3 and 4 would be bound by the Decree nor could the Decree be executable against any person claiming through them. In case of any grievance or cause of action against the Decree Holders, Defendants No. 2, 3 and/or 4 are free to institute appropriate legal proceedings against the Decree Holders, and the instant Compromise Decree would not have the effect of res judicata, actual or constructive, in any such proceedings. Significantly the Defendants No. 2, 3 and/or 4 and/or any person claiming through them have not raised any objection to the execution of the instant Compromise Decree. The specific case of all the applicants is that they have been inducted by the Judgment Debtor and/or her predecessors-in-interest, Prafulla Kumar Mitra and/or Aruna Basu Mullick and have been paying rent to them. The Applicants are clearly bound by the Compromise Decree. It is submitted that the right of the applicants in the instant proceedings is confined to their locus and status and it is impermissible to raise any or all objections including an objection which goes beyond the decree or an objection which attacks the decree on merits. It is submitted that the entire scheme of Order 97, when seen as a whole, and the scheme of Rules 97 to 101, when read collectively, clearly demarcate and keep apart the locus and status of the obstructionist as against the Judgment Debtor. To permit such contentions to be raised would merge the interest of the obstructionist with that of the Judgment Debtor. A third party to the decree who offers resistance would fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. The words “all questions arising between the parties to a proceeding on an application under Rule 97” would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which the executing court is obliged to determine under rule 101, must possess two adjuncts. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which the executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructer admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructer must legally arise between him and the decree-holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructer legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. In this regard, Mr. Das has relied upon the following judgments: (i) Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Anr., reported in AIR 1998 SC 1754 – Paras. 10 – 12; (ii) Biswanath Poddar vs. ArchanaPoddar and Anr., reported in AIR 2001 SC 2849 . It is submitted that the passage from Mulla’s Commentary on the Transfer of Property Act, 1882 (12th Edn, Page 852) only requires impleadment of all parties who are in possession of the suit premises as parties to the suit. In the instant case, the only party who was in actual or constructive possession of the Suit Premises was always the Judgment Debtor and/or her predecessors-in-interest, through their sub-lessees/subtenants. The Applicants admittedly being sub-lessees/sub-tenants under the Judgment Debtor, the Applicants’ interest have ceased with the acceptance of forfeiture/determination of the monthly tenancy by the Judgment Debtor in the Compromise Decree and the Applicants have ceased to have any tangible right to the property. It is a settled position of law that such sub-tenants/sub-lessees are bound by the Decree even if they were not parties to the Suit. It is a settled position of law that such sub-tenants/sub-lessees are bound by the Decree even if they were not parties to the Suit. Such a sub-tenant/sub-lessee is bound by the decree of ejectment albeit his being not made a party to the Suit, under Order 21, Rule 35, CPC, which is reproduced herein below: “35. Decree for immovable property.- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. .. (emphasis supplied) Mr. Das submits that a sub-tenant is required to be made a party in a suit for eviction provided such sub-tenant enjoys protection under the West Bengal Premises Tenancy Act, 1956 and/or the West Bengal Premises Tenancy Act, 1997. Mr. Das has referred to Section 13(2), 14(1) and 16(1) of the 1956 Act and Section 26 of the 1997 Act and submits that none of applicants have been able to establish that they have complied with the provision of the aforesaid acts or are entitled to protection thereof. The status of occupiers under Prafulla was never recognised by sub-tenant of Prafulla as is evident from the order of 11th September, 1963 passed in appeal no. 109 of 1960. The status of occupiers under Prafulla was never recognised by sub-tenant of Prafulla as is evident from the order of 11th September, 1963 passed in appeal no. 109 of 1960. Moreover, the Order dated June 18, 1985, Minutes of Meetings dated July 5, 1985, July 8, 1985 and July 12, 1985, Special Officer’s Report dated July 15, 1985, Order dated December 5, 1985; Minutes of the Meeting dated December 12, 1985; Special Officer’s Report dated December 19, 1985 and the Special Officer’s Report dated December 20, 1985, all forming part of the proceedings in the instant Suit, C.S. No. 524 of 1984, would go to show that all the then occupants of the entirety of the said Premises at that point of time in 1985 were the unauthorised and/or illegal sub-tenants of Aruna Basu Mullick and/or her predecessor-in-interest, being the predecessors-in-interest of the Judgment Debtor and that the said unauthorised and/or illegal sub-tenants occupying the said Premises were aware of the litigation pending before the Hon’ble High Court at Calcutta in respect of the Suit Premises, being C.S. No. 524 of 1984 between the Original Plaintiffs and the landlady of the said unauthorised and/or illegal sub-tenants, Aruna Basu Mullick, and also the aforesaid orders passed by the Hon’ble Calcutta High Court in the said Suit, including the specific order of injunction restraining the Defendant No. 1, Aruna Basu Mullick “from inducting any other tenant or allowing anyone else to occupy” the said Premises “until further orders of this Court.” However, none of the aforesaid unauthorised and/or illegal subtenants or their successors-in-interest or unauthorised transferees, inducted or deemed to have been inducted by the Judgment Debtor and/or her predecessor-in-interest and/or her successor-in-interest, took any steps to intervene in and/or have themselves added as parties in C.S. No. 524 of 1984. Some of the Applicants have been inducted even after 1984, during the pendency of C.S. No. 1984 and the applications of such Applicants being transferees pendente lite is required to reject outright under Section 52 of the Transfer of Property Act, 1882 and Order 21, Rule 102, CPC, which states as follows:- “Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation.-In this rule, "transfer" includes a transfer by operation of law.” In view thereof the applicants have no legal right to occupy the said premises. Mr. Das has, accordingly, prayed for dismissal of the application. Mr. Ghosh in reply has distinguished the decisions relied upon by Mr. Das. Mr. Ghosh has submitted that Bishen Sarup (supra), Md. Fazuhzzaman (supra), Prankrishna Dey (supra) and Janab E.M. Gulam (supra), the facts were not identical to facts in issue. In any event, the decisions are contrary to the Division Bench judgment of our Court in Sambhunath Mitra (supra). In Bishen Sarup (supra) both the lessor and the person in actual were impleaded as parties in the suit and, accordingly, suit was not held to be defective. In Md. Fazuhzzaman (supra), the person in actual possession of the suit property was impleaded as a defendant and, in such circumstances, it was held that there seems to be no reason why a subsequent lessee could not be allowed to enforce his right against another person who is holding under his lessor which is not the case here. Prankrishna Dey (supra) was decided on 8th September, 1868 before the Transfer of Property Act, 1882 came into force and, accordingly, the said decision does not apply to the present case. In Achayya (supra), the plaintiff therein sought to recover possession of land given to him in lease by the defendant No.1, the owner of the land and the defendant No.2 therein claimed occupancy right and an objection was raised in the said case that the lessee could not sue for eviction. In Achayya (supra), the plaintiff therein sought to recover possession of land given to him in lease by the defendant No.1, the owner of the land and the defendant No.2 therein claimed occupancy right and an objection was raised in the said case that the lessee could not sue for eviction. On such facts, it was held that the lessor, the owner of the said land, was entitled to evict on proof of title so could the lessee claim under him to obtain possession on proof of such title and on