RAGHUVANSHI PRIVATE LTD Vs. RUPCHAND GUPTA

JUDGEMENT

(1.) THIS appeal arises out of a suit instituted by a sub-lessee of a vacant plot of land against the superior landlord and the lessee for a declaration that the sub-lessee is still a tenant of the land under the lessee and is not liable to be ejected under a decree for ejectment obtained by the landlord against the lessee and for an injunction restraining the landlord from evicting the sub-lessee in execution of the decree. The landlord is Raghuvanshi (Private) Ltd. , the lessee is Land and Bricks Limited and the sub-lessee is Rupchand Gupta carrying on business under the name and style of Messrs. Hind Airways. Raghuvanshi Private Ltd. was incorporated on august 9, 1949 and Land and Bricks Ltd. was incorporated on August 12, 1949. The object of both the companies is to acquire, manage and deal in lands and buildings and real properties. Until February 4, 1951 Raghuvanshi Private Ltd. had six directors namely, Karsandas Khimji Popat, Ratilal Khimji Popat, Girdhardas Bhimji Mansata, Vithaldas Bhimji Mansata, Janaklal Balkisen Joshi, and Balmukund Kshetry. Since February 4, 1951 Janaklal Balkisen Joshi and Balmukund Kshetry ceased to be directors of Raghuvanshi Private Ltd. and thereafter until November 30, 1954 Karsandas Khimji Popat, Ratilal Khimji Popat, girdhardas Bhimji Mansata and Vithaldas Bhimji Mansata continued to be its directors. On or about November 30, 1954 Karsandas Khimji Popat ceased to be the director of Raghuvanshi Private Ltd. and thereafter Ratilal Khimji Popat, Girdhardas Bhimji mansata and Vithaldas Bhimji Mansata continued to be its directors. At all material times, Karsandas Khimji Popat, Ratilal Khimji Popat, Girdhardas bhimji Mansata and Vithaldas Bhimji Mansata were the directors of Land and Bricks Ltd. Also at all material times since February 4, 1951 the Popat and the Mansata groups of directors owned and/or controlled the entirety of the share holding in both the companies. By mutual arrangement between the directors, Karsandas Khimji Popat used to look after the affairs of Land and Bricks Ltd. and Vithaldas Bhimji Mansata used to look after the affairs of Raghuvanshi Private Ltd. At the relevant time both the companies had their registered offices at the premises No. 30, Chittaranjan avenue, Calcutta. They used the same telephone, had the same staff and also employed a common pleader for drafting the resolutions of the minutes of the meetings of the directors of both the companies. On January 21, 1950 Raghuvanshi Private Ltd. obtained from the Official Trustee, West Bengal, a building lease of about 52 cottahs of vacant land in premises Nos. 17/1 and 17/1/1, Kashinath Mullick Lane and 6, Ramlochan Mullick Street in the town of Calcutta for a period of 75 years commencing from January 21, 1950. The lease required the construction by Raghuvanshi Private Ltd. of a three or four storied building on the demised land within 10 years and provided that the official Trustee would deliver vacant possession to Raghuvanshi Private Ltd. of 10 cottahs of land on the execution of the deed, 27 cottahs within three months, five cottahs within 9 months and the balance 10 cottahs within three years. Thereafter Raghuvanshi Private Ltd. leased to Land and Bricks Ltd. as from September 1, 1950 about 101/2 cottahs of vacant land out of the land demised by the Official Trustee upon the terms and conditions recorded in the letters dated August 15 and August 17, 1950, passed by and between Raghuvanshi Private Ltd. and Land and Bricks Ltd. As Raghuvanshi Private Ltd. had then obtained vacant possession of 8 Cottah9 of land only from the Official Trustee, Raghuvanshi Private Ltd. delivered to Land and Bricks Ltd. only 8 cottahs of land on or about September 1, 1950. Subsequently towards the end of September, 1950 the Official Trustee gave to Raghuvanshi Private Ltd. vacant possession of about 21/2 cottahs of vacant land and thereupon Raghuvanshi Private Ltd. in its turn delivered possession of the aforesaid 21/2 cottahs of land to Land and Bricks Ltd. Simultaneously the terms and conditions of the lease by Raghuvanshi Private Ltd. to Land and Bricks Ltd. were recorded afresh in the letters dated September 28 and September 29, 1950 passed by and between Raghuvanshi Private Ltd. and Land and Bricks Ltd. By these letters the tenancy in favour of Land and Bricks Ltd. was declared to be a monthly tenancy commencing from October 1, 1950. By the terms of the lease Land and Bricks Ltd. undertook (a) not to erect any structure either permanent or temporary without the previous consent in writing of the raghuvanshi Private Ltd. (b) not to assign or sub-let the land without the previous consent in writing of Raghuvanshi private Ltd. The rent payable by Land and Bricks Ltd. was Rs. 420/-per month. Land and Bricks Ltd. in its turn sub-let the aforesaid 10 1/2 cottahs of land to plaintiff Rupchand Gupta in his business name of Hind Airways upon the terms and conditions recorded in the letters dated August 19 and September 5, 1950 passed between Hind Airways and Land and Bricks Ltd. By the terms of the sub-lease the plaintiff undertook (a) to use the open land for garaging motor vehicles only and not to construct anything on the land, (b) not to sublet the land to anybody. The sub-lease was a monthly tenancy commencing from September 1, 1950 and the rent payable by the plaintiff was fixed at Rs. 95/- per cottahs per month. As Land and Bricks Ltd. could not deliver to the plaintiff vacant possession of about 21/2 cottahs of land until the end of September, 1950, Land and Bricks Ltd. charged the plaintiff rent for September 1950 in respect of 8 cottahs of land only.

(2.) IT is to be noticed that Land and Bricks Ltd. deliberately violated its undertaking to Raghuvanshi Private Ltd. not to sub-let any portion of the land and similarly the plaintiff also deliberately violated his similar undertaking to Land and Bricks Ltd.

(3.) THE plaintiff also deliberately violated his undertaking to Land and Bricks Ltd. not to construct anything on the land. Sometime in 1951, the plaintiff in breach of its undertaking constructed on the land a pucca structure with corrugated iron roof. On coming to know of the construction, Land and Bricks Ltd. by its letter dated July 10, 1951 to the plaintiff emphatically protested against the construction of the unauthorised structure. The protest was followed by proceedings for demolition of the structure instituted by the Corporation of Calcutta. These proceedings were subsequently dismissed. Land and Bricks Ltd. made a further protest with regard to the construction of the unauthorised structure by its letter dated January 9, 1953 to the plaintiff. This protest was followed by a second proceeding instituted by the Corporation of Calcutta against the plaintiff for demolition of the unauthorised structure. This proceeding was also dismissed. The value of the structure is said to exceed Rs. 50,000 / -.