Samar Roy Vs. Smt. Purnima Shaw and ors. - Court Judgment

Pratap Kumar Ray, J.

1. Challenging the Judgment and order dated 9th March, 2004 passed by the learned Judge 12th Bench City CM Court at Calcutta in Misc. Appeal No. 57 of 2003 affirming the Judgment and order dated 2nd August, 2003 passed by learned Judge,, 3rd Bench, Small Causes Court at Calcutta in Misc. Cage, No 229 of 2000, this Second Miscellaneous Appeal was preferred by he appellant who was the applicant of an application under Order 2l Rule 101 of, the Code of Civil Procedure praying for a declaration that decree of eviction passed in Ejectment Suit No. 332 of 1992 being an ex parte decree, was bad in law and not enforceable against him and the Ejectment Execution Case No. 47 of 1995 arose out of the said decree was not at all enforceable on the ground that prior to filing of the eviction suit by the plaintiff of the suit, the tenant Vidyadhar Rath surrendered his tenancy right on 15th June, 1991 to one of the co-owner landlord of the suit premise, namely, Murati Shaw who subsequently inducted the present appellant, Samar Roy, as a tenant of the suit premises with effect from July, 1991, who in turn was paying the proportionate rental to the extent of 1/4th share of the suit premises, to said' landlord Murati Shaw. On 7th July, 2004, this appeal was admitted for hearing under Order 41 Rule 11 of the Civil Procedure Code by the Division Bench (Coram: A.K. Ganguly & Tapan Kr. Dutt, JJ. on framing the following, substantial questions of law:

XI. Whether the suit for eviction was maintainable without impleading respondent No. 3 being one of the co-sharers of the property?

XII. Whether a decree passed in the suit filed by the other co-sharers without impleading one of the co-sharers who had created a tenancy prior to the suit filed by the other co-sharers against erstwhile tenant for eviction is enforceable against such tenant?

XIII. Whether in view of surrendering of tenancy by the erstwhile tenant prior to the induction of present tenant/appellant herein the suit as filed by the other co-sharer is maintainable?

The fact of the case for effective appreciation of the substantial question of law as framed is required to be canvassed, which in brief as follows:

2. One Motilal Shaw as an owner of the suit premises inducted one Vidyadhar Rath as a monthly tenant. Motilal Shaw died leaving a Will in respect of the suit property and other properties, which got duly probated. On 15th June, 1992, respondent No. 1 herein as executrix of the Will filed Ejectment Suit No. 332 of 1992 the City Civil Court, 10th Bench against tenant, Vidyadhar Rathv on the ground that defendant Vidyadhar Rath defaulted in payments of rent, had sublet the tenanted premises, a tile shed room on the ground floor of Premises No. 23, Banamali Sarkar Street, Shympukur, Kolkata to one Sri Samar Roy, the present appellant herein and the suit room was required for her own use and occupation. Suit was decided ex parte as Bhagyadhar did not contest and a decree of eviction was passed on 26th May, 1994, which was placed for execution of the decree resulting Execution Case No. 489 of 2000. This execution was resisted by the present appellant, Samar Roy, filing an application under Order 21 Rule 101 of the Code of Civil Procedure praying for a relief that decree was not executable on setting up a case of independent right as a tenant in the suit premises being inducted by respondent N0.3 Murati Shaw, at a monthly rental of Rs. 120/- per month with effect from July, 1991 on payment of proportionate rental of Rs. 30/- per month to Murati; Shaw who is the 1/4th share holder of the suit premises as was decreed in his favour in a partition suit, which reached its finality even in appeal in the High Court at Calcutta and thereafter due to rejection of the Special Leave Petition, after surrender of tenancy right by Vidyadhar Rath on vacating the possession of tenanted premises in favour of Murati Shaw in June, 1991 prior to the filing Of the eviction suit by the respondent No. 1.

3. This application was opposed by the respondent No. 1 but supported by the respondent No. 3, Murati Shaw, by filing their respective documents.