the basis of his own lease. In the instant case, the applicants were in actual possession of the tenanted portion of the said property and they are sought to be evicted without impleading them in the suit. Mr. Ghosh submits that in Janab E.M. Gulam (supra), the petitioner therein was one of the two defendants in a suit to eject him from possession of certain land. The second defendant was Tanjore Municipal Council, the petitioner therein was a lessee in Tanjore, and the petitioner was a lessee under the defendant No.2. The plaintiff acquired a lease of the property which was in occupation of the defendant No.1 for some years. The plaintiff as new lessee filed a suit against the defendant No.1 and also against the defendant No.2. In such circumstances, it was held that if a person obtains a lease from a lessor and finds another person to be in possession at the time of taking possession, it would be wrong to contend that the new lessee cannot bring an action to eject the first defendant as the owner of the land was entitled to eject the second defendant and proof of title so could the lessee. Mr. Ghosh argued that it is significant to note that the defendant No.1 was in actual possession and he was impleaded in the said suit unlike the present situation. Mr. Ghosh submits that similarly Kondavati Naganna (supra) was also not applicable in the instant case as lease is not an assignment of property and his possession cannot be equated with that of a landlord. However, Mr. Ghosh submits that all the aforesaid decisions are in conflict with the Division Bench of our Court in Sambhunath Mitra (supra) and the said decisions are no longer good law and, accordingly, not binding on this Court. Mr. However, Mr. Ghosh submits that all the aforesaid decisions are in conflict with the Division Bench of our Court in Sambhunath Mitra (supra) and the said decisions are no longer good law and, accordingly, not binding on this Court. Mr. Ghosh submits that in Pavan Kumar (supra), it has been held that even after the amendment of CPC, 1908 in 1976 the expression “may” employed in Rule 99 of Order XXI of CPC, 1908 prima facie denotes that the remedy under Rule 99 is not compulsory, but the provision of Order XI Rule 99 CPC, 1908 does not place any bar on bringing an independent suit for possession, without filing an application under the said Rule. In view of the provision of Rule 101 of Order XXI of CPC, 1908 all questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 99 of Order XXI of CPC, 1908 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the application, and “not by a separate suit”. In paragraph 9 of the said decision it has been held, inter alia, as follows:- “........... We agree with the learned single Judge that the bar against filing of the separate suit would apply only if there was an application under Rule 99 but not otherwise. ..............” [Emphasis supplied] It is submitted that in view of the specific provision of Rule 101 of Order XXI of CPC, 1908 there is a bar on filing a separate suit in respect of all questions arising between the parties to a proceeding on an application under Rule 99 of Order XXI of CPC, 1908. The said decision is per incuriam inasmuch as in the said decision the provision Rule 101 of Order XXI of CPC, 1908 was not considered carefully. Mr. Ghosh submits that the decision in Pravin Jethalal Kamdar (supra) has no manner of application as it would appear from the said decision that the sale deed was declared null and void and the same had no existence in the eye of law. It is well-settled that invalidity of such deed can be raised in any proceeding and no separate declaration is necessary, which is not the case here. Mr. It is well-settled that invalidity of such deed can be raised in any proceeding and no separate declaration is necessary, which is not the case here. Mr. Ghosh submits that Jaladi Suguna (supra) has discussed the scope of “legal representative” which includes the person who represents the estate of the deceased and also includes any person who intermeddles with the estate of the deceased. The Testamentary Suit was dismissed on 15th February, 2016. In view of dismissal of the said suit, Jayashree Ghosh claiming to be the executrix of the Will of Aruna could not be considered as the legal representative of Aruna either as administrator of pendente lite or as the executrix named in the Will or as the person intermeddling with the estate of Aruna and, accordingly, she was not competent to enter into such compromise. It is submitted that Commissioner, Jalandhar Division (supra) also does not come to the aid of the plaintiffs for the reasons mentioned above. It is submitted that the ratio of the decision in Biswanath Poddar (supra) also does not apply to the facts of the case since unlike the present plaintiffs, the owner of the suit premises filed a suit for eviction of the tenant on the ground of illegal creation of sub-tenancy in contravention of the provision of the West Bengal Premises Tenancy Act, 1956. The present plaintiffs claimed to be the lessees (concurrent lessee) under the original owner by virtue of a deed of lease dated 6th February, 1978. Since the concurrent lease is not valid in the eye of law in view of the decisions in Sambhunath (supra), the original plaintiffs were not entitled to file the suit as concurrent lessees. Moreover, no notice under Section 13(6) of the West Bengal premises Tenancy Act, 1956 was served upon the defendant Nos.1 and 2 or upon the present applicants. The present suit has not been filed under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956 after serving a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. Accordingly, the provision of Section 13(2), Section 14 and Section 16 of the West Bengal Premises Tenancy Act, 1956 would not apply. Mr. Ghosh submits that the decree is fraudulent and not enforceable against the applicants. Accordingly, the provision of Section 13(2), Section 14 and Section 16 of the West Bengal Premises Tenancy Act, 1956 would not apply. Mr. Ghosh submits that the decree is fraudulent and not enforceable against the applicants. The quality of the claim of the interveners has to be assessed on the basis of the facts stated in the earlier part of the judgment as well as the submissions made by the respective parties. The facts have been summarized above. The undisputed facts that have emerged from the materials disclosed by the parties are that Deboprasad was the original owner of the property. Deboprasad filed a suit on April 5, 1954 for eviction of Prafulla from the suit premises on the ground of default of payment of rent. Initially an ex parte decree was passed. The decree was, however, set aside by the appellate Court in which it has been specifically recorded that Deboprasad is not accepting payment for occupation charges by Prafulla as rent and the claim of sub-tenants made by Prafulla. It appears that the Kolkata Municipal Corporation was attached the rents of the sub-tenants of Prafulla. The decree provides that in default of payment of occupation charges by Prafulla, the defence in the suit would automatically struck off. After the death of Deboprasad, his son Dhruba continued the suit till his death on 22nd February, 1983. In the meantime, Aruna as the executrix of the Will of Prafulla substituted herself along with Subarnabala Mitra and Pramil Kumar Mitra, the widow and son of Prafulla. In the suit, Aruna paid occupation charges in terms of the order of the Division Bench till December, 1977 and, thereafter, no rent was paid. In the meantime, an agreement was entered into between Dhruba and the predecessor-in-interest of the present plaintiffs on 22nd December, 1974 by which a right was conferred upon the original plaintiffs to pursue the said suit on behalf of Dhruba and a Power of Attorney was executed by Dhruba on behalf of the said original plaintiffs to continue such eviction suit. Thereafter, a lease agreement was executed on 6th February, 1978 by which certain rights in relation to the suit property, namely, to continue the suit for eviction, obtaining vacant possession of the property and to make construction upon obtaining vacant possession of the property. Thereafter, a lease agreement was executed on 6th February, 1978 by which certain rights in relation to the suit property, namely, to continue the suit for eviction, obtaining vacant possession of the property and to make construction upon obtaining vacant possession of the property. After the death of Dhruba, the original plaintiff filed an application for substitution and with a prayer to continue the eviction suit, the said application was rejected. Then the partners of Bando & Co., the