PRADIP KUMAR SAHA Vs. INDIAN HOTEL

JUDGEMENT

(1.) This Appeal is directed against an order dated 27th July, 1998 passed by a learned single Judge of this Court whereby an application made by the plaintiffs/appellants for originating Summons in Suit No. C.S. 151 of 1997 was dismissed by the learned single Judge in holding that the Suit was not maintainable as far as originating summons under Chapter XIII of the Original Side Rules of this Court was concerned but by giving liberty to the plaintiffs/Appellants to apply before the appropriate Forum for appropriate order, if as advised, including the filing of the Civil Suit in an appropriate Civil Court. The brief facts leading to the filing of this Appeal are that the plaintiffs/appellants purchased the property in question by several conveyances, all dated 18th November, 1988 from the erstwhile owner, namely Smt. Lila Bati Dutta in 1937 had inherited this property and since then, until its sale to the appellant/plaintiffs had remained its sole and absolute owner. Earlier, on a point of time, by an Indenture of lease dated 26th April 1919 the Predecessors-in-interest of Smt. Lila Bati Dutta had granted a lease in favour of one Chimanlal Ganeriwalla and one Jiban Krishna Mitra for a period of 81 years. This lease was to operate till 25th April 2000. Chimanlal Ganeriwalla in 1936 however had assigned his interests in the aforesaid lease in favour of Jiban Krishna Mitra with the result that Jiban Krishna Mitra became the sale lessee of the property under the aforesaid lease executed on 26th April, 1919. In or about 1985 Jiban Krishna Mitra died and the leasehold interest in the property in question devolved upon Gopal Krishna Mitra and Sachindra Narayan Dutta. It is the case of the appellants-plaintiffs that these two lessees by a deed of surrender executed on 1st January, 1988 surrendered their leasehold rights in favour of the plaintiff-appellants.

(2.) It is interestingly also the case of the appellants themselves that during the tenure of the aforesid lease the lessees in accordance with the power conferred upon them under the terms of the lease had let out a portion of the ground floor of the property in question to the prodecessors-in-interest of the defendants and it is by virtue of the aforesaid letting out that the defendants are presently in occupaton of the said portion of the ground floor of the property.

(3.) The plaintiffs/appellants claim that because they had purchased the property from the erstwhile owners in the year 1988 (18th November 1988) and because the lessees had surrendered the leasehold rights in respect of the property vide the aforesaid dated 1st January, 1988, the plaintiffs are entitled to recover the possession of the property from the defendant and that the defendants are liable to hand over such possession of the property to the plaintiffs. Plaintiffs accordingly filed the Suit for originating Summons with the prayer that the learned trial Court may determines the questions formulated by the plaintiff/appellants in para-13 of the application. Those questions are reproduced as hereunder :