Civil Appellate Jurisdiction v. RAJ KUMAR GHOSH & Ors.

(for short, the first suit) seeking delivery of possession and recovery of arrear rents along with consequential reliefs.

5. By an order dated May 29, 1959 the District Judge, Alipur, revoked the probate in respect of the will of Probodh, though, inspite thereof Prafulla was in continuous and settled possession of the property and pursued the appeal from the said order of revocation.

6. On or about April 11, 1960 the said first suit was decreed ex parte and an appeal was carried out there from being appeal no. 109 of 1960. In the said appeal on September 11, 1963 a compromise was arrived at by which on certain terms and conditions as mentioned therein, the suit was remanded for further trial.

7. Meanwhile Prafulla inducted some of the appellants obstructionists in the various portions of the property as his tenants and was receiving rents.

8. By a will dated July 16, 1963 Debaprosad the original landlord, bequeath the said property in favour of his son Dhruba Gooptu.

9. On December 12, 1964 Debaprosad died. On April 03, 1965 Prafulla being the first defendant in the first suit died.

10. By an order dated August 04, 1965 this Court recorded the death of Debaprosad and substituted Dhruba as the plaintiff in the said first suit. Similarly on August 14, 1965 this Court by its order recorded the death of Prafulla who was the original first defendant in the first suit and substituted his legal heirs and successors in his place and stead, namely, Aruna Basu Malik, Promil Ghosh, Subarnabala Mitra. Since then, the cause title of the first suit was substituted as Dhruba Gooptu vs. Aruna Basu Malik & Ors. After the death of Prafulla his legal heirs and successors 9 namely Aruna Basu Malik were continuing in accepting rents from the appellants obstructionists acknowledging their tenancy in the property and issued rent receipts. The appellants had disclosed such rent receipts in their respective applications.

11. On October 14, 1974 the District Judge, Alipur granted probate in respect of the will of Prafulla dated March 31, 1965 in favour of Aruna, the sole executrix, which according to the appellants include the tenancy right of Prafulla. On October 07, 1977 probate was obtained by Dhruba in respect of the will of Debaprosad dated July 16, 1963.

12. After obtaining the grant of probate in respect of the will of Debaprosad by a registered lease dated February 06, 1978, Dhruba granted lease in favour of the seven individual partners of Bando & Co. during pendency of the first suit. On February 22, 1983 Dhruba died leaving a will appointing Shankar Narayan Gooptu and Naranarayan Gooptu as his executors. The probate is not yet obtained. The said two executors of the will of Dhruba acknowledged the Bando as alleged lessees of the property and informed them about the demise of Dhruba. On May 20, 1983 the Bando applied for recording the death of Dhruba and for the necessary substitution in the first suit, the same was rejected. The first suit was then abated in 1983 itself upon the death of the plaintiff and since there was no substitution.

13. In 1984 the partnership firm of the Bando namely Bando and Co. was reconstituted. On July 25, 1984 the Bando filed suit no. 524 of 1984 (for short, the second suit) before this Court claiming the following reliefs: “(a) Declaration that the Indenture of Lease dated 6th February 1978 executed by Dhruba Gooptu, since deceased, in favour of the original plaintiffs is valid and subsisting and binding upon all the parties concerned and/or upon their agents, assign or representative, (b) Declaration that the present defendant Nos.1 and original defendant no.2 have no right-title or interest to remain in possession of premises No.2, Jawharlal Nehru Road, Calcutta, in any capacity whatsoever (c) Declaration that the present defendant Nos.1 and the original defendant no.2 have no right or authority or jurisdiction to collect any rents, issues and profits from the persons to whom they have wrongfully sublet the said premises, (d) Declaration is also necessary that the tenancy created by Debaprosad Gooptu in favour of Profulla Kumar Mitra, both since deceased in respect of premises No.2, Jaharlal Nehru Road, Calcutta has duly been determined and/or been terminated and the same are binding upon the heirs of Prafulla Kumar Mitra, (e) Declaration that the present plaintiffs by virtue of the Indenture of lease dated 6th February 1978 are entitled to immediate possession of the demised premises, 10 (f) Declaration that the present defendant no.1 and the original defendant no.2 to 4 are bound to make over peaceful vacant possession of the demised premises to the present plaintiffs. (g) Possession of the said premises No.2, Jawaharlal Nehru Road, Calcutta described schedule ‘X’ hereto. (h) Perpetual injunction restraining the present defendant no.1 and the original and/or each of the defendants and/or their agents or assigns or representatives from dealing with or encumbering the demised premises in any manner whatsoever to the detriment of the interests of the present plaintiffs, (i) Injunction, (j) Receiver, (k) Costs, (l) Such further order/orders as to this Hon’ble Court may deem fit and proper”.