original plaintiffs filed a suit for eviction of the defendant Nos.1 and 2 and a declaration that the lease agreement executed by Dhruba is valid and subsisting. The defendant Nos.3 and 4 are the executors of the Will of Dhruba. The said defendant Nos.3 and 4 did not continue with the eviction proceeding. The cause of action of the instant suit is summarized in Paragraph 38 of the Plaint which has been noted earlier. The grounds for eviction are two-fold, namely, default in payment of rent from December, 1977 and wrongful subletting of the premises. Aruna initially filed an application for rejection of plaint on the ground that the suit was filed without any notice to quit. The notice to quit given by Dhruba cannot be availed of by the plaintiffs herein. The earlier suit having abated, in view of Order 22 Rule 9 of the Code of Civil Procedure, this suit is barred by limitation. The clauses in the lease in favour of the plaintiffs showed that the lease was subject to the suit which has now abated. There are seven lessees and that not all of them have joined in the suit. The plaintiffs before the learned Single Judge have contended that the cause of action in the suit is not on the basis of any notice to quit or ejectment of the defendants on the basis of their tenants. The suit is for eviction of the defendants who are trespassers. The learned Single judge dismissed the said application for rejection of plaint on the ground that on examination of the plaint, it appears that Smt. Aruna Basu Mullick was treated as a trespasser. Probodh was inducted by Deboprasad. Deboprasad died leaving a Will appointing Prafulla as an executor. Such grant of probate was revoked and the probate proceeding in respect of the Will of Probodh was pending. Probodh was inducted by Deboprasad. Deboprasad died leaving a Will appointing Prafulla as an executor. Such grant of probate was revoked and the probate proceeding in respect of the Will of Probodh was pending. Even the fact that Aruna obtained the probate of Will of Prafulla does not make her automatically executrix to the estate of Probodh. Probate proceeding in respect of Probodh was still pending. Accordingly, Aruna could not be treated as having any right, title and interest in respect of the Will of Probodh merely because of her appointment as executrix in respect of the Will of Prafulla. On careful consideration of Section 109 of the Transfer of Property Act, it was held that the said provision makes it clear that a lessee under such circumstances has some right in respect of the property even if it does not amount to reversion of the whole of interest of the lessor. It was further held that it is a case of continuous wrong and the question of limitation does not arise. The application of Aruna was dismissed. On behalf of the obstructionists similar points have now been reagitated. It is clear from record that the sub-tenancies created by Prafulla were not in accordance with the provisions of the Rent Act of 1950 inasmuch as the probate of the last Will and testament has now been revoked, Prafulla or the executrix of his alleged Will or successor-in-interest of Prafulla cannot claim any protection under the Rent Control Statute. Accordingly, the induction of Aruna was also that of a trespasser inasmuch as from the chart handed over to this Court showing the list of occupiers, it appears that the following persons were inducted after the death of Dhruba by Aruna during 1984 and 2014:- Sl. No. Name of Occupiers Inducted in Available Documents to show Possession G.A. No. 33. Debasis Mukherjee 1984 (a) Rent receipt for the months of February, April & July 1984 (b) Possession recorded in Receiver’s report dated 15.07.1985 2339/2017 34. Calcutta Copy Service, Proprietor: Parna Mukherjee 1984 (a) Trade license for the year 1984- 85 (b) Possession recorded in Receiver’s report dated 15.07.1985 (c) Rent receipt for the month of July 1988 2641/2017 35. Latest Publicity, Proprietor: Shibaji Bhoumik 1984 (a) Rent receipt for the months of May 1988 & February 1989 (b) Professional tax receipt for the year 1989-90 2593/2017 36. Latest Publicity, Proprietor: Shibaji Bhoumik 1984 (a) Rent receipt for the months of May 1988 & February 1989 (b) Professional tax receipt for the year 1989-90 2593/2017 36. R.C. Sikchi 1984 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) Professional tax receipt for the year 1987-88 (c) Certificate of registration under W.B. Shops & Establishments Act dated 18.09.1989 2540/2017 37. Kamala Sikchi 1993 (a) Trade licence for the year 1993- 94 (b) Application for registration under W.B. Shops & Establishment Rules evidencing commencement of business on 31.12.1993 (c)VAT registration certificate for the year 2008-09 2575/2017 38. Popular Publicity, Proprietor: Deba Prasad Das 1995 (a) Rent receipt for the month of July 1995 (b) Trade license for the years 1995-96 & 2017- 18 2583/2017 39. Subrata Mondal & Smt. Sovona Mondal 1996 (a) Income Tax acknowledgement dated 19.03.1996 (b) Trade licence for the year 1997- 98 (c) Rent receipt for February 2005 to January 2015 2586/2017 40. S.K. Jhunjhunwala 1997 (a) Registration card from Calcutta Telephones dated 03.03.1997 (b) Electricity bill for the month of May 2007 (c) Trade license for the year 2011- 12, 2012-13 (d) Telephone bill of 2011 (e) Income Tax acknowledgement for the year 2012- 13 2570/2017 41. Bhaba Sundar Panda 1999 (a) Rent receipt for the month of August 1999 (b) Trade licence for the years 1999-2000 & 2016-17 2588/2017 42. New Zeeshan, Proprietor: Shaduddin 2000 (a) Trade licence for the years 2005-06, 2007-08 (b) Fire licence for the year 2010-11 (c) Rent receipt for the month of October 2015 2581/2017 43. Shaan Haider & Farhan Haider 2003 (a) Trade licence for the year 2003- 04 (b) Rent receipt for the month of December 2004 & July 2014 2574/2017 44. Md. Fazar Ali Biswas 2006 (a) Rent receipt for the month of May 2006 (b) Trade licence for the year 2006- 07 2550/2017 45. Swapna Chakraborty 2009 (a) Rent receipt for the month of June 2009 (b) Agreement of tenancy dated 10.07.2009 between Jayasree Ghose & Swapna Chakraborty (c) Electricity bill for the month of October 2010 2578/2017 46. Champa Biswas 2009 (a) Agreement of tenancy dated 10.07.2009 between Jayasree Ghose & Champa Biswas (b) Rent receipt for the months of January to April 2017 2553/2017 47. Reyaz Ahmed Khan 2009 (a) Trade licence for the years 2011-12 & 2013- 14 (b) Electricity bill for the month of February 2015 2592/2017 48. Champa Biswas 2009 (a) Agreement of tenancy dated 10.07.2009 between Jayasree Ghose & Champa Biswas (b) Rent receipt for the months of January to April 2017 2553/2017 47. Reyaz Ahmed Khan 2009 (a) Trade licence for the years 2011-12 & 2013- 14 (b) Electricity bill for the month of February 2015 2592/2017 48. Ashok Kumar & Mukul Kumar 2010 (a) Agreement of tenancy dated 31.01.2010 between Jayasree Ghose and Ahok Kumar & Mukul Kumar (b) Rent receipt dated 01.02.2010 for deposit money (c) Rent receipt for the months of February 2010 to January 2011 (d) Electricity Bill for the month of April 2010 2591/2017 49. Glomex India, Partners: Sukanta Kundu & Aloke Kumar Jana 2011 (a) Rent receipt for the month of January 2011 (b) Trade licence for the year 2012- 13 2551/2017 50. Shabnam Haider & Daughters 2013 (a)Possession letter dated 18.09.2013 (b) Rent receipt for the months of September to December 2013 (c) Trade licence for the year 2013- 14 (d) Electricity bill for the month of July 2014 2565/2017 51. Snehasis Choudhury 2014 (a) Rent receipt for the month of September 2015 (b) Professional tax receipt for the year 2017-18 2576/2017 Prior thereto, there is a list of 32 occupants alleged to have been inducted in the suit premises either by Prafulla or by Aruna during the pendency of the suit, namely:- Sl. No. Name of Occupiers Inducted in Available Documents to show Possession G.A. No. 1. Progressive Traders & The Pratyaya, Proprietor: Kamalendu Dhar 1950 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) Rent receipts for the months of June 2000 & August 2007 (c) Trade license for the year 2002- 03 2582/2017 2. Mohan Lal Singhi, Proprietor: J.K. Trading Co. 1951 (a) Letter from CESC showing installation of electric meter on 01.01.1951 (b) Certificate of registration under the Bengal Finance (Sales Tax) Act dated 11.04.1967 (c) Letter dated 19.04.1967 from the Commercial Tax Officer, Taltola Charge (d) Trade license for the year 1978- 79 (e) Professional tax receipt for the year 1978-79 (f) Rent receipt for the month of May 1982 (g) Possession recorded in Receiver’s reported dated 15.07.1985 2597/2017 3. Geeta Balakrishnan, daughter of Late T.K. Warrior 1952 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) Letter