4. On the aforesaid premises, the Executing Court he}d, that though Murati's title over the property as 1/4th share holder was judicially determined long after induction of tenant Vidyadhar Rath in the suit property by the Motilal Shaw by the Judgment of the Court, which though still under challenge, but on accepting even the 1/4th ownership of the property, same had not given the original tenant inducted toy Motilal Shaw, a right to surrender the tenanted premises in favour of Murati Shaw whose share in the property was declared subsequently and thereby admittedly she became, landlord as per the meaning of Section 2(d) of the West Bengal Premises Tenancy Act to have the vacant possession of the property by, valid discharge of the tenancy right by Vidyadhar Rath, as the Vidyadhar Rath never parted with the possession and deliver the same by surrendering the possession to the lessor, namely, Motilal's legal heir and' more particularly the executrix of the Will, hence, under the law there was no parting with of the property by the tenant Vidyadhar Rath by alleged delivery of possession and hence there was no scope to induct a new tenant, the present appellant, who was the applicant of the said application filed in the execution proceeding. Learned Executing Court, further held that on the pleadings of the parties and from the evidence it was reflected that there was distribution of rental by the co-owner Murati Shaw out of her own accord, which was not permissible under the law as the other co-owners did not agree with such splitting up of the rental as allegedly was fixed to the tune of Rs. 120 per month with the appellant 'Samar Roy. Learned Executing Court relying, upon the Judgment passed in the case Dhaneswar Choudhary and Ors. v. Subodh Kumar Sett and Ors. reported in : AIR1967Cal334 and Jatinder Kumar v. Harmohinder Singh and Ors. reported in , accordingly, held against the appellant and 'dismissed the Misc. Case No. 229 of 2000 arose out of the application filed under Order 21 Rule 101 of the Code of Civil Procedure, by the Samar Roy, the appellant herein, praying for declaration that the eviction decree was not executable and praying the relief of necessary declaration of his tenancy right in the suit premises.

5. The appeal was led against this Judgment and order dated 2nd August, 2003 passed in Misc. Case No. 229 of 2000 before the learned Judge, 3rd Bench, Small Causes Court at Calcutta by the present appellant Samar Roy, which was registered as Misc. Appeal No. 57 of 2003. This appeal was decided filially by the learned Judge, 12th Bench of City Civil and Sessions Court at Calcutta confirming the Judgment under appeal and dismissing the Misc. Appeal by holding the same view as taken by the learned Executing Court This Judgment and order of Misc. Appeal Court was passed on 9th March, 2004. Challenging the said Judgment and order passed in Misc. Appeal No. 57 of 2003 dated 9th March, 2004 affirming the Judgment and order dated 2nd August, 2003 passed by learned Judge, 3rd Bench, Small Causes Court at Calcutta in Misc. Case No. 229 of 2000, this present second appeal was preferred, which was admitted for final hearing under Order 41 Rule 11 of the Code of Civil Procedure as already referred to by framing the questions as detailed above.

Submission and finding of this Court:.

6. Learned Advocate appearing for the appellant and the respondents addressed the issue in different angles by referring several Judgments on issue of surrender of tenancy right, right of the landlord who inducted a tenant to file an eviction suit and legality and validity of induction of a tenant by splitting up the rental by one of the co owners. On hearing the parties, the question of law as thrashed which got a reflection to the final answer of the questions framed as substantial question of law, are to this effect:

(1) In terms of Section 111(e) and (f) of the Transfer of Property Act which has its applicability about surrender of a tenancy right under Section 19 of the West Bengal Premises Tenancy Act, whether there was any valid surrender of tenancy right by Vidyadhar.

(2) On the factual matrix when subsequent to the induction of Vidyadhar Ratn as a tenant by Motilal Shaw as a landlord and owner of the property, due to declaration of the Court of law holding the Motilal was not absolute owner of the property and Murati Shaw also became a 1/4th share holder of property which placed Murati under Section 2(d) of the West Bengal Premises Tenancy Act in the status of landlord,' whether Vidyadhar's surrender would be considered as Valid surrender of his tenancy right providing a scope of creation of new tenancy right in favour of the present appellant by Murati Shaw on splitting up the rental proportionate to the extent of her share as declared.

