BISWABANI PRIVATE LIMITED Vs. SANTOSH KUMAR DUTTA

JUDGEMENT

(1.) Kalpana Theatre with its furnishings and fixtures situated at 61, Chintamoni Dey Road, Howrah, belonging to respondents 1 and 2 is the subject-matter of dispute between its landlords and tenant awaiting resolution for the last two decades. Under a registered lease deed dated 11th Sept. 1948, respondent 3 Kanti Bhusan Bose, took this Theatre on lease for a period of 5 years with effect from 1st September 1948. Respondent 3 is the Managing Director of the appellant Biswabani Pvt. Ltd. ('company for short). It appears that during the period of lease respondents 1 and 2, the owners of the Theatre, accepted the appellant company as their tenant and in token of it accepted rent from the company at the rate of Rs.2,000 p.m. On the expiry of the period of 5 years disputes arose between the lessors and the lessee whereupon respondents 1 and 2 lessors commenced an action in ejectment against the company on 5th October 1953 in the Court of the First Subordinate Judge, Howrah. In August 1953 appellant company as lessee filed an application before the Rent Controller under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, for fixation of standard rent of the demised premises. Ultimately the parties arrived at a compromise and the consent terms were filed in T. S. No. 68 of 1953 instituted by the lessors respondents 1 and 2 for eviction of the company and the Court was invited to pass a decree in terms thereof. The consent decree, inter alia, provided that the company would be the tenant of Kalpana Theatre on a monthly rent of Rs.1,000 from 1st March, 1955 for a period of 5 years and that the third respondent Kanti Bhusan Bose had to offer security by deposit of G. F. Notes on the face value of Rupees 20,000 with the lessors. The lease was to be for a period of 5 years commencing from 1st March, 1955. An indenture of lease was to be drawn up and executed by both the parties in terms of the consent decree. The company was given permission to sublet the premises with prior approval of the lessors. There is a furious controversy about one of the terms of the consent decree which reads as under :

(2.) The suit was, inter alia, contested on a contention that as the consent decree provided for a fresh lease of five years such a lease can only be valid if it is registered and as the consent decree or the document incorporating the terms of compromise was not registered, the company continued in possession under a void lease and, therefore, on the expiry of the period of five years the company was a trespasser and respondents 1 and 2 were entitled to take over possession from such a trespasser. It was also contended that on the expiry of the period of five years on 29th February 1960 the company handed over peaceful and vacant possession to respondents 1 and 2 in terms of the consent decree.

(3.) The trial court held that as the consent decree provided for a lease for a period of five years in the absence of registration the lease for a period of five years did not come into existence but if the tenant entered into possession under an invalid lease and the landlord accepted rent a tenancy from month to month came into existence between the lessors and the lessee and that such a lessee cannot be evicted except after terminating the tenancy by a valid notice to quit and in the absence of such determination the lessee would be a lessee from month to month and can protect its possession. In accordance with this finding the trial court decreed the appellant-plaintiff's suit. Respondents 1 and 2 appealed to the District Court at Howrah. The learned Additional District Judge held that the lease being void, yet the lessors would not be entitled to disturb the possession of the tenant for a period of 5 years under the provisions of S. 53-A of the Transfer of Property Act but after the expiry of the period of five years the appellant became a rank trespasser and the respondents 1 and 2 were entitled to take possession of the property. Accordingly the appeal was allowed and the company's suit was dismissed. The appellant company preferred second appeal to the High Court. The High Court broadly agreed with the findings of the learned Add. Dist. Judge and dismissed the appeal. The High Court granted a certificate, unfortunately very vague, without specifying whether the certificate was under Article 133 (a), (b) or (c) as it stood at the relevant time.