dated 19.09.1988 from N.C. Bose & Co., Advocate for Aruna Basu Mullick 2567/2017 4. J. Biswas & Co. Geeta Balakrishnan, daughter of Late T.K. Warrior 1952 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) Letter dated 19.09.1988 from N.C. Bose & Co., Advocate for Aruna Basu Mullick 2567/2017 4. J. Biswas & Co. 1952 (a) Licence for arms and ammunition dealers issued in the years 1965 (refers to a licence issued in the year 1949) and 2017 (b)Explosive licence for sale of gunpowder issued in the year 1953 (c) Registered partnership deed of 1993 which refers back to a registered partnership deed of 1962 (d) Licence for arms and ammunition dealers issued in the years 1965 and 2017 (e) Deposit slip before the Rent Controller of the year 1971 2334/2017 5. Amber Roy, son of Late Bholanath Roy, then proprietor of Ashoka Films 1953 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) Trade license for the years 1997-98 & 2009- 10 (c) Rent receipt for the month of November 2011 2598/2017 6. Indra Nath Roy, son of Late Bholanath Roy, then proprietor of Ashoka Filma 1953 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) Professional tax receipt for the year 1988-89 (c) Electricity bill for the month of April 2009 (d) Rent receipt for the month of May 2017 2600/2017 7. Mrs.Radha Eswar & Mr. V. Raghavan, heirs of Late S.V. Eswar 1959 (a) Acknowledgements from Indian Posts & Telegraphs Department dated 22.04.1963, 25.04.1963, 06.08.1964 & 09.11.1964 (b) Electricity bill for the month of January 1976 (c) Rent receipts for the moths of February & March 1976, August & September 1990 (d) Possession recorded in Receiver’s report dated 15.07.1985 (e) Trade license for the year 1988- 89 2560/2017 8. Bandana Basu, wife of Late Subrata Basu 1960 (a) Rent receipt for the months of March 1965, MayJuly 2009, January December 2013 (b) Possession recorded in Receiver’s report dated 15.07.1985 2590/2017 9. Medium Service, Proprietor: Raghu Gupta 1960 (a) Trade license for the year 1960- 61 (b) Rent receipt for the month of November 1980 (c) Possession recorded in Receiver’s report dated 15.07.1985 2602/2017 10. Cine Club of Calcutta 1960 (a) Certificate of Registrar of Firms Societies & NonTrading Corporations, W.B. for the year 1962-63 (b) Letters from the Registrar of Firms Societies & Non Trading Corporations, W.B. dated 09.08.1965, 13.05.1966 & 23.05.1966 (c) Possession recorded in Receiver’s report dated 15.07.1985 2589/2017 11. Cine Club of Calcutta 1960 (a) Certificate of Registrar of Firms Societies & NonTrading Corporations, W.B. for the year 1962-63 (b) Letters from the Registrar of Firms Societies & Non Trading Corporations, W.B. dated 09.08.1965, 13.05.1966 & 23.05.1966 (c) Possession recorded in Receiver’s report dated 15.07.1985 2589/2017 11. B.L. Shah & P.S. Rayet 1960 (a)Rent receipts for the months of July 1978 & January 1989 (b) Possession recorded in Receiver’s report dated 15.07.1985 2566/2017 2594/2017 12. Chowringhee Business Centre, Proprietor: Smt. Rita Devi Singhania 1961 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) CESC bill dated 13.11.2004 for installation of new meter (c) Trade licence for the years 2006-07, 2009-10 (d) Rent receipt for the month of February 2007 2630/2017 13. M. K. Karunakaran, represented by his son Ranjit Karunakar 1963 (a)Rent receipts for the months of April & June 1965 (b) Certificate of registration under the W.B. Shops & Establishments Act in the month of August 1967(c) Professional tax receipt for the year 1972-73 (d) Bank statement for the year 1981-82 (e) Possession recorded in Receiver’s report dated 15.07.1985 2601/2017 14. Smt. Uma Arora & Sanjay Arora, heirs of Late Narayan Das Arora 1965 (a) Possession recorded in Receiver’s report dated 15.07.1985 (b) Letter from Jayashree Ghose dated 09.06.2003 (c) Rent receipt for the month of April 2016 2549/2017 15. Harlalka Brothers, Partner: Ashok Harlalka 1965 (a) Rent receipt for the month of May 1965 (b) Letter dated 01.03.1955 attested as a true copy on 19.03.1965 by P.K. Mitra (c) Letter dated 19.03.1965 from P.K. Mitra (d) Possession recorded in Receiver’s report dated 15.07.1985 (e) Agreement of tenancy dated 29.05.2008 between Jayasree Ghose and Harlalka Brothers (f) Letter dated 01.06.2008 from Jayasree Ghose 2545/2017 16. Sanjay Kumar Shaw 1966 (a)Income tax assessment for the year 1978-79 (b) Electricity bill for the month of May 1993 (c) Trade licence for the year 2003- 04 (d) Telephone installation receipt in March 2007 2599/2017 17. Bina Koley 1966 Not available 2569/2017 18. Sarkar Film Distributors, Proprietor: Jayanta Sarkar 1967 (a)Rent receipt for the month of May 1967 (b) Possession recorded in Receiver’s report dated 15.07.1985 2543/2017 19. Bina Koley 1966 Not available 2569/2017 18. Sarkar Film Distributors, Proprietor: Jayanta Sarkar 1967 (a)Rent receipt for the month of May 1967 (b) Possession recorded in Receiver’s report dated 15.07.1985 2543/2017 19. Kela Brothers (Calcutta), Partners: R.C. Sikchi, Kamala Sikchi & Anuradha Maheshwari 1968 (a)Letter dated 28.04.1969 from the Registrar of Firms, W.B. (b) Certificate of registration under the W.B. Shops & Establishments Act dated 27.09.1969 (c) Trade license for the year 1970- 71 (d) Possession recorded in Receiver’s report dated 15.07.1985 (e) Rent receipt for the month of April 2013 2339/2017 20. Deo Kishan Tapadia, brother of Late G.K. Tapadia 1968 (a)Rent receipt for the month of October 1968 (b)Possession recorded in Receiver’s report dated 15.07.1985 (c)Trade license for the years 1986-87 & 2016-17 2568/2017 21. Designers’ Corner, Proprietor: Anjan Chatterjee 1969 (a)Trade license for the years 1969-70, 1970-71, 1973-74, 1974-75, 1976-77 (b)Rent receipts for the months of February 1974 & January 1975 (c) Possession recorded in Receiver’s report dated 15.07.1985 2587/2017 22. Susovan Ghosh, son of Late Ashok Ghosh, Proprietor: Cine & Sound Co. 1971 (a)Trade licence for the year 1971- 72, 1974-75 & 2016-17 (b) Electricity bill for the month of June 2007 (c) Rent receipt for the month of September 2010 2577/2017 23. Supriyo Ghosh, grandson of Late Ashok Ghosh, Proprietor: Cine & Sound Co. 1971 (a)Trade licence for the year 1971- 72 & 1974-75 (b)Rent receipt for the month of September 2010 2547/2017 24. Smt. Krishna Pal & Smt. Sharmistha Pal, heirs of Late Hiralal Pal 1973 (a)Trade licence for the years 1973-74, 2005-06 & 2016-17 (b)Permission of screens from the Corporation of Calcutta for the year 1973-74 (c) Rent receipt for the months of October 1994 & October 2004 25. Nirmal Kumar Jain 1974 (a)Income Tax assessment order for the year 1974- 75 (b) Possession recorded in Receiver’s report dated 15.07.1985 (c) Rent receipt for the months of May 1992 & March 2012 (d) Trade license for the year 2011- 12 2548/2017 26. Naushad Akhtar & M. Imroj, son of Salar Ali & Shumsuddin 1975 (a)Rent receipt for the month of April 1975 (b) Trade license for the year 2003- 04 2579/2017 27. Naushad Akhtar & M. Imroj, son of Salar Ali & Shumsuddin 1975 (a)Rent receipt for the month of April 1975 (b) Trade license for the year 2003- 04 2579/2017 27. Tapan Chakraborty, represented by G.N. Chattopadhyay & A.K. Mullick 1975 (a)Letter from the Licence Department, Corporation of Calcutta dated 19.12.1978 (b)Possession recorded in Receiver’s report dated 15.07.1985 (c) Rent receipt for the months of June 2003 to March 2004 (d) Trade license for the year 2017- 18 2546/2017 28. Sethia Prasad Agarwala & Dipak Kumar Agarwala 1978 (a)Rent receipt for the months of February 1978 & May 2003 (b)Possession recorded in Receiver’s report dated 15.07.1985 2571/2017 29. Smt. Bina Chowdhury, Partner: Raman Industri 1979 (a)Letter dated 29.02.1980 from the Commercial Tax Officer, Taltala Charge evidencing application for registration made on 20.12.1979 (b)Trade license for the year 1979- 80 (c)Rent receipt for the month of September 1981 (d)Possession recorded Receiver’s report dated 15.07.1985 2339/2017 30. Parshu Ram Choudhury 1980 (a)Rent receipt for the month of June 1989 (b)Trade license for the years 1980-81, 1982-83 & 2014-15 (c)Electricity bill for the month of February 1982 (d)Possession recorded in Receiver’s report dated 15.07.1985 2572/2017 31. Narendra Kumar Arya, son of Smt. Champa Devi Arya 1981 (a) Letter from the Registrar of Firms Societies & Non Trading Corporations, W.B. dated 05.02.1982 (b) Possession recorded in Receiver’s report dated 15.07.1985 (c) Income tax clearance certificate dated 22.09.1995 for the years 1988-89 onwards (d) Trade licence for the year 2005- 06 (e) Rent receipt for the month of July 2012 2585/2017 32. Alo Choudhari & Co. 1983 (a)Trade licence for the year 1983- 84 (b)Rent receipt