14. The plaint in the second suit was amended.

15. On or about August 24, 1984 an application was filed by the plaintiffs in the second suit for appointment of receiver on the premises to collect rent from the tenants/sub-tenants and an order of injunction was passed. On June 18, 1985 an order was passed by this Court appointing a Special Officer to cause an enquiry in the property and to file a report. Ms. Aruna Basu Malik, was directed to keep the amount collected from tenants/sub tenants in a separate bank account and to pay regular maintenance in respect of the suit property. She was also directed not to induct any further tenant in the property. The Special Officer so appointed filed a report on July 15, 1985 recording the names of the occupants at the property.

16. By an order dated December 05, 1985 in the testamentary proceeding relating to the estate of Prafulla, Aruna Basu Malik, the first defendant in the second suit being the executrix was authorized and directed to collect rents, issues, profits and deposits and to maintain a separate account for this purpose and Aruna was further allowed to incur expenses and make the necessary disbursement out of such collections. The receiver so appointed on the property in December, 1985 submitted his second report mentioning the outstanding receivable out of the property. On April 06, 1985 the said second suit was dismissed on the ground of default.

17. On April 17, 1995 Aruna made her last will and testament naming Jayashree Ghose as the executrix and bequeathed the tenancy in the suit 11 premises in her favour solely. Jayashree is the first defendant at present in the amended plaint in the second suit.

18. Between 1988 to April, 2005 the original plaintiffs in the said second suit died. The partnership firm namely Bando and Co. was reconstituted from time to time and the plaintiffs at present in the amended plaint had claimed to be the present partners of the Bando and Co.

19. By an order dated August 11, 2008 Jayashre was appointed as the administrator pendent lite in respect of the estate of Aruna.

20. By an order dated November 18, 2015 after about ten years of the second suit being dismissed for default, was restored, the amendment was allowed in the plaint and the original parties in the said second suit were substituted at the instance of the plaintiffs. None appeared on behalf of the second, third and fourth defendants. On or about December 12, 2016 Jayashree filed her written statement in the second suit. Issues in the suit were framed on January 11, 2017. On May 3, 2017 the second suit was decreed on compromise on the basis of a terms of settlement arrived at between the plaintiffs and the first defendant Jayashree. From the terms of settlement it appears that, the second, third and fourth defendants did not appear and contest the suit.

21. The plaintiff decree holders then in June, 2007 instituted the execution proceeding being EC 146 of 2017. An order was passed on June 13, 2017 appointing receiver to take actual physical possession of the portions of the premises from the occupants. By an order dated July 04, 2017 receiver was directed to put notice at the entrance of the property. There are fifty eight nos. of occupants who are resisting the said compromise decree. Such applicants in July, 2017 filed their respective applications under the provisions of order XXI, Rule 99 read with Section 47 of the code resisting the decree. Parties had exchanged their respective affidavits in such resistance applications including the supplementary affidavit by the decree holder and the counter thereto by the obstructing claimants.