7. To answer those legal questions, Court need not to wait, as those are the settled legal positions as to be reflected from the Judgment passed in several cases. It is a Settled legal position now that when the joint owner of a property inducts a tenant, surrender of tenancy right could be made to one of the owners but in the instant case fact is different where Vidyadhar was originally inducted as a tenant by Motilal, who was the sole landlord who got the right to file the eviction suit against the tenant Vidyadhar and Vidyadhar had the right to surrender the tenanted premises delivering the possession to Motilal only. In the instant case as Motilal is no more in the world naturally, the executrix of the will of Motilal got the right to sue praying for eviction of the tenant Vidyadhar. By dint of declaration of title over the property subsequent to the induction of the tenant Vidyadhar, in favour of Murati Shaw declaring her 1/4th share Murati Shaw as best became a landlord under Section 2(d) on its extended meaning of the word 'is entitle in terms of Section 2(d), which reads as follows:

2(d). 'landlord' includes any person who, for the time being, is entitled to receive or but for a special contract would be entitled, to receive, the rent of any premises whether or not on his own account.

8. But entitlement to be a landlord subsequent to the induction of tenancy right by the Motilal never has empowered either Vidyadhar to surrender the tenancy right to Murati Shaw Without consent of the other co-owners, the respondent No. 1 and also Murati Shaw had ho capacity to accept such surrender of tenancy right of Vidyadhar. Once it is concluded that Vidyadhar only had right to surrender the tenanted premises to the Executrix No. 1 of the will of Motilal it is explicit that there was no valid surrender of, the tenancy, right and Vidyadhar remained as a tenant with a liability to deliver the vacant possession to the Executrix No. 1 in whose favour Civil Court passed a decree in the eviction suit as already referred to. In view of such, as the Vidyadhar had no legal right to surrender the tenanted premises to Murati Shaw without consent of the other, co-owners, which has been discussed in detail by both the Courts below and since there was no delivery of possession by the tenant Vidyadhar legally or validly, there was no scope to induct a new tenant by Murati Shaw irrespective of the fact that she became the 1/4th shareholder of the property during continuance of the tenancy right over the premises' by Vidyadhac. In that view of the matter, the Apex Court in the Special Leave Petition accordingly, held that by application of Section 2(d) of the West Bengal Premises Tenancy Act, 1956, Murati Shaw became the co-sharer of the property entitling her to receive the rental proportionately, but same has not given any right to Murati Shaw to accept the surrender of tenancy right as allegedly done by the Vidyadhar, a case made out by present appellant. Hence, the property was not at all a vacant property whose delivery of possession allegedly was given by the tenant Vidyadhar. Hence, there was no scope to induct the present appellant as a tenant. Furthermore, from the case of the appellant it appears as discussed by both the Courts below that appellant was inducted by Murati Shaw on the condition of splitting up of the rental without consent of the co-owners of the property, the factual findings of which has been confirmed by both the Courts below and thereby it was held that the same was not permissible under the law.

9. On a bare reading of the Judgments under appeal it appears that both the Courts below did not err to apply the settled legal position. Hence, when there is a dispute on question of application of settled legal position in this field, it cannot be a substantial question of law involved even if it was framed by the Division Bench at the time of admission hearing of present appeal.

10. In that view of the matter, this Court is of the view that as, there was no delivery of vacant possession by the tenant Vidyadhar to the heirs of Motilal, namely, the executrix of Will as probated lawfully, question of surrendering of tenancy right could be the substantial question of law as framed being the ground No. XIII as ft is merely a question of law on the basis Of the factual matrix, which has been decided by both the Courts below against the present appellant. Similar to that, the question No. XI and XII as set up at the time of admission hearing cannot be termed as having an involvement of any substantial question of law by applying the settled legal position in this field about the arena of jurisdiction to identify a question laws substantial question of law under Section 100 of the Code of Civil Procedure. Reliance may be placed to the Judgment passed in the case Santosh Hazari v. Purushottam Tiwari reported in : [2001]251ITR84(SC) .

11. Having regard to the aforesaid finding and observation this Court is of the view that the questions as framed are not satisfying the test of substantial question of law under Section 100 of the Code of Civil Procedure and those are purely question of law on the facts arid its application, which has been considered by both the Courts below by concurrent findings of fact and law, which does Mot provide any scope of further interference. Appeal, accordingly, stand dismissed. No order as to costs. Let Lower Court records be sent back forthwith.

Later:

Occupational charge as directed to be paid by the appellant in terms of this Court's earlier order now could be considered for a decision about payments of such to the appropriate persons by the Executing Court wherein execution proceeding is pending.

Urgent xerox certified copy of this order, if applied for, be given.