NURUL HUDA Vs. HIRA BASU

JUDGEMENT

(1.) This appeal arises out of judgment and decree passed by the learned Judge, 4th Bench, City Civil Court, Calcutta in Title Suit No. 1412 of 1978. By the aforesaid judgment a decree has been passed for eviction of all the defendants impleaded in the said Title Suit. The defendants Nos. 3 to 14 have preferred the instant appeal impleading the plaintiff as respondent No. 1 and defendants Nos. 1 and 2 as pro forma respondents Nos. 2 and 3. The said Title Suit was instituted by the plaintiff respondent No. 1 for eviction of the defendants from the disputed premises being the back portion of 83, Rafi Ahmed Kidwai Road, Calcutta containing 18 rooms more fully described at schedule to the plaint. The case of the plaintiff appellant No. 1 is inter alia that one Ranjit Kumar Bose since deceased was the owner of the entire premises No. 83, Rafi Ahmed Kidwai Road, Calcutta and the said Ranjit Kumar Bose died on 30th June, 1968 after executing a Will whereby he bequeathed the entire property to his wife, viz., the plaintiff and the said plaintiff was also appointed as sole executrix by the said Will.

(2.) The plaintiff applied for probate of the said Will in this Court and the said Will was duly probated by this Court and the plaintiff was appointed as sole executrix of the said will to the estate of deceased Ranjit Kumar Basu. By an indenture of lease dated 12th Aug., 1959 entered into between the said Ranjit Kumar Basu and one Haji Ansarullah, the said Ranjit Kumar Basu had demised the back portion of the said premises No. 83, Rafi Ahmed Kidwai Road, as described in the schedule to the plaint to the said Haji Ansarullah for a period of 21 years commencing from 1st Sept., 1959 at a rental of Rs. 211/- per month payable according to English Calendar on the terms and conditions contained in the said indenture of lease dated 12th August, 1959. A copy of the said lease was annexed to the plaint being Annexure 'A'. The plaintiff's further case is after the death of Haji Ansarullah, the defendants Nos. 1 and 2 became his heirs and legal representatives and as such became joint lessees under the plaintiff on the terms and conditions contained in the said indenture of lease. The lessees had committed various breaches of covenants and the plaintiff has set out instances of such breach of covenants in various clauses under paragraph 6 of the plaint. The plaintiff has contended that in view of the said breaches committed by the said defendants Nos. 1 and 2 viz., heirs of Hazi Ansarullah the said lease stood forfeited and the plaintiff got the right of re-entry to the premises and to recover the same from the possession of the defendants. It is also case of the plaintiff that the plaintiff determined the said lease by a registered notice sent through her Advocate calling upon the said defendants Nos. 1 and 2 to quit, vacate and deliver up the vacant and peaceful possession of the said premises on expiry of last date of Sept., 1977. A copy of the said notice dated 10th August, 1977 has been annexed to the plaint being Annexure 'B'. The plaintiff has also contended that in spite of such termination of lease, the defendants Nos. 1 and 2 have failed and neglected to deliver the vacant possession of the said premises and they are continuing as trespassers in the said premises. It has also been stated by the plaintiff that defendants Nos. 3 to 14 are the sub-tenants and they have been impleaded in the suit in order to avoid any future complicity of the proceedings and to avoid further litigation. It appears that the plaint was subsequently amended by incorporating para 8A to the plaint wherein it has been stated that the said registered lease dated 12th August, 1959 made between lessor Ranjit Kumar Basu since deceased and the said lessee Haji Ansarulla for a period of 21 years commencing from 1st day of Sept., 1959 has been determined and has come to an end by efflux of time on the first day of Sept., 1980 and as such neither the legal heirs and representatives of the deceased lessee Haji Ansarullah nor anybody holding under the said Haji Ansarullah has got any right, title, interest or to use, hold and to occupy the suit premises. It appears that four sets of written statements have been filed. The defendant No. 1 Amina alias Anwara Khatoon has filed a written statement inter alia denying the material allegations made in the plaint and it has been contended by the said Anwara Khatoon in her written statement that there is no rent actually or legally due from the defendants and the claim for arrears rent since July, 1964 is illegal and fraudulent. It is also contended by the said defendant No. 1 that the plaintiff even during the continuance of the said indenture of lease illegally trespassed up to demised premises and on such re-entry collected monthly rents from the defendant tenant Md. Abbas at the rate of Rs. 30/- per month since 1974. The said defendant No. 1 has also contended that the plaintiff had collected illegally Rs. 362/- each month at the rate of Rs. 22/- from fourteen tenants of the defendant lessee. In view of such realisation of rent by the plaintiff, the