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Ebrahim Ismail Timol Vs. Provas Chander Mitter - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1909)ILR36Cal59
AppellantEbrahim Ismail Timol
RespondentProvas Chander Mitter
Cases ReferredRungo Lall Lohea v. Wilson I.L.R.
Excerpt:
jurisdiction - suit for land--suit by lessee for rents and profits during absence--lessor in possession--letters patent, 1865, clause 12. - .....i.l.r. 26 calc. 204; 2 c.w.n. 718 is also relied on by the plaintiff. there the suit was for