B S MANTOSH Vs. INDIA ELECTRIC WORKS LTD

JUDGEMENT

(1.) These five appeals arising out of the same judgment in three suits tried analogously have been heard together and this judgment will govern all of them. The facts out of which these appeals have arisen are not in dispute and may be briefly stated as follows.

(2.) Premises No. 25 South Road, Entally, Calcutta, belongs to one Nripendra Nath Deb who granted a lease of the same in favour of Messrs. F.S. Sohan and Co. along with a two-storied building and some out-houses. This Company constructed a very big shed with iron framework, iron joists and angles, brackets and corrugated iron roofing on pucca brick walls for the purpose of a factory. They, however, sold the leasehold interest to one P.S. Mantosh who thereafter became the lessee of the premises under the owner. On December 1, 1927, Mantosh took fresh lease of the premises for a term of ten years, and this was evidenced by a registered lease, dated March 16, 1928 (ex. 1). Before this, however, Mantosh had sublet the entire leasehold property together with the abovementioned factory shed to the India Electric Works Limited with effect from October 1, 1927, for a term of ten years, though no registered lease was executed. On August 13, 1937, Nripendra demanded vacant possession of the premises from P.S. Mantosh on the expiry of the term of the lease and asked him to remove the structure, i.e., the shed. It was not, however, removed, and the India Electric Works Limited took a lease of the premises from Nripendra with effect from December 1, 1937. This Company which will hereafter be referred to as the Company then called upon P.S. Mantosh to remove the shed from the premises. Certain correspondence passed between them regarding the matter and ultimately on March 8, 1938, Mantosh filed a suit, being Title Suit No. 12 of 1938 which was subsequently renumbered as No. 8 of 1939 in the additional Court of the Subordinate Judge, Alipore, against the Company and Nripendra praying for a declaration of his right to pull down and remove the shed and for a mandatory injunction on the Company to remove their machineries for three months or such period as the Court thought reasonable for the convenient and speedy removal of the shed and also for rent, taxes and damages. The suit was contested and during the pendency of the suit P.S. Mantosh died and his widow, son and daughter, who will hereafter be described as the Mantoshes, were substituted in his place. On May 17, 1940, the suit was compromised between the Mantoshes and the Company and a compromise decree was passed against the Company, the name of Nripendra having been expunged. According to the compromise decree the Company was to continue to use the shed for nine months from May, 1940, and was given the option to use it for a further period of two years thereafter on payment of Rs. 126 per month for such use and occupation and was to pay a sum of Rs. 8327-10as. as damages for past use and occupation including costs. The Company exercised the option and continued to use the shed up to January, 1943, and paid compensation therefor at the above rate except for the last two months. They had, however, been served with a notice to quit six months before the expiry of the period of two years and their prayer for extension of the period had been refused. As the Company was then engaged in productions for war they did not give up possession but requested the Government to requisiton the shed, and this was requisitioned with effect from February 2, 1944. The Mantoshes and the Government arrived at an agreement with regard to the compensation to be paid for the shed on March 2, 1945, and the amount of compensation was fixed at Rs. 350 per month which was to be paid to them by the Government who would realise the same from the Company. The Company protested against the amount fixed but paid at this rate to the Land Acquisition Collector up to November, 1945, and the Land Acquisition Collector paid the same to the Mantoshes. On November 21, 1945, the shed was derequisitioned and the Government made over formal possession of the same to the Company.

(3.) On January 16, 1946, the Mantoshes instituted Money Suit No. 1 of 1946 in the Second Court of the Additional Subordinate Judge, Alipore, against the Company praying that a decree should be passed against the Company for use and occupation of the shed for the months of December, 1942, and January, 1943, and Rs. 4,404 as demages for unlawful occupation thereof from February 1, 1943 to February 2, 1944, that being the date on which the shed was requisitioned, at the rate of Rs. 12 per diem. The total claim, including interest, was laid at Rs. 5,337. Then on November 22, 1948, they filed a second Money Suit No. 28 of 1948, against the Company praying for a decree for Rs. 13,164 as damages for wrongful use and occupation of the shed from November 21, 1945, the date of derequisition, to November 21, 1948, at the rate of Rs. 12 per diem. They also prayed for a decree at the same rate from the date of the suit to the date on which the Company would vacate the shed. The Dominion of India was subsequently joined as a Defendant in the suit, and the plaint was amended and a claim for Rs. 245 at the rate of Rs. 350 per month for the period from the 1st to the 21st November, 1945, was made against the Dominion of India. Alternatively a claim for damages at the rate of Rs. 350 per month from November 22, 1945, to November 21, 1948, and for further damages at that rate until possession of the shed was restored to the Mantoshes was made against both the Defendants on the footing that possession had been wrongfully given to the Company on derequisition of the same. In between these two suits the Company filed a suit on January 30, 1947, being Title Suit No. 4 of 1947, against the Mantoshes in which they prayed for a declaration that by operation of law the right, title and interest of the Mantoshes in the shed had been extinguished and had vested in the owner of the premises on the expiry of the term of the lease of P.S. Mantosh, and that thereafter the same had vested in the Company as lessee. This was also the main defence taken by the Company in the two money suits. The Company also claimed refund of Rs. 7,582-15as which they had paid to the Land Acquisition Collector as compensation for the shed during the period of requisition and which had been wrongly paid to the Mantoshes. In the alternative, they prayed that a decree might be passed asking the Mantoshes to remove the shed and give vacant possession of the land to the Company, and that in default, the shed might be demolished. A claim was also made for mesne profits or damages from February 2, 1944, until the date of the removal of the shed.