RELIANCE JUTE MILLS CO LTD Vs. GHOOMRI TELENI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent against the decision of P.N. Mookerjee, J. dismissing an appeal arising out of an execution case. The decree under execution was obtained as early as on April 29, 1939, by the present Appellant for ejectment from C.S. plots Nos. 3232 and 3233 of Mouza Bhatpara, against Nirmal Kumar Lahiri and Duklii Shaw. During the pendency of the execution proceedings Dukhi died and the present Respondents Faudi Shaw and Nanda Shaw were substituted in his place. After the execution case was taken up after the stay order passed under the West Bengal Premises Non-Agricultural Tenancy Act, 1940, had been vacated, an objection under Section 47 of the Code of Civil Procedure was filed by Dukhi and Faudi to the execution of the decree as against them in respect of C.S. plot No. 3232 of which they were in possession as sub-tenants under the direct tenant Nirmal Lahiri, on the ground that they were not liable to ejectment therefrom in view of the proceedings under the Non-Agricultural Tenancy Act of 1949. The learned Munsif upheld the objection and was of opinion that the whole decree had become non-executable and dismissed the execution case as not maintainable in law. On appeal the learned Additional District Judge was of opinion that execution could proceed as regards C.S. plot No. 3233 of which Nirmal was in possession, he not having objected at all to the execution, but maintained the learned Munsif's decision as regards C.S. plot No. 3232.

(2.) Both the Courts held that under Section 22 of the Non-Agricultural Tenancy Act, read with Section 7, Sub-section (2) of the same Act, the under-tenants Dukhi and Faudi were not liable to ejectment. The learned Additional District Judge further held that there was in law a surrender by the tenant Nirmal and so the undertenants' right would not be affected and they would be entitled to claim all the rights which the tenant could have claimed under Section 7, Sub-section (2).

(3.) P.N. Mookerjee, J. has held that the Respondents, the undertenants, were not entitled to any protection under Section 22 of the Non-Agricultural Tenancy Act and also held that there was no justification for holding that there was surrender by the tenant or any collusion on the tenant's part. He was of opinion however that the conduct of the tenant Nirmal supported an inference of waiver and that to permit such waiver would be in effect allowing the tenant to derogate from his grant. He further held that in law the under-tenants had the right to resist eviction on the ground that their immediate landlord the tenant, was not liable to ejectment in view of the protection afforded to him by the Non-Agricultural Tenancy Act.