22. On August 16, 2018 the judgment and order impugned was passed. 12 Arguments:

23. Mr. Jishnu Choudhury, learned counsel with Ms. Noelle Banerjee, Advocate appearing on behalf of the appellants, inter alia, in APD 269 of 2018 submitted that, Probodh was a monthly tenant under Deboprasad since prior to 1949 under the State Tenancy Law of 1950 then prevailing, which governed the relationship of land lord and tenant between Deboprasad and Probodh. After the demise of Probodh, Prafulla was occupying the suit property and carried out the hotel business of Probodh from the demised portion of the suit property and Deboprasad as the land lord regularly accepted monthly rent from Prafulla. Thus, Prafulla became a monthly tenant of Deboprasad in respect of the demised property. On the sole ground of default the eviction notice dated August 12, 1953 was issued to Prafulla under the relevant provision of the West Bengal Premises Rent Control Act, 1950 (for short, the said Tenancy Act of 1950). The first suit was then filed on the basis of the said eviction notice, which later had ripen to a consent decree of September 11, 1963 by which the suit was remanded for fresh hearing. Subsequently with the death of the plaintiff in the first suit no substitution had taken place and as a result, the first suit stood abated. In view of such abatement no adjudication took place in the said first suit which could bind the parties therein and the land lord tenant relationship between the Gooptus and Mitras had continued. According to Mr. Chowdhury, such jural relationship still continuing between the land lord of the property and the successor in interest of Prafulla. During the lifetime of Prafulla the appellants were inducted in the various portions of the suit property and since then they are in settled possession and occupation of their respective portions in the suit property. Thus, the Bando, plaintiffs in the second suit did not have and could not claim any privity or any jural relationship with the appellants. The appellants are continuing in possession at the suit property by virtue of their independent right being inducted by Prafulla in the property to the notice and knowledge of Deboprasad the original landlord. The appellant had acquired an 13 independent right, which was required to be adjudicated by the executing court, to which the executing court had erred in law and on facts by not doing so and erroneously directed dispossession of the appellants from the suit property.

24. He then submitted that, Deboprasad had issued the said eviction notice dated August 12, 1953 asking Prafulla to quit under the said Rent Act of 1950 solely on the ground of default. Then Deboprasad filed the first suit seeking eviction of Prafulla. The first suit ultimately stood abated. The notice, therefore, did not result in forfeiture. Issuance of eviction notice under the Rent Act does not result the tenant becoming a trespasser till the decree for eviction is pronounced by a jurisdictional civil court and such a tenant continues as a statutory tenant. In support of his contentions Mr. Chowdhury relied upon the following judgments:- (i) In the matter of: Krishna Prosad Bose versus Official Assignee of the High Court of Judicature at Rangoon and others, reported at AIR 1936 Cal 505; (ii) In the matter of: Damadilal and Others versus Parashram and Others, reported at (1976) 4 SCC 855; (iii) In the matter of: V. Dhanapal Chettiar versus Yesodai Ammal, reported at (1979) 4 SCC 214.

25. Mr. Choudhury then submitted that, the lessor after divesting itself of possession in favour of the lessee, only retains a right of reversion and to collect rent. Reversion is used to forfeit and get back possession of the property from the lessee. This right can only be transferred by way of sale under Section 54 of the Transfer of Property Act. Therefore, during the currency of a lease or tenancy, no further lease can be created in respect of the self same property and such concurrent lease or tenancy is void and of no effect. In support of such contention Mr. Choudhury had relied upon the following decisions:- (i) In the matter of: Swapan Kumar Dutta versus Dharam Chand Jaiswal & Anr., reported at (2002) 2 CHN 627; (ii) In the matter of: Sambhunath Mitra and Others versus Khaitan Consultant Ltd. and others, reported at (2005) 2 CHN 519 [Reversed in (2015) 15 SCC 567]; 14 (iii) In the matter of: Prabhat Kumar Paul versus Shree Shree Lakshmi Janardan Thakur & Ors., reported at (2008) 2 CHN 445; (iv) In the matter of: Swapan Kumar Dutta versus Bimala Devi Shaw alias Jaiswal & Ors., reported at (2004) 3 Cal LT 414; (v) In the matter of: M. E. Moola Sons, Limited versus Official Assignee of the High Court of Judicature at Rangoon and Others, reported at AIR 1936 PC 230.

26. Mr. Choudhury then submitted that, the status of the Mitras after the abatement of the first suit became that of a statutory tenant, since the notice of eviction. Since the notice of eviction dated August 12, 1953 was issued and the same did not culminate into any eviction decree as the first suit stood abated, in such situation, no suit for possession is maintainable against a statutory tenant as a trespasser. In support of such contention Mr. Choudhury relied upon a decision of the Supreme Court In the matter of: R.S. Grewal and Others versus Chander Prakash Soni and Another, reported at (2019) 6 SCC 216.