for the month of June 2017 2339/2017 During his lifetime Probodh never created any sub-tenancy. As soon as the probate of Prafulla was revoked, Prafulla lost his right to represent the estate of Probodh. He, however, continued to act as Receiver of the hotel business. In any event, by reason of default in making payment of rent since December, 1977, in terms of the order of the appellate Court dated 11th September, 1963, the defence against ejectment in the suit is struck off and Dhruba was entitled to an immediate possession during his lifetime on the basis of the notice to quit dated 12th August, 1953. The tenancy of Prafulla in any event was terminated by the aforesaid notice. The tenancy of Prafulla in any event was terminated by the aforesaid notice. In view thereof it cannot be said that the said lease in favour of the plaintiffs was created when the earlier lease was in existence. In fact, Since December, 1977, the status of Aruna is clearly that of a trespasser since her inception having regard to the fact that Prafulla lost his right to represent the estate of Probodh during his lifetime. Prafulla has lost his right to be a legal representative of Probodh since 29th May, 1959 when the grant in favour of Prafulla was revoked. The question arises did Aruna had any other status in the suit property? The sub-tenancies were not in accordance with the Rent Act of 1950 and/or the Rent Act of 1956 or the Rent Act of 1997. None of the applicants have disclosed any document to show that sub-tenancies were created either with the consent of Deboprasad or Dhruba. Creation of any sub-tenancy during the pendency of the suit and after the notice to quit is hit by the doctrine of lis pendens. Any subtenancy prior to notice to quit has to be in accordance with the Act of 1950. The sub-tenants were clearly aware of the pendency of the earlier suits as well as the present suit. In fact, on 18th June, 1985, the Special Officer was appointed to make enquiry from Aruna and the tenants and/or occupiers of the property and submit a report containing the details and particulars of such tenants and/or occupiers and the amount of rent and/or occupation charges paid by them and other details regarding the tenancy. The Special Officer filed a report wherefrom it appears that S.Bose, B. Mitra, Industrial Equipment, Sarkar Films, Arch Industrial Corporation, N.D. Arora, N. Palit and J. Biswas were in occupation of Room Nos.1,8, 14, 9, 18, 22 and litigations were pending in respect of N. Palit and J. Biswas. The said report also records the name of Mr. Arun Nath, M/s. Gree Studio, Madras Film and Mr. A. Jain, G.D.M. Co-operative Society Ltd., M/s. Chandan Enterprises and Mr. Narayan Das Arora as occupants under different persons who claimed tenancy in respect of the said property. Apart from the aforesaid persons, no other persons were found to be in actual occupation of the suit premises. Arun Nath, M/s. Gree Studio, Madras Film and Mr. A. Jain, G.D.M. Co-operative Society Ltd., M/s. Chandan Enterprises and Mr. Narayan Das Arora as occupants under different persons who claimed tenancy in respect of the said property. Apart from the aforesaid persons, no other persons were found to be in actual occupation of the suit premises. In course of hearing, the applicants have furnished a list of 51 occupants out of which Serial Nos.1 to 32 were persons and/or entities who claimed to be in possession between 1950 and 1983. It appears that even during the pendency of the eviction suit being Suit No.1059 of 1984, sub-tenancy was created without the consent of the owner of the property. In fact, the appellate decree records that the Corporation of Kolkata collected amounts from the defendant’s sub-tenants on account of rates and taxes. The original plaintiffs nor the substituted plaintiffs have accepted the sub-tenancy. The onus is on the applicants to establish that the sub-tenancies were created in accordance with prevailing law and the statute. All the three Rent Control Acts from 1950 till 1997, a specific procedure from creating sub-tenancy is mentioned. It has to be in writing and with the consent of the owner of the landlord. In absence of any of such evidence, the obstructionists became trespassers in respect of the said property. It is also significant to note that although the obstructionists were at least aware of the present suit but did not make any attempt to exercise their right under Section 16(2) or 16(3) of the 1956 Act. They knew that die is cast and bolt is impending. So “the tree must fall”. Still then they did not feel it necessary to safeguard their interests. The other issue on which much argument has been made is with regard to the plaintiffs’ right to seek eviction of Aruna and others on the basis of the notice to quit issued by Deboprasad against Prafulla. The lease deed has to be read as a whole to understand the rights conferred upon the lessee, namely, the present plaintiffs. The plaintiffs have performed their obligation by depositing the security amount and pursuing the suit filed by Deboprasad till Dhruba died. The present plaintiffs under the lease deed have an independent right to obtain vacant possession of the suit property as such right was conferred upon the plaintiffs by Dhruba. The plaintiffs have performed their obligation by depositing the security amount and pursuing the suit filed by Deboprasad till Dhruba died. The present plaintiffs under the lease deed have an independent right to obtain vacant possession of the suit property as such right was conferred upon the plaintiffs by Dhruba. Inasmuch as Aruna forfeited her right to resist the eviction suit having not deposited rent after December, 1977, her eviction was only a fait accompli. Clause 9 of the order of the Appellate Court has snatched away such right for ever. However, till the death of Dhruba, it appears that the suit was pending. Section 109 of the Transfer of Property Act gives transferee only those rights which the transferor had. Section 109 deals with cases where a lessor while there is a subsisting lease in his favour transfers his interest in the land to a third party and the third party or the transferee takes it subject to certain liabilities if the lessor’s tenants or lessee so elect. At the time of execution of the lease deed on 6th February, 1978, there was no subsisting lease in favour of Aruna. The question here in whether Aruna had any interest in the property at all, save and except a possessory right till the suit for eviction is decided. The possession of Aruna in the suit premises is of a trespasser. In any event, defence in the eviction suit of 1954 was struck off by reason of default in depositing the monthly rent in terms of the order of the Appellate Court dated 11th September, 1963 since December, 1977. For eviction of a trespasser there is no law which requires that prior to the eviction of such trespasser a notice to quit is to be served upon the trespasser. Filing of a suit is itself a notice to a trespasser. Since the lessee by virtue of the lease is entitled to exercise all the rights of the lessor and such right having not denied by the defendant nos. 3 and 4, the lessor was entitled to file a suit on the basis of the original notice as well as on the ground of sub-letting. In any event, any objection with regard to service of a prior notice before filing the suit was not specifically taken in the written statement nor carried to trial by the defendant No.1. 