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2018 DIGILAW 82 (CAL)

Balaram Jana v. Madan Mohan Jana

2018-01-10

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2018
JUDGMENT : 1. The only point sought to be urged against the appellate order affirming the trial court’s decree for eviction is that the notice under Section 106 of the Transfer of Property Act, 1882 was issued by a person who had no contractual or other relationship with the appellant-defendant. 2. It is not in dispute that one Girish Chandra Jana had let out the southern portion of his property to the appellant herein. During the subsistence of the tenancy, the said Jana transferred the entirety of his interest in the property by two several documents; one pertaining to the northern portion of the premises in favour of the plaintiff no.1; and, the other in respect of the southern portion in favour of the plaintiff nos.2 to 4. 3. The notice under Section 106 of the said Act was issued by all the plaintiffs. It is the contention of the appellant that since original owner Jana did not sell his undivided interest in the property to the plaintiffs but transferred a demarcated portion thereof to the first plaintiff and the balance to the other plaintiffs, all the plaintiffs could not have joined in issuing the notice to the appellant or as plaintiffs in the suit. 4. In support of such contention, a Division Bench judgment reported at AIR 1968 Cal 532 (Parekh Brothers v. Kartick Chandra Saha) has been placed. It is evident from the report that three brothers instituted a suit against a tenant who had been inducted only by brother Kartick. The two other brothers were not parties to the contract and the tenant was also not aware of such other brothers’ rights in respect of the property. It was in such context that the Division Bench held, inter alia, as follows at paragraph 15 of the report: “15. … It is clear that the evidence on which the learned trial Judge relies does not support the plaintiffs case at all. Let us assume for the sake of argument that the premises in question belonged to the three plaintiffs and Kartick Chandra Saha had no right to let out the premises in his own name alone. Even so, the three plaintiffs cannot say that they are the landlords of the defendant. Tenancy is a matter of contract. Let us assume for the sake of argument that the premises in question belonged to the three plaintiffs and Kartick Chandra Saha had no right to let out the premises in his own name alone. Even so, the three plaintiffs cannot say that they are the landlords of the defendant. Tenancy is a matter of contract. If the other plaintiffs were nowhere in the picture when the tenancy agreement was made and if the defendant did not know about the existence of the other two brothers or at least did intend or contemplate entering into an agreement of tenancy with them, it is impossible to argue that there was, in fact, an agreement of tenancy between the defendant and all the three plaintiffs. The two other plaintiffs must seek for relief against Kartick. They can move against the defendant but in that case they must ask for a different kind of relief and they cannot found their claim for relief on an alleged contractual relationship between themselves and the defendant when, in fact, no such relationship existed. In these circumstances, one cannot escape the conclusion that the plaintiffs were not at all the landlords of the defendant. …” 5. The position in this case is quite far removed from what obtained in Parekh Brothers. It is not in dispute that the tenancy in this case was granted in favour of the appellant herein by the said Jana. It is also not in dispute that original owner Jana subsequently transferred the two parts of the property to the plaintiff no.1 and the plaintiff nos.2 to 4 by demarcating the areas transferred. Though it was not necessary for the plaintiff no.1 to be a party to the notice under Section 106 of the Act of 1882 or for such person to be impleaded as a plaintiff in the eviction suit, his mere presence in the suit or the appearance of his name as one of the addressers in the notice cannot be said to have either vitiated the action or the notice. In Parekh Brothers, the contract of tenancy was entered into by one of the joint owners to the exclusion of the others. As such, the other two joint owners could not have claimed to be parties to the contract of tenancy to seek the eviction of the tenant. The dispute was at the root of the contract. In Parekh Brothers, the contract of tenancy was entered into by one of the joint owners to the exclusion of the others. As such, the other two joint owners could not have claimed to be parties to the contract of tenancy to seek the eviction of the tenant. The dispute was at the root of the contract. In this case there is none. 6. Even here, if the said Jana had transferred his interest in the property without demarcating the areas in favour of the plaintiff no.1 or the plaintiff nos.2 to 4, all the plaintiffs would have had to issue the notice and joined as plaintiffs. The fact that, in such a scenario, a party who could not be regarded as one of the landlords lent his name to the notice or his presence to the action could not have confused the appellant herein in any manner as to the nature of the contract for tenancy; far less as to the scope of the notice or the subsequent action. It is evident that the appellant herein seeks merely to take advantage of the needless presence of the first plaintiff in the action and the pre-suit notice being issued by, inter alia, such person, without there being any prejudice that the appellant herein suffered on such account. 7. For the reasons aforesaid, it does not appear that any substantial question of law has been raised in seeking to challenge the affirmation of the decree for eviction. SAT 402 of 2017 and CAN 9902 of 2017 are dismissed. 8. There will be no order as to costs. 9. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.