27. Mr. Choudhury on behalf of the appellants next argued that, an under lessee is not prejudiced by surrender of lease under Section 115 of the Transfer of Property Act, 1882. In case of such a surrender, the lease is obliterated and the direct privity is established between under lessee and the headlessor. In support of this contention Mr. Choudhury relied upon the following decisions: (i) In the matter of: Suleman Haji Ahmed Oomer versus Darashaw Pirojshaw Dubash,reported at AIR 1939 Bom. 98= 1938 SCC Online Bom. 44; (ii) In the matter of: Tirath Ram Gupta versus Gurubachab Singh and Another, reported at (1987) 1 SCC 712.

28. Mr. Jishnu Choudhury then proceeded to submit that, the compromise decree pronounced in the second suit on the basis whereof the execution proceeding was initiated and the appellants were sought to be dispossessed from the property, was not lawful and was obtained by practising fraud on Court as also on parties and as such the same is liable to be set aside and not tenable in law. Any steps taken or to be taken pursuant to such fraudulent decree would also be void. He then submitted that, in case of forfeiture of lease or tenancy, under lessee cannot get any right to resist the 15 same, except in case of fraud. To support such contention Mr. Choudhury relied upon the decision; In the matter of: Sailendra Nath Bhattacharya versus Bijan Lal Chakrabarti, reported at AIR 1945 Cal 283=1944 SCC Online Cal 74.

29. Mr. Choudhury then submitted that, a consent decree is nothing but an agreement between the parties thereto and the same is subjected to rights and liabilities which an agreement may enjoy or suffer. Having a stamp of Court affixed on a consent decree, which is otherwise a result of fraud, does not change the nature of the document and the same does not stand on a better footing than an agreement. Such a consent decree is obtained from Court of law by practicing fraud on Court and on parties is liable to be set aside. The consent decree is not a result of any adjudication but merely an agreement. Seal of Court cannot make it perfect, if it is a result of fraud. In support of such contention Mr. Choudhury relied upon the following decisions: (i) In the matter of: Ruby Sales and Services (P) and Another versus State of Maharastra and Others, reported at (1994) 1 SCC 531; (ii) In the matter of: Baldevdas Shivlal and Another versus Filmistan Distributors (India) P. Ltd. and Others, reported at (1969) 2 SCC 201.

30. It was then submitted that, a compromise decree under Order XXIII, Rule 3 of the Code requires to be a lawful contract and understanding between the parties. The seal of the court is given when the court is satisfied that, such an agreement is lawful. To support such contentions the learned counsel relied upon a decision of the Hon’ble Supreme Court in the matter of: Rama Narang versus Ramesh Narang and Another, reported at (2006) 11 SCC 114.

31. On the scope of the proceeding under Order XXI, Rule 99 read with Section 47 of the code and the jurisdiction of the Executing Court thereunder, Mr. Choudhury submitted that, an objection raised by a stranger to a decree can be gone into and has to be adjudicated lawfully by recording a finding in respect of the independent right of an obstructionist. It is the obligation of the Executing Court to determine the questions legally raised by an obstructionist and must be determined between the parties in the 16 execution, as provided under Rule 101 of Order XXI of the code. In support of such contention Mr. Choudhury relied upon a decision of the Hon’ble Supreme Court in the matter of: Silverline Forum Pvt. Ltd. vs. Rajiv Trust and another, reported at AIR 1998 SC 1754.

32. Mr. Arindam Banerjee, learned counsel with Mr. Arpita Saha and Ashis Kumar Mukherjee, Advocates appeared for the appellant in APD No. 269 of

2018. At the outset Mr. Banerjee specifically submitted that, he adopted the entire submissions of Mr. Jishnu Choudhury, learned counsel, as the defence of his client is also same and identical with that of Mr. Choudhury’s clients in resisting the decree passed in the second suit and to oppose the impugned judgment and order under appeal.

33. Mr. Arindam Banerjee, learned counsel submitted few further points in addition to the submissions already made by Mr. Choudhury. Mr. Banerjee also accepted the facts already stated by Mr. Jishnu Choudhury, learned advocate.