3 and 4, the lessor was entitled to file a suit on the basis of the original notice as well as on the ground of sub-letting. In any event, any objection with regard to service of a prior notice before filing the suit was not specifically taken in the written statement nor carried to trial by the defendant No.1. Section 109 enables the transferee to exercise all rights of the lessor, including the right to terminate a lease by giving a notice to quit. Since the status of the defendants became trespasser when the present suit was filed there is no requirement to serve any such notice on the defendant Nos.1 and 2. In any event, the defendant No.1 although in the written statement has raised the issue of maintainability but ultimately did not press such defence. The argument on concurrent lease to invalidate the second suit perhaps proceed on the basis of interpretation of the phrase “any of his interest therein” appearing in Section 109 of the Transfer of Property Act which means those interest which the lessor was capable of transferring after execution of the fresh lease. Once a lease has been executed and the lessee has been given right to enjoy the property, landlord cannot have such right any more; the only right that he is capable of transferring at that point of time is the lessor’s right. As on the date of execution of the lease deed there was no subsisting lease. Both Prafulla and Aruna lost their opportunity to contest the suit. Their occupation was precarious. Once a monthly tenancy is terminated by notice to quit there is no requirement to issue another notice as the lessee is bestowed and vested with the same rights that the lessor had in relation to Aruna. The surrender of the defendant no.1 cannot be objected by the applicants as they have no title to support their claim over and in respect of the property. The defendant nos. The surrender of the defendant no.1 cannot be objected by the applicants as they have no title to support their claim over and in respect of the property. The defendant nos. 3 and 4 having not opposed the claim of the plaintiffs that the lease dated 6th February, 1978 is subsisting between them the right to recover possession on the basis of the original notice to quit is available to the plaintiffs as it follows from the tenor of the lease agreement which not only gives right to the lessor to pursue the suit of 1954 for eviction but also right to obtain vacant possession on its own right as lessees coupled with the lessors obligation under Section 108 (b) to put the lessees in possession. Mere failure of the defendant nos. 3 and 4 not to revive the suit after the death of Dhruba does not take away the valuable right of the plaintiffs to sue for eviction of the defendant nos.1 and 2 and requires the defendant nos. 3 and 4 to perform their obligation as lessees of the suit property which enjoins them to hand over vacant possession of the suit premises and put the plaintiffs in possession of the property. Although the status of the applicants are not of sub-tenants, even if it is regarded to be so a sub-tenancy created in violation of the Rent Control Act, 1950 is not enforceable. A sub-tenant is bound by the decree for eviction of the tenant if the decree is based upon a ground which determines the sub-tenancy and he may then be removed in execution of the decree. However if a sub-tenant claims a statutory right to occupy a property independently of the tenant under the Rent Control laws, he is not a representative of the judgment-debtor tenant and is not bound by the decree of ejectment and he may not therefore be removed in execution of the decree against the tenant. He is therefore entitled to resist execution of the warrant and if he is dispossessed, he may apply under Order 21, Rule 100 for restoration of possession. The mere fact that the Judgement-debtor has filed the written statement but did not ultimately contest the suit does not mean that the decree is obtained by collusion. A similar situation occurred in Rupchand Gupta Vs. Raghu Banshi reported at AIR 1964 SC 1889 . The mere fact that the Judgement-debtor has filed the written statement but did not ultimately contest the suit does not mean that the decree is obtained by collusion. A similar situation occurred in Rupchand Gupta Vs. Raghu Banshi reported at AIR 1964 SC 1889 . In that case, the landlord brought a suit against his lessee for ejectment after serving a valid notice to quit but without impleading the sub-lessee as defendant. The lessee did not contest the suit in pursuance of his agreement with the plaintiff landlord and an ex parte decree was passed. The sub-lessee thereupon brought a suit against the landlord and the lessee for a declaration that he was not bound by the decree which had been obtained by collusion between the defendants in order to injure the plaintiff and to evict him from the premises without a decree being passed against him. The suit was dismissed on the ground that the plaintiff failed to establish collusion. On such facts it was held that the suit was rightly dismissed. The mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it is clear that the defendant No.1 had not even a plausible defence to the claim for ejectment. Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. Where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. (See Suresh Chandra Jain Vs. IIIrd Addl. District Judge, Mathura & Ors. reported at (2001) 10 SCC 508 Paragraph 6, H. Seshadri Vs. K.R. Natarajan & Anr. reported at (2003) 10 SCC 449 Paragraph 13) This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. (See Suresh Chandra Jain Vs. IIIrd Addl. District Judge, Mathura & Ors. reported at (2001) 10 SCC 508 Paragraph 6, H. Seshadri Vs. K.R. Natarajan & Anr. reported at (2003) 10 SCC 449 Paragraph 13) This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. The mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded. Rupchand Gupta (supra) has been followed in a fairly recent decision of our High Court in Birla Corporation Limited Vs. Basant Properties Limited reported at 2011 (3) CHN (Cal) 193. Even prior to the 1956 Act, the creation of sub-lease was governed by Section 13 of the Rent Control Act, 1950. Section 13(1) requires that if a sublease is created by a tenant without the consent of the landlord such sub-lease shall not be binding on such non-consenting landlord. Section 13(1) as relevant for the present purpose as stated below:- “13(1) Notwithstanding anything contained in this Act, or in any other law for the time being in force, if a tenant inferior to the tenant of the first degree sub-lets in whole or in part the premises let to him except with the consent of the landlord and of the tenant of a superior degree above him, such sub-lease shall not be binding on such non-consenting landlord; or on such non-consenting tenant.” The law that was prevailing at that point of time makes it clear that under the general law, after the termination of the head lease, the sub-tenants hold on a precarious title, and when the tenancy under the head lease is terminated, their right to possession terminates too. Unlike trespassers, they hold over without right and in the suit for ejectment on the head lease, they are in the same position as trespassers and there was nothing to protect them against the landlord with whom there was no privity of contract. Unlike trespassers, they hold over without right and in the suit for ejectment on the head lease, they are in the same position as trespassers and there was nothing to protect them against the landlord with whom there was no privity of contract. A person in the position of a lessee can sue a person for eviction whom he finds in occupation of a land given in lease to him provided such person is not in occupation under a prior lease and such lease is valid and subsisting when the suit for eviction is filed by the subsequent lessee otherwise it would fall foul of Paragraph 33 of Sambhunath Mitra (supra) which has stated the law on this subject in the following words:- “33. Therefore, we are of the view that the lessor can create a third party's interest in the leasehold property either by creating sale deed or deed of exchange conveying lessor's right or making gift or creating mortgage but having himself divested of the right of the enjoyment of the property and reserving only lessor's right, the lessor cannot further create any lease. Lease is a peculiar doctrine of separation of title and possession. On execution of a lease, the title remains with the lessor but the possession goes to the lessee and once such document is executed, the lessor is capable of only transferring his title to the property by executing deeds of sale, exchange, mortgage, or gift but cannot transfer the right of enjoyment over again as he is already divested of such right at the time of creating the first lease. Therefore, we agree with the view taken in the subsequent case of Swapan Kumar Dutta v. Dharam Chand Jaiswal and Anr., reported 2002 (2) CHN 627 relied upon by Mr. Basu. We, consequently, find that Emerald Company Limited could not create any interest in favour of Khaitan Consultant Limited in the suit property by virtue of lease deeds executed by it and such being the position, the Khaitan Consultant Ltd, the plaintiff, could not file any suit for eviction of the alleged trespasser on the basis of right conferred by the lease deeds executed in its favour.” The requirement of previous consent in writing was considered and discussed in detail in Biswanath Poddar Vs. Archana Poddar reported at AIR 2001 SC 2849 ; (2001) 8 SCC 187 . Archana Poddar reported at AIR 2001 SC 2849 ; (2001) 8 SCC 187 . Section 26(2) of the West Bengal Premises Tenancy Act, 1997 in this case has fallen for consideration. For the purpose of brevity, Section 26(1) and (2) are stated below:- “S. 26. Creation and termination of sub-tenancy to be notified.