lease agreement was no longer pending and enforceable. The defendant No. 1 has also contended that the plaintiff by her own illegal action has forfeited her right of re-entry and/or to determine the said lease. The defendant No. 2 Noorjahan Begum has also filed a written statement and has contended that on the death of said Haji Ansarulla the defendant No. 1 has inherited the tenancy right. It has also been contended that the defendant No. 2 did not commit any breach of any of the covenants and as such the question of forfeiture of lease does not arise. The said defendant has also denied the service of any notice and determination of the lease by the plaintiff. A separate written statement has also been filed by the defendant No. 5 Abdul Aziz and the said defendant No. 5 has stated that he is neither the tenant under the plaintiff nor under the defendant No. 1. It has been further stated by defendant No. 5 that his wife is the tenant under the defendant No. 1 and the said wife has been paying rent to the defendant No. 1 regularly and she possesses the rent receipts for such payment. Defendant No. 5 has also denied that there is any relationship of landlord and tenant between him and the plaintiff. A joint written statement has been filed on behalf of the defendants Nos. 3, 4, 6 to 14. The said defendants have stated in their written statement that they are tenants under defendant No. 1 Amina Khatoon and they have been occupying their respective rooms as tenants of Amina Khatoon on payment of rent to the said defendant No. 1 against receipts granted therefor. The said defendants have also denied the existence of any relationship of the landlord and tenant between plaintiff and the said defendants and they have categorically stated in their written statement that they are the tenants under the defendant No. 1. On the pleadings of the parties several issues were framed by the learned Judge including issues Nos. 2 and 4 to the following effect :- Issue No. 2 : Did Haji Ansarullah commit breaches of the covenant in the lease deed dated 12-8-59 as alleged? Is the plaintiff entitled re-entry to the said premises and recover possession from the defendants? Issue No. 4 : Has the registered deed of lease dt. 12-8-59 made between Ranjit Kumar Basu and Haji Ansaruila for a period of twenty one years commencing from 1-9-59 in respect of the suit premises been determined by efflux of time? If so, is the plaintiff entitled to get a decree for recovery of khas possession of the suit premises?" It may be noted in this connection that in the prayer made by the plaintiff in the plaint no decree for eviction was prayed for against the other defendants excepting the defendants Nos. 1 and 2 although the plaint was amended incorporating para 8A, the prayer was not amended. It appears from the exhibits filed in the said suit that the plaintiff had realised rents from 7 tenants in respect of respective rooms under occupation of such tenants for about four months from April, 1964 to June, 1964. On behalf of the plaintiff, the daughter of the plaintiff got herself examined and the said witness being P. W. 1 has specifically stated in her deposition that the defendants Nos. 1 and 2 being heirs and legal representative of the original lessee Haji Ansarullah failed and neglected to pay rent in respect of the said premises and on their request, rents were realised by the plaintiff for few months from some of the sub-tenants. The plaintiff herself also deposed in the suit and she has also stated in her deposition that such rents had been realised from some of the sub-tenants for few months at the instance of the defendants Nos. 1 and 2 but plaintiff had never accepted the said sub-tenants as her direct tenants. It may be noted in this connection that the defendants Nos. 3 to 14 viz. sub-tenants declined to give any evidence in the suit. The learned Judge after considering respective cases of the parties and evidences adduced in the case has inter alia come to the findings that there is no evidence of any transfer or assignment of lease adduced on behalf of the plaintiff but there is some evidence of sub-letting. The learned Judge has further observed that there is contention that some of the sub-tenants had been inducted even before the time of the Haji Ansarullah and P. Ws. 1 and 2 have also deposed to that effect. But the learned Judge has not come to any finding as to whether or not any sub-tenancy was created prior to execution of the indenture of the lease in favour of Haji Ansarullah by the lessor Ranjit Kumar Basu. The learned Judge has come to the finding that since by efflux of time the lease has come to an end, the defendants Nos. 1 and 2 and also the sub-lessees viz. the defendants Nos. 3 to 14 are bound by such determination of lease by efflux of time. In that view of the matter, the learned Judge has decreed the suit on contest with costs against the defendants and it has been directed by the learned Judge that the defendants shall vacate the suit premises within one month from the date of the judgment, failing which the plaintiff would get khas possession through Court by executing the decree.