34. Mr. Arindam Banerjee, learned counsel drew attention of this Court to the plaint filed by the Bando in the second suit, he placed the relevant paragraphs and the reliefs claimed therein. He submitted that, the basis of the alleged cause of action of the second suit was that, the Mitras were trespassers in the property and the Bando by virtue of their 1978 lease had stepped into the shoes of the land lords, namely, Gooptus and acquired all the rights of the Gooptus to proceed against Mitras for their eviction. The obstructionists being the appellants were not impleaded in the second suit as the defendants, though, Bando was aware of their settled possession at the suit property as the tenants under the Mitras. Drawing attention of this Court to the reliefs claimed in the said second suit filed by the Bando, he submitted that, a declaration was sought for, that the tenancy created by Deboprasad Gooptu in favour of Mitras in the suit premises be determined and/or terminated. Declaration was also sought for that, by virtue of the said 1978 lease the Bando was entitled to immediate possession of the demised premises. 17

35. Mr. Banerjee submitted that, it was a tenancy granted to Mitras by the Gooptus under the said Rent Act of 1950 and not under the Transfer of Property Act. In absence of any decree for eviction passed by a competent Civil Court against the Mitras, the question of evicting the Mitras or their successors in interest from the property in the subject execution proceeding did not and could not arise. The client of Mr. Banerjee had an independent right by virtue whereof he is in a settled possession of the property, who could not be thrown out from its settled possession at the suit property in the subject execution proceeding.

36. Mr. Banerjee, drew the attention of this Court to the supplementary affidavit filed on behalf of the decree holders, affirmed by Raj Kumar Ghosh on November 09, 2017 filed in EC No. 146 of 2017. He drew attention of this Court to the relevant paragraphs and submitted that, Bando were aware of the abatement of the first suit filed by the Gooptus for the eviction of Mitras. The said first suit being abated there was no proceeding in the eye of law for eviction of Mitras. Therefore, question of evicting the sub- tenants under the Mitras did not and could not arise through the subject execution proceeding, in which the impugned order was passed.

37. Mr. Banerjee then, submitted 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. On the basis of such settled principle of law, he submitted that, the second suit is barred by law for not impleading the appellants/occupiers/obstructionists. The suit being bad, the compromise decree is also bad and is of no effect. Hence, the impugned judgment and order is also bad and is of no effect. In support of his contention Mr. Banerjee placed reliance on: Mulla’s Commentary on the Transfer of Property Act, 1882 (12th Edition, Page 852).

38. Mr. Banerjee then submitted that, if a decree is nullity, an obstructionist can raise such objection notwithstanding with 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 18 put into execution is valid. Such an adjudication within the scope of Order XXI, Rule 101 of the Code even suggests for a detailed trial, if necessary, to adjudicate upon all the factual issues to come to a decision as to the right of the obstructionist, if any. In support of such contention Mr. Banerjee relied upon the following judgments: (i) In the matter of: Subhendu Gupta vs. Calcutta Vyapar Pratisthan Ltd., reportd at (1995) 1 Cal LT 427; (ii) In the matter of: French Agency vs. Smt. Jiwani Kumari Parakh, reported at (1999) 2 Cal LJ 513.

39. Mr. Banerjee further submitted that, once the decree holder faces with obstruction/resistance by the obstructionist in the execution of decree for possession, the decree holders, the Bando in the instant case, were required to apply under Order XXI, Rule 97 of the code for removal of such obstruction. The decree holder cannot bypass or circumvent such obstruction. In support of such contention the learned counsel relied upon the decision of the Hon’ble Supreme Court In the matter of: Anwarbi vs. Pramod D.A. Joshi, reported at (2000) 10 SCC 405.

40. On the effect of abatement, the Learned Counsel, Mr. Banerjee submitted that, with the abatement of the said first suit filed by the Gooptus the entire cause of action as on the date of the filing of the suit became without of any further effect including the said notice to quit dated August 12,

1953. The said notice to quit was the basis of the cause of action in the said first suit which had came to a complete end and of no further effect immediately on the abatement of the suit. The Gooptus or anybody through them could not have taken any advantage of the said first suit or the said notice to quit dated August 12, 1953. In support, he relied upon a decision of a Co-ordinate Bench of this court In the matter of: Naimuddin Biswas and Ors… defendant, appellants versus Maniraddin Laskar and Ors… plaintiffs, respondents, reported at 32 Calcutta Weekly Notes (CWN) 299.