- (1) Where after the commencement of this Act, any premises is sublet, either in whole or in part, by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises is sublet, shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within on month from the date of such subletting and shall, in the prescribed manner, notify the termination of such sub-tenancy within one month of such termination. (2) Where before the commencement of this Act, the tenant has, with or without the consent of the landlord, sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises has been sublet, shall give notice to the landlord of such subletting in the prescribed manner within [two years] of the commencement of this Act and shall, in the prescribed manner, notify the termination of such sub-tenancy within one month of such termination.” Although under the general law, the tenant enjoys the right to sublet without the landlord’s consent but such sub-tenant is bound by the decree for eviction passed against the tenant and cannot resist such eviction. However, both under the West Bengal Premises Tenancy Act, 1956 and under the present Act, the tenant cannot sublet without the written prior permission of the landlord. Section 26 of the 1997 Act is the same as Sections 14 and 16 of the old Act of 1956. Sections 14 and 16 of the 1956 Act reads:- “S.14.Restriction of subletting.- (1) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord, - (a) sublet the whole or any part of the premises held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof. (2) No landlord shall claim, demand or receive any premium or other consideration whatsoever for giving his consent to the subletting of the whole or any part of the premises held by a tenant. (2) No landlord shall claim, demand or receive any premium or other consideration whatsoever for giving his consent to the subletting of the whole or any part of the premises held by a tenant. S.16.Creation and termination of sub-tenancies to be notified. – (1) Where after the commencement of this Act, any premises are sublet either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sublet shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such subletting and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination. (2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sublet shall give notice to the landlord of such subletting in the prescribed manner [within six months] of the commencement of this Act and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination. (3) Where in any case mentioned in sub-section (2) there is no consent in writing of the landlord and the landlord denies that he gave oral consent, the Controller shall, on an application made to him in this behalf either by the landlord or the sub-tenant within two months of the date of the receipt of the notice of subletting by the landlord or the issue of the notice by the sub-tenant, as the case may be, by order declare that the tenant’s interest in so much of the premises as has been sublet shall cease, and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from the date of the order. Rents so fixed shall be deemed to be fair rent for purposes of this Act.” There is practically no difference between the new law and the old law as regards statutory requirement of giving notice for creation and termination of sub-tenancies except that the notice is to be given within two years of the commencement of the Act of 1997. Section 14 of the 1956 Act and Section 5 sub-section 5 of the present Act, the requirement of a written prior permission of the landlord is essential. It has clearly provided that no tenant shall sublet premises without the consent of the landlord in writing. Over and above, this prohibition of Section 16 of the 1956 Act made specific provision for giving notice both by the tenant as well as by the sub-tenant as well as the creation of sub tenancy after the introduction of the 1956 Act. In respect of sub-tenancy created prior to 1956 sub-section 2 of Section 16 of 1956 Act also provided for giving notice both by the tenant as well as by the sub-tenant. Rule 4 of the West Bengal Premises Tenancy Act, 1956 requires the notice under Section 16 to be given by registered post with acknowledgement due and such notice is to contain the particulars specified in the said rule giving of such a notice is mandatory. In Biswanath Poddar (supra) the Hon’ble Supreme Court held that unless requirement of 1956 Act is complied with the provision of Section 16 and the mandatory requirement of a notice under Section 16(1) was issued, the subtenant has no right to challenge the decree of eviction passed by the Court even if such sub-tenant has not been impleaded. Section 26(2) deals with pre-Act sub-tenancy whether such sub-tenancies were with or without the landlord’s consent. Both the tenant and the sub-tenant were to give notice of the creation of pre-act sub-tenancies. Such notice has to be issued within two years of the date of commencement of the 1997 Act. The manner of service of notice has been prescribed in Rule 12 of the West Bengal Premises Tenancy Rules, 1999. There is no basic difference between Rule 12 of the 1999 Rules and Rule 4 of the 1956 Rules. The Rules are identical. The manner of service of notice has been prescribed in Rule 12 of the West Bengal Premises Tenancy Rules, 1999. There is no basic difference between Rule 12 of the 1999 Rules and Rule 4 of the 1956 Rules. The Rules are identical. Rule 12 has been divided into two laying down the duties to be complied with when the cases come within the fold of Section 26(1) and the cases coming within the ambit of Section 26(2) of the Act of 1997. It has to be sent by registered post with acknowledgement due. The requirement of the first part of sub-section (2) of Section 26 of the new Act is that there must be notice of subletting once again to the landlord within two years of commencement of the new Act. The second part of sub-section 2 requires that tenant and sub-tenant shall notify the termination of sub-tenancy within one month of such termination. The reading of the said two sub-sections shows that it is obligatory for every sub-tenant to give notice to the landlord of the creation of sub-tenancy. Unless this is done a sub-tenant has no locus standi to come forward and challenge the legality of eviction decree passed against the tenant unless he alleges fraud. It has to be a fraud going to the extent of suppression of fact of notice given by him and keeping him in dark intentionally about the ejectment suit. Then and then only sub-tenant can oppose the execution of the decree. In Biswanath Poddar (supra), it was contended that the bilateral agreement between the tenant and the sub-tenant creating sub-tenancy which contained clause that the landlord had given consent to sub-let would bind the landlord and the sub-tenant cannot be evicted and the sub-tenant is a necessary party in a suit for eviction by the landlord against the tenant was negative. The decision of our High Court, in Paspur Travels Pvt. Ltd. Vs. Biswanath Poddar & Anr. reported at 2000 (2) CLJ 204 was reversed by the Hon’ble Supreme Court. The decision of our High Court, in Paspur Travels Pvt. Ltd. Vs. Biswanath Poddar & Anr. reported at 2000 (2) CLJ 204 was reversed by the Hon’ble Supreme Court. It is stated in Biswanath Poddar (supra) that under provisions of the Act the requirement of previous consent of the landlord as also intimation in writing in the manner prescribed under the Act by the tenant as well as the sub-tenant within the time stipulated thereunder being a mandatory requirement, the creation of sub-tenancy without fulfilling these requirements becomes opposed to S.14 of the Act. If it is a sub-tenancy created contrary to the provisions of the Act then as could be seen from S. 13(2) of the Act, it becomes unnecessary for the landlord to implead the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy. In the aforesaid case based on evidence the trial Court had come to the conclusion on facts that neither of the twin requirements, namely the previous consent of the landlord and notice in writing by the tenants is fulfilled. Therefore, it came to the conclusion that there was no obligation on the part of the landlord to have impleaded the second respondent as a party to the original eviction petition because the said respondent did not have a legal right to be heard in view of S.13(2) of the Act. A bilateral agreement between the tenant and the sub-tenant to deprive the owner of a statutory right of eviction by a contract inter se between themselves cannot be relied upon and on basis of clause in agreement “and whereas the first party by virtue of the consent of the tenant in respect of the said