NATESAN Vs. KRISHNANKUTTY MOOTHAN

JUDGEMENT

(1.) Pursuant to an order of eviction of the second respondent, made under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949, which may be referred to hereafter as the Act, the first respondent applied to the Munsiff at Palghat, to execute the order and put him in possession, when, the petitioner herein, offered resistance which, after investigation, was ordered by Ext. P. 1 to be removed. This petition is to quash Ext. P. 1 and has been filed under Articles 226 and 227 of the Constitution. The petitioner's case is, that as the President of a Sanghom and as representing it, he has been in possession of the premises as the sublessee of the second respondent, and that the order for eviction made without him on the array of parties is not binding on him. The reasoning on which the Munsiff passed Ext. P. 1 is not sustainable, but on that ground it cannot be set aside, under either Art.226 or Art.227 of the Constitution. The learned counsel for the first respondent supported Ext. P. 1, on the terms of S.12C of the Act, which provides that:

(2.) The learned counsel for the petitioner then challenged the validity of S.12C, as infringing the petitioner's fundamental right to hold property under Art.19(1)(f) of the Constitution. His argument was, that he had a right to hold or enjoy the leasehold, which cannot be affected by a proceeding to which he was not a party, and in which, his defence was not heard.

(3.) It is necessary to determine, whether the petitioner has a fundamental right at all under Art.19(1)(f), granting that he was a sublessee under the second respondent. It is clear law, that a sublease is determined when the period of the lease expires or the lease is determined by notice to quit. Similarly, where forfeiture is incurred by the lessee, except where it has been procured in fraud of the sublessee or relief is granted against forefeiture, the sublease also comes to an end; in other words, the interest of the sublessee subsists only so long as that of the lessee lasts. There may be a distinction in the case of a voluntary surrender by the lessee to the prejudice of the sublessee. As against the landlord, possession is with the lessee and the latter may allow a sublessee or a licensee or a servant of his, to occupy the premises; but none of them can set up a right as against the landlord in spite of the lessee. It was held in Sheikh Yusuf v. Jyotish Chandra Banerjee (AIR 1932 Calcutta 241) that in execution of a decree obtained by a landlord against his lessee, a sublessee, though no party to the decree is liable to be evicted. The question was considered both on principle and authority by B. K. Mukherjea J., as he then was, in Sailendra Natha Bhattacharjee v. Bijan Lal Chakravarty (AIR 1945 Calcutta 283). After laying down the law, as stated above, that when the period of a lease comes to an end or the lease is determined by a proper notice to quit, or the lease is forfeited, the sublease comes to an end, the question whether a decree obtained by the landlord against his lessee, will be binding on the sublessee was considered and answered in the affirmative. The principle was stated thus :