(3.) As aforesaid, the defendants Nos. 1 and 2 have not preferred any appeal against the said judgment and decree passed by the learned Judge in the aforesaid title suit but the defendants Nos. 3 to 14 have preferred the instant appeal. Mr. Dutt the learned Counsel appearing for the said defendants Nos. 3 to 14 viz. the appellants in the instant appeal has contended that the defendants Nos. 3 to 14 do not intend to contend that the decree for eviction passed against the defendant Nos. 1 and 2 are illegal or not binding on the said defendants. He has, however, contended that in the facts and circumstances of the case no decree should have been passed by the learned Judge against the present appellants viz., the defendants Nos. 3 to 14. Mr. Dutt has contended that in the prayer made by the plaintiff in the plaint, no decree for eviction has been prayed for against the defendants Nos. 3 to 14. He has contended although the plaint was subsequently amended by incorporating para 8A in the plaint, the plaintiff did not amend the prayer in the plaint seeking for a decree of eviction against defendants Nos. 3 to 14. Mr. Dutt has conteded that in the aforesaid circumstances, the defendants Nos. 3 to 14 did not intend to oppose the prayer for eviction of the defendants Nos. 1 and 2 and hence the said defendants Nos. 3 to 14 chose not to give any evidence in the suit. Mr. Dutt has submitted that it is an admitted case of the parties that the plaintiff had realised rents from 7 sub-tenants who are some of the defendants in the instant suit and the plaintiff has granted receipts for such realisation of rent from the said sub-tenants. He has contended that by such acceptance of rent, the plaintiff has not only approved the continuance of the said sub-tenants in the demised premises but the plaintiff has also accepted them as direct tenants under the plaintiff. Mr. Dutt has contended that if a landlord recognises the sub-tenants and accepts rents from sub-tenants directly, then by such payment and acceptance of the rent between the parties a relationship of landlord and tenant comes into operation and since the landlord has accepted the said defendants Nos. 3 to 14 as direct tenants and has not also prayed for a decree of eviction against them, the learned Judge was wrong in passing a decree for eviction against defendants Nos. 3 to 14 along with the defendants Nos. 1 and 2. Mr. Dutt has submitted that the defendants Nos. 3 to 14 viz. the appellants in the instant appeal have no objection against the decree for eviction passed against defendants Nos. 1 and 2 but the decree passed against defendants Nos. 3 to 14 should be set aside. He submits that the decree for eviction should be confined only against the defendant Nos. 1 and 2. Mr. Roy Chowdhury, the learned Counsel appearing for the plaintiff respondent No. 1 has, however, contended that in the written statement filed on behalf of the defendants Nos.3 to 14 it has been specifically contended that the said defendants Nos.3 to 14 are tenants under the said lessees viz. the heirs of Haji Ansarullah and the said defendants have been paying rents to their landlords viz. the said lessees. In view of such positive statement made in the written statement, Mr. Roy Chowdhury has contended that it is not permissible for the defendants Nos. 3 to 14 to contend that they have become direct tenants under the plaintiff by payment of rent and as such no decree for eviction can be passed against the said defendants and the decree for eviction should be modified by confining the decree for eviction only against defendants Nos. 1 and 2. Mr. Roy Chowdhury has also contended that although the defendant No. 1 has contended in her written statement that the plaintiff has trespassed into the demised premises and has collected rents from her tenants directly, the said fact has not been established by the said defendants. Mr. Roy Chowdhury has contended that the plaintiff and her daughter have deposed categorically that it was only at the instance of the defendants Nos. 1 and 2, the plaintiff had realised rents from some of the sub-tenants for few months and in no case, the amount realised from such sub-tenants exceeded the amount payable for any particular month by the said lessees to the plaintiff under the said indenture of lease. Mr. Roy Chowdhury has further contended that the defendants Nos. 3 to 14 declined to give any evidence in the suit and in view of specific statement made in their written statement that they are the tenants under the lessee and had been paying rents to the said lessee, the case of the plaintiff should be accepted and the evidence led on behalf of the plaintiff should also be accepted. Mr. Roy Chowdhury has also contended that in the plaint, specific pleading has been made that the defendants Nos. 3 to 14 are sub-tenants and they are in occupation of the demised premises under the lessee and the plaintiff is entitled to get a decree for eviction against all the defendants including the said sub-tenants because of the determination of lease by efflux of time. Mr. Roy Chowdhury has contended that in view of such specific pleadings and incorporation of para 8A by way of amendment of plaint, the plaintiff is entitled to get a decree for eviction against all the defendants. He has also submitted that Issue No. 3 has been specifically framed by the learned Judge for deciding as to whether or not the plaintiff is entitled to get a decree for eviction of the defendants including defendants Nos. 3 to 14. Mr. Roy Chowdhury has submitted that simply because in the prayer of the plaint specific prayer has not been made for passing a decree for eviction against the defendants Nos. 3 to 14, it cannot be contended that the Court cannot pass such decree for eviction against the defendants Nos. 3 to 14. In this connection, Mr. Roy Chowdhury has referred to the provisions of O.7 R.1 and O.7 R.7 of the Civil P.C. Mr. Roy Chowdhury has contended that the particulars required to be pleaded in the plaint under R.1 of O.7 have been pleaded in the instant plaint and on the face of such pleading, the Court is quite entitled to pass a decree for eviction against all the defendants. Referring to R.7 of O.7, Mr. Roy Chowdhury has contended that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. Mr. Roy Chowdhury has submitted that it has been specifically pleaded in the plaint that the defendants being sub-tenants in the premises in question have been impleaded in order to avoid any multiplicity of proceedings in future. The plaintiff has also categorically stated that the plaintiff is entitled to get recovery of possession of the demised premises from the said defendants. In the aforesaid circumstances, the learned Judge is quite justified in passing a decree for eviction against all the defendants and no exception can be taken by the present appellants against such decree for eviction simply on the score that the plaintiff has not incorporated any specific prayer for eviction against the defendants Nos. 3 to 14 in the plaint. Mr. Roy Chowdhury has also contended that by the said sub-lease in favour of defendants Nos. 3 to 14 there has been an assignment of the demised premises by the lessee in favour of the said sub-lessees although there is no privity of contract between the lessor and the said sub-lessees. In such circumstances the said sub-lessees had a liability to pay rent to the landlord for the demised premises at least to the extent in their occupation.