41. On the basis of the above arguments both Mr. Jishnu Choudhury and Mr. Arindam Banerjee, learned advocates appearing for the obstructionists appellants submitted that, the impugned judgment and order should be set 19 aside and/or reversed and rights of the appellant need to be determined first.

42. In addition to the submissions as recorded above, Mr. Arindam Banerjee, learned counsel, filed a detailed notes on argument, to which this Court had take note of. Upon due consideration of the said written notes on argument it appeared to this Court, that, certain additional judgments were referred to in support of the same and identical propositions already argued by Mr. Jishnu Choudhury, learned counsel and the same had already been adopted by Mr. Banerjee. To avoid repetition, this Court thought it fit, with due respect to Mr. Arindam Banerjee, learned Advocate, not to discuss the same, as the same would only multiply the volume of papers on record.

43. Mr. Rohit Das, Learned Counsel appearing for the decree holder (Bando) submitted that, the moment the said notice to quit dated 12th August, 1953 was served upon the Mitras by the Gooptus, under the said Rent Act of 1950, the status of the Mitras became that of a statutory tenant in the suit property. The first suit for eviction was filed by the Gooptus on the basis of the said notice to quit. Though the said first suit stood abated, the said notice to quit dated 12th August, 1953 did not cease its force and the status of the Mitras continued as a statutory tenant and the Mitras could not have claimed a better right. On February 06, 1978 the Gooptus demised the said suit premises on lease in favour of the Bando for ninety nine years. The Mitras accepted and acknowledged such lease. The Mitras accordingly acknowledged the Bando as their landlord in place and stead of Gooptus. It was contended on behalf of the decree holder that by virtue of the said lease dated February 06, 1978 the Bando had stepped into the shoes of the landlord Gooptus in the suit premises with a right of a landlord and lessor qua the Mitras. The Bando had a right to collect rent and also of reversion qua the Mitras. Accordingly the Bando became the beneficiary of the said notice to quit dated August 12, 1953 and enforced the same by filing the said second suit for eviction against the Mitras and/or their successors-in- interest in the suit premises along with the subsequent cause of action on 20 the ground of illegal and wrongful occupation in the premises. He then, submitted that, the lease dated February 06, 1978 granted by the Gooptus in favour of Bando was a valid lease and even if the same is to be construed as a concurrent lease, the same was valid and lawful. In support, the Learned Counsel for the decree holder had relied upon numerous judgements of various High Courts in his written notes and ultimately he selected the six best of such judgements according to him and formally cited before this court, which are: (i) In the matter of: P.J. Irani versus State of Madras & Anr., reported at AIR 1961 SC 1731; (ii) In the matter of: Jahar Lal Bhutra versus Bhupendra Nath Basu, reported at ILR (1922) 49 Cal 495: AIR 1922 CAL 412; (iii) In the matter of: Shree Narayan Mansingha versus Durgadas Mishra, reported at 55 CWN 86; (iv) In the matter of: Manikkam Pillar versus Rathnasami Nadar and Ors., reported at (1917) 33 MLJ 684; (v) In the matter of: Munshi Lal Niyaria versus Kedar Nath & Ors., reported at MANU/ UP/ 0346/ 1970: (1970) 40 AWR 803 and (vi) In the matter of: Bhagat Ram and Others versus Kesham Deo and others, reported at AIR 1965 Assam 55.

44. On the strength of the law as stated in the judgements, above, Mr. Das, Learned Counsel submitted that, since the concurrent lease is permissible in law and since the appellants had admitted their sub-tenancy under the Mitras and as such, they claimed their possession right being a derivative right from the Mitras, the eviction decree obtained by the Bando against the Mitras automatically bound the appellants and appellants were liable to be evicted as such, with the eviction of the Mitras. There was no requirement to make the appellants party defendants in the second suit nor any individual eviction suit was required to be filed by the Bando against the appellants for their respective eviction. To sum up on this point, the Learned Counsel for the decree holder submitted that, the compromise decree in the said second suit passed in favour of the Bando against the Mitras for eviction automatically bound the appellants and they were liable 21 to be evicted as such. In support, the Learned Counsel relied upon the following two decisions of the Hon’ble Supreme Court:- (i) In the matter of: Biswanath Poddar versus Archana Poddar and Anr.,