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2023 DIGILAW 400 (CAL)

Sandhya Rajak v. Ghanashyam Rajak

2023-03-21

PARTHA SARATHI CHATTERJEE, TAPABRATA CHAKRABORTY

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JUDGMENT : TAPABRATA CHAKRABORTY, J. 1. The challenge in the present appeal is against the order and/or decree dated 28.9.2015 passed by the learned Civil Judge, Senior Division, 2nd Court, Asansol in T.S. No. 1137 of 2014 whereby the suit has been dismissed ex-parte. 2. One Sandhya Rajak and her two sons, all being legal heirs of one Raj Narayan Rajak (in short Raj Narayan), since deceased filed one suit for partition, which was registered as T.S. No. 1137 of 2014, against one Ghanashyam Rajak contending, inter alia, that the suit property originally belonged to one Kamala Devi, who transferred the same in favour of Smt. Charanjit Kaur by virtue of one registered deed of permanent lease vide no. 2363 of 1982. 3. Raj Narayan and Ghanashyam were the tenants under Kamala Devi and they used to conduct a laundry-business jointly in the suit premises and subsequently they became bona fide tenants under Charanjit and later Charanjit transferred the suit property in favour of Raj Narayan and Ghanashyam by executing two separate deeds of sale vide. Nos. 728 dated 14.2.1984 and 723 dated 9.2.1984 and it was claimed that Raj Narayan and Ghanashyam constructed first floor on the suit premises from the joint fund of laundry-business. 4. Raj Narayan died on 18.8.2007 leaving behind Sandhya as his widow and two sons, namely, Sanjeet and Surjet (hereinafter referred to as the plaintiffs) and it was asserted that the plaintiffs are joint owners of the suit property and laundry-business to the extent of half share thereof and the defendant, who used to share 50% profit of the business with the plaintiffs, suddenly stopped paying the same and on 31.7.2014 by issuing one letter, the plaintiffs demanded partition of the suit property by metes and bound and half share of that business but on 4.8.2014, the defendant refused to share the profit of that business and also refused to make partition of the suit property and hence, plaintiffs were constrained to institute the suit praying for partition and separate possession of the suit property and accounts of the business. 5. Records reveal that the Ghanashyam entered his appearance and prayed for accommodation to file written statement but thereafter, he did not take any step and hence, the suit was fixed for ex parte hearing. 6. 5. Records reveal that the Ghanashyam entered his appearance and prayed for accommodation to file written statement but thereafter, he did not take any step and hence, the suit was fixed for ex parte hearing. 6. In corroboration of the facts epitomized in the plaint, the plaintiffs adduced oral testimony of Sanjeet and plaintiffs tendered deeds of sale vide. Nos. 728 of 1984 and 723 of 1984, certified copy of the deed vide. No. 2363 of 1982, Municipal Tax Receipts and two rent receipts, marked as Ext.1 to 5 series respectively. 7. Upon perusal of pleading and upon appreciation of evidence brought on record by the plaintiffs, learned Court below dismissed the suit ex-parte, holding, inter-alia, that Charanjit was a lessee and she had no right to sell the suit property and plaintiffs could not produce any document relating to joint laundry-business. Aggrieved thereby, plaintiffs have preferred the present appeal. 8. None appeared to represent the respondent and consequently, the appeal was taken up for hearing in absence of the respondent. 9. Drawing our attention to clause 2(iii) of the deed of lease vide. No. 2363 dated 31.3.1982, Mr. Raha learned advocate, appearing for the plaintiffs/appellants (in short, the appellants) submits that Charanjit had been empowered to ‘part with possession’ and being so empowered, Charanjit sold out the suit property to the predecessor of the plaintiff and to the defendant/respondent (in short, respondent) by two different deeds and suit property is still joint and there is no impediment in directing partition of the suit property. He further submits that even the Court can direct partition of lease-hold property. In support of such contention, he placed reliance upon the judgments delivered in the cases of Rajani Mohan Saha and Others vs. Sambhu Nath Saha and Others, AIR 1929 Cal. 710 and Raghuram Rao and Others vs. Eric P. Mathias and Others, AIR 2002 SC 797 . 10. From Ext.3 it transpires that Kamala Devi acquired the suit property by dint of one registered deed of gift being no. 3381 of 1940 executed by one Nathmal Marwari and then by executing one registered deed of lease vide. 710 and Raghuram Rao and Others vs. Eric P. Mathias and Others, AIR 2002 SC 797 . 10. From Ext.3 it transpires that Kamala Devi acquired the suit property by dint of one registered deed of gift being no. 3381 of 1940 executed by one Nathmal Marwari and then by executing one registered deed of lease vide. No. 2362 dated 31.3.1982 leased out the suit property to one Charanjit Kaur for a period of 999 years with a stipulation that at the expiration of term of lease, the lessee shall deliver possession of the property in it’s the then state to the lessor and lessee was authorised to transfer leasehold interest, to underlet or otherwise part with the possession of the leasehold property. 