Judgment:
1. This appeal is at the instance of a third party in a proceeding for eviction of a tenant whose tenancy is governed by the provisions of the Transfer of Property Act and is directed against the judgment and decree dated 4th August, 2010, passed by a learned Single Judge of this Court by which His Lordship decreed the suit for eviction ex parte against the tenant.
2. Being dissatisfied, the appellant has come up with this appeal with a prayer for permission to file such appeal as a third party to the decree. It appears from record that the suit out of which the present appeal has been filed was instituted by the respondent Nos.1 to 3 against the respondent No.4 alleging forfeiture of the lease by treating the respondent No.4 as a tenant governed by the provisions of the Transfer of Property Act. None appeared on behalf of the respondent No.4 and the learned Single Judge on the basis of ex parte evidence was satisfied that the plaintiffs proved the ground alleged in the plaint and consequently, passed a decree for eviction and recovery of arrears of rent.
3. As indicated earlier, the respondent No.4, the tenant, has not preferred any appeal but this appeal has been preferred by the appellant before us alleging that it is a sub-tenant under the respondent No.4 and in view of collusion between the plaintiff/respondent Nos.1 to 3 in one hand and the respondent No.4/defendant on the other, its right will not be affected in view of the last part of Section 115 of the Transfer of Property Act.
4. In support of the contention that the appellant is a sub-tenant, Mr. Mitra, the learned senior advocate appearing on behalf of the appellant, has drawn our attention to an agreement between the appellant and the respondent No.4 wherein the appellant has been described as a contractor and the agreement has been described as one for management, maintenance and keeping clean, operative and in good order the common parts of the entire subject matter of tenancy held by the respondent No.4 including the right conferred upon the appellant to provide Durwans and Sweepers and other staff and also making minor running repairs and inner renovations of the common part. In the agreement, it is further provided that for the aforesaid services the appellant is required to enter into separate agreement with all co-lessees for the management and maintenance and for supply of electricity to the co-lessees in the property.
5. After going through the said agreement, we find, that was merely an agreement for maintenance and looking after the common part of the building held under the lease of the respondent No.4 and thus, by no stretch of imagination, the appellant can be described as a sub-lessee under the respondent No.4. It is admitted that no deed of lease has been executed between the defendant No.4 and the appellant.
6. We, therefore, find that the plea of Mr. Mitra, the learned senior counsel appearing for the appellant, that his client is a sub-lessee is not tenable.
7. Mr. Mitra, in this connection placed strong reliance upon the decision of the Supreme Court in the case of Qudrat Ullah vs. Municipal Board, Bareilly, reported in AIR 1974 SC Page 396 and contended that in order to construe an agreement, the nomenclature of the same is not the decisive one, but the intention of the parties is the primary consideration.
8. In the aforesaid case the Supreme Court was considering the effect of Exhibit 1 as to whether the same was a lease or only a licence or a composite one. In the said Exhibit 1, it was specifically provided as follows:
During the entire period of Theka, the first party shall have all the rights and powers, as per conditions laid down in the auction sale and agreement in respect of use of shed and shops as enjoyed by the second party as proprietor in possession of the said property.
The first party shall have possession of the sheds aforesaid detailed in the said map and 11 shops aforesaid.
In all the eleven shops included in the Theka, I, the Thekedar, would be empowered to let them to the sub-tenants on rents mutually settled between us.
9. While construing the said agreement the Supreme Court held that right in the property was created in favour of the holder and as such, the same amounted to a lease.
10. In the case before us, there is no registered deed created for creation of a lease and the agreement was a mere agreement of maintenance and as such, the said decision cannot help of Mr. Mitras clients in anyway.
11. We, therefore, find that the appellant having no subsisting right in the property by virtue of the alleged agreement with the defendant No.4, such agreement does not confer right upon the appellant to prefer appeal against a decree suffered by the defendant No.4 on the ground of collusion.
12. The appellant being neither a necessary nor a proper party to the suit filed by the landlords against their tenant, we are of the view that the appeal filed by the appellant is not maintainable and there is no scope of giving right to the appellant to challenge the decree suffered by the defendant No.4 ex parte. On the above ground alone we dismiss the appeal as not maintainable. We make it clear that we have otherwise not gone into the merit of the decree passed by the learned Single Judge.
G.A. No.3787 of 2010
13. This is an application filed at the instance of another third party thereby praying for being impleaded as co-appellant in the above appeal which we have just dismissed.
14. The above appeal having been found to be not maintainable, we do not propose to grant any leave to the present applicant to be added as co-appellant in the above appeal and consequently, we do not consider even the alleged status of the applicant. If the applicant is of the view that it has right to challenge the decree as an appellant on the basis of its own right in the property, it is free to file independent appeal of its own with an application for permission to file such appeal on payment of appropriate court-fees and subject to the period of limitation prescribed thereof. But in an appeal filed by a person having no right in the property and consequently, an appeal not otherwise maintainable, the applicant who claims to have independent right cannot be added as an appellant to advance his own case totally different from the other. We make it clear that while dismissing this application we have not gone into the merit and the dismissal of the application will not stand in the way of the applicant in preferring separate appeal on its own strength in accordance with law. This application is also, thus, dismissed.