premises is otherwise empowered to sublet and/or part with possession and/or to let out the said premises or any portion thereof to any person or persons”, it cannot be contended the landlord had given previous consent to the original tenant to sublet or part with possession of the premises to any persons, and therefore, a separate previous consent of the original landlord (the appellant) is not essential. The landlord was not a party to the above agreement. The landlord was not a party to the above agreement. Any statement made in the said agreement would not be binding on the landlord and there being no other evidence to show that in fact there was such written previous consent given by the landlord to create a sub-tenancy. This being a mandatory requirement of law, it was held that the sub-tenant has failed to establish compliance of this mandatory requirement of the Act, i.e., S.14 of the Act. The language of S.14 clearly bars creation of any sub-tenancy without the previous consent in writing of the landlord. This requirement of notice is further qualified by the prescribed method of issuance of notice which is found in R.4 of the West Bengal Premises Tenancy Rules. The Section also prescribes the time limit within which such notice has to be given. Under R.4 the notice has to be sent by registered post. It also statutory prescribes the contents of the notice and the place to which it should be addressed. All these conditions coupled with the use of the word “shall” both in Section and the Rules indicate that the Legislature intended this requirement of notice under S.16 of the Act to be mandatory. Therefore, the requirement of S.16 is mandatory and not directory. It has been the consistent view both under the 1950 Act and the subsequent rent legislations that in the suit by a landlord against tenant for ejectment, the said sub-tenants are not necessary parties and, therefore, they cannot object to the delivery of possession on the ground that the decree is not binding as they were not made parties to it. Therefore, the decree for ejectment of the lessee can be executed against the sub-lessees although he was not made a party. The aforesaid discussion is made in order to show the status of the present applicants. In my view, the right of a lessee to sue for eviction of a person whom he found to be in occupation of the land emanates from Section 108(b) of the Transfer of Property Act. Under Section 108(b) of the Transfer of Property Act, the lessee has a statutory right to force the lessor to put him in possession of the lease property. In fact, the said Section casts that obligation on the lessor. Under Section 108(b) of the Transfer of Property Act, the lessee has a statutory right to force the lessor to put him in possession of the lease property. In fact, the said Section casts that obligation on the lessor. When there is a valid lease in favour of the lessee, the right to property created in his favour and is entitled to have possession and enjoy the lease in accordance with law. Where a lessor failed to perform its part of the obligation, the lessee has a statutory right to enforce performance of the obligation. The grant of lease presupposes on the part of the lessor, an obligation to put the lessee in possession. If he fails to perform that part, he cannot enforce the obligation of the lessee under the agreement. The lessor by granting a lease undertakes to put the lessee into possession and it does not matter that the lessor has not got possession himself. He who lets, agrees to give possession, and not merely to give a chance of a law suit as observed in Coe Vs. Clay; (1829) 5 Bing 440 which decision was followed in several decisions including Kandasami Vs. Ramasami; (1999) ILR 42 Madras 203. It is not the case here that the lessor was not obliged to put the lessee into possession. The conduct of the lessee, namely, the original plaintiffs would show that the original plaintiffs wanted possession and that is why they made an application for substitution in the suit filed by Deboprasad which, however, not allowed. If a lessor fails to give possession, the lessee can maintain a suit on his lease for possession against the lessor and against any third person who may be in possession. (See Achayya (supra) and Ahmadar Rahaman Vs. Jaminiranjan, AIR 1930 Cal 385) Under the Limitation Act, the period will be three years. In the instant case, it cannot be disputed that the suit was filed soon after the application for substitution was disallowed. Although the applicants appeared in possession of various portions of the property but having regard to the fact that from possession since inception was illegal and the plaintiffs for the purpose of the suit had recognized only Prafulla and none-else there could be no requirement to implead the applicants. Although the applicants appeared in possession of various portions of the property but having regard to the fact that from possession since inception was illegal and the plaintiffs for the purpose of the suit had recognized only Prafulla and none-else there could be no requirement to implead the applicants. The principle that in every lease, there is an implied contract that the lessor will give possession of the land to the lessee borrowed from English Law was applied to cases in this country even before the passing of the Transfer of Property Act, 1908. Section 108(b) imposes a statutory obligation to the same effect and is, thus, an enactment in substance of what the law was before. In Abdul Karim Vs. Upper India Bank Ltd., Delhi reported at AIR 1918 Lahore 238 it was held that the fact that the lessee can take legal proceedings to recover possession himself from the party in occupation will not relieve the lessor from his obligation to deliver possession. “He who lets, agrees to give possession, and not merely to give the chance of a law suit”. The persons mentioned in Serial No.33 to 51 were all inducted after institution of the instant suit and cannot be said to be in actual physical possession at the date of institution of this suit. Admittedly none of the applicants have been able to prove that they were inducted with the consent of the original owner as his successor or by the present plaintiffs. They also could not establish any independent title or right to occupy. At the time when lease was granted in favour of the original plaintiffs eviction proceeding was pending against Aruna and Pramil. The lease was determined long time back. The lessee is claiming under the lease. The lessee is entitled to possession and for that purpose can pursue the remedy as against a person in occupation as the landlord would do. At the time when lease was granted in favour of the original plaintiffs eviction proceeding was pending against Aruna and Pramil. The lease was determined long time back. The lessee is claiming under the lease. The lessee is entitled to possession and for that purpose can pursue the remedy as against a person in occupation as the landlord would do. Even if a view is taken that the applicants were sub-lessees under Prafulla and subsequently under Aruna but having regard to the fact that creation of subtenancies were not in accordance with the provisions of the Rent Control Act prevailing at the relevant time and the applicants although had the opportunity to attorn their tenancy in favour of the owner of the property as Prafulla and Aruna were facing eviction the applicants simply kept silent and did not assert their right at all. The applicants have failed to establish any right to occupy the said premises. The factum of actual possession in the absence of any legal basis could only mean an occupation as a trespasser. Moreover, a sub-lessee is protected only if such sub-lessee has taken the aforesaid safeguards. In such a situation, an allegation of fraud and collusion in obtaining eviction becomes purely academic, and non-consideration of the question of fraud and collusion does not in any manner detract the legality of eviction decree. Under such circumstances, the applications fail. The money deposited during the pendency of these applications shall stand forfeited and be realized by the decree-holder towards mesne profits. In the event, the applicants file their individual affidavit of undertaking within four weeks from date in E.C. No.146 of 2017 to the effect that they shall vacate their respective occupation by 31st December, 2018, mesne profits for the subsequent periods may not be realized from the applicants failing which the Receiver shall forthwith take steps for obtaining vacant possession of the suit premises from the applicants. However, there shall be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.