INDIA ELECTRIC WORKS LTD Vs. B S MANTOSH

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. Sehan and Co. along with a two storied building and some outhouses. This Company constructed a very big shed with iron framework; iron joists and angles, brackets and corrugated iron rooting 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 1-12-1927, Mantosh took fresh lease of the premises for a term of ten years, and this was evidenced by a registered lease, dated 16-3-1928 (Ex. 1). Before this, however, Mantosh had sublet the entire leasehold property together with the above mentioned factory shed to the India Electric Works Ltd. with effect from 1-10-1927, for a term of ten years, though no registered lease was executed. On 13-8-1937, 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 Ltd. took a lease of the premises from Nripendra with effect from 1-12-1937. 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 8-3-1938, Mantosh filed a suit, being Title Suit No. 12 of 1938 which was subsequently renumbered as No. a of 1939 in the Additional Court of the Subordinate Judge, Alipur, against the Company and Nripendra praying for a declaration of his right to pull dowa 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 convenience 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 17-5-1940, 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. 125/- per month for such use and occupation and was to pay a sum of Rs. 8,327/10, as damages for past use and occupation including costs. The Company exercised the option and continued to use the shed upto January, 1943, and paid compensation there for 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 UD possession hut requested' the Government to requisition the shed and this was requisitioned with effect from the 2-2-1944. The Mantoshes and the Government arrived at an agreement with regard to the compensation to be paid for the shed on 2-3-1945, 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 upto November, 1945, and the Land Acquisition Collector paid the same to the Mantoshes. On the 21-11-1945, the shed was derequisitioned and the Government made over formal possession of the same to the Company.

(3.) On 16-1-1946, the Mantoshes instituted Money Suit Ho. 1 of 1946 in the Second Court of the Additional Subordinate Judge, Alipur 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 damages for unlawful occupation thereof from 1-2-1943, to 3-2-1944, 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 22-11-1948, 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 21-11-1945, the date of de-requisition, to 21-11-1948, 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 22-11-1945, to 21-11-1948, 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 de-requisition of the same. In between these two suits the Company filed a suit on 30-1-1947, 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. 7,582/15 as, 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 passedasking 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 2-2-1944, until the date of the removal of the shed.