NIBARAN CHANDRA SHAHA Vs. LALIT MOHAN BRINDABAN SHAHA

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted on 26 August 1931, by the plaintiffs-respondents for a declaration that the leasehold interest in premises Nos. 23 and 23/1, Canal West Road, belongs to them. The suit was originally filed with defendant 1, Heera Lal Shaha, as the only party defendant, but later on, on 12 January 1934, Nibaran Chandra Shaha and Jaga Bandhu Shaha were, on their own application, added as defendants 2 and 3, respectively. Heeralal had after the institution of the suit mortgaged the leasehold interest to them treating the same to be his property. The learned Subordinate Judge has granted a decree to the plaintiffs-respondents with a condition that they must pay to Heeralal the sums of money which the latter had paid as security deposit and as rent and taxes. Defendants 2 and 3 have preferred this appeal. Their advocate, Mr. Gopali Chandra Das, raises the following points it support of the appeal: (1) that the suit is premature; (2) that the plaintiffs firm is an illegal association and so the suit is not maintainable; (3) that the said firm having, been dissolved before suit, the suit as constituted is not maintainable; (4) that Section 42,. Specific Relief Act, is a bar; (5) that the plaintiffs have no interest in the said leasehold, Heera Lal being the beneficial owner thereof, and (6) that at any rate his clients ought to be given a charge on the leasehold for such amount as was spent by Heera Lal for acquiring the same and for paying rent and taxes, and that if they are not entitled in law to have such a charge on the premises, the learned Subordinate Judge ought to have directed the plaintiffs to pay the said sum not to Heera Lal, but. to his clients.

(2.) We shall first deal with point No. 5 which involves the merits of the claim of the respective parties. The admitted facts are these: Premises Nos. 23 and 23/1 form a part of a Government Khas Mehals estate. The Collector of the 24-Parganas, who is in charge on behalf of the Secretary of State for India in Council, has been letting out the same for successive terms of years since 1890. The following are particulars of such leases: (i) First lease for a term of five years from 1890 to 1895. Name of the lessee - Shyam Chand, Shaha. (ii) Second lease for a term of five years from 1896 to 1900. Name of the lessee, Sital Chandra Shaha, father of defendant 1, Heeralal Shaha. (iii) Third lease for a term of thirty years fromi 1901 to 1930. Name of the lessee - the same Sitali Chandra Saha. Sital Chandra Shaha died during the currency of this lease, and Heera Lal's name was substituted in his father's place in the records of the Collector. (iv) Fourth lease for a term of thirty years from 1931 to 1960, Name of the lessee, Hiralal Shaha.

(3.) It is this leasehold interest which is the subject-matter of the suit. It is also an admitted fact that very valuable structures have been raised on the land after 1890 at a cost of about a lakh of rupees and the plaintiffs are in possession since 1890 by using a substantial part of the premises for their business, the remainder being in the possession of sub-tenants. (Here the Court discusses the leases and the evidence in the case on the question as to whether the beneficial interest in the leases belonged to the plaintiffs.) We have, accordingly, no difficulty in agreeing with the Subordinate Judge that the beneficial interest in the third lease was in the plaintiffs, and that Sital and thereafter Heera Lal were the plaintiffs benamidars. On the merits there, fore the plaintiffs have established their case, and if they are not otherwise debarred, they are entitled to have the declaration prayed for. We accordingly proceed to consider the other points raised by the appellants.