11. Charanjit by executing two deeds of sale vide. No. 728 dated 14.2.1984 and No. 723 dated 9.2.1984 transferred 1 chitak, 42½ sq. fts. to Raj Narayan and 1 chitak 42 sq. ft. to Ghanashyam from plot no. 356. Charanjit executed such deeds in 1984 and put both Ghanashyam and Raj Narayan into possession and they have improved the portion let out to them and Ghanashyam and plaintiffs are in possession of the suit property for more than 38 years. 12. Well-recognised proposition of law is that no one can convey a better title than he himself has in the property. This principle is based on a maxim ‘nemo dat quod non habet’ which means no one gives what he does not possess. It needs no emphasis that the successor will not have better title that what his predecessor had. 13. Scope of the right of ownership lies in (i) possession, (ii) enjoyment and (iii) disposition. A lease is the transfer of a right to possess and enjoy the property. Transfer of interest in the property is distinct and different from transfer of ownership. Indisputably, Charanjit was a lessee and she was given right to possess and enjoy the property and hence, Charanjit cannot transfer ownership of the suit property or any portion thereof. Charanjit was authorised to transfer leasehold interest or to under-let. Charanjit cannot be treated as ‘ostensible owner’ since in the recital of the deeds she had admitted that she took lease of suit property for 999 years. The clause ‘parting with possession’ envisages not in the context of sale, transfer and assigning but in the case of sub-letting in the case at hand. Charanjit cannot be treated as ‘ostensible owner’ since in the recital of the deeds she had admitted that she took lease of suit property for 999 years. The clause ‘parting with possession’ envisages not in the context of sale, transfer and assigning but in the case of sub-letting in the case at hand. Consequently, the transfers made by Charanjit shall be transfers of leasehold interest and such act is an act of creation of sub-lease only and parties hereto, who have been put in possession, are to be treated as sub-lessees only. It is trite that to construe one instrument, it is not the nomenclature but the substance thereof that needs to be looked into. Charanjit herself admitted to be a lessee having power to underlet and hence, deeds executed by Charanjit can only be construed to be deeds of transfer of leasehold interest only. Such transfer is not barred under section 6 of Transfer of Property Act, 1882 if the deed of lease empowered the lessee to make such transfer. 14. It is axiomatic that absolute demise by sub-lease for the unexpired residue of the term operates not as an assignment of the term but only as a sub-lease. It is well settled that several lessees can seek partition inter se which is usually made for convenience of enjoyment of leasehold and such partition does not in any way affect the integrity of the tenancy, if the tenancy is joint-tenancy. Undoubtedly, lessees may be joint tenants and tenants-in-common also. [See the judgment delivered in the cases of Rajani Mohan Saha (supra) and Badri Narain Jha and Others vs. Rameshwar Dayal Singh and Others, AIR 1951 SC 186 ]. 15. By executing two instruments, Charanjit transferred her right to Raj Narayan and Ghanashyam and accordingly, status of Raj Narayan and Ghanashyam would be not like joint-tenants but like tenants-in-common and partition sought for by them would be the partition for convenience of enjoyment of leasehold interest in respect of the suit property and such partition, if made, shall not have the effect of declaration of the title and/or ownership in respect of the suit property. The plaintiffs could not bring any scrap of paper relating to joint laundry-business. 16. Charanjit took lease of 7 dec. of homestead land comprising of two plots namely, R.S. 355 and 356 measuring the areas of 2 dec. and 5 dec. The plaintiffs could not bring any scrap of paper relating to joint laundry-business. 16. Charanjit took lease of 7 dec. of homestead land comprising of two plots namely, R.S. 355 and 356 measuring the areas of 2 dec. and 5 dec. respectively and it shall be deemed that out of R.S. plot no. 356, Charanjit transferred lease hold interest in respect of one chitak 42½ sq. fts. in favour of Rajnarayan and one chitak 42 sq. ft to Ghanashyam from plot no. 356. 17. In conclusion, the appeal is allowed and the judgment and decree impugned herein are set aside. 18. It is hereby declared and decreed that the plaintiffs being the legal heirs of Raj Narayan have the lease-hold interest in respect of one chitak 42½ sq. fts. in R.S. plot no. 356 whereas the respondent, Ghanashyam has lease hold interest in respect of 1 chitak 42 sq. ft. in R.S. plot no. 356. 19. Parties hereto are directed to make amicable settlement of suit property within two months from date, failing which they shall approach the learned Court below to get such lease hold properties of the parties partitioned, in accordance with law for the convenience of enjoyment of the lease hold properties by the parties hereto. 20. With these observation and order, the appeal is thus, disposed of, however, without any order as to the costs. 21. Let a decree be drawn up, accordingly. 22. Let a copy of this judgment along with LCR be sent down to the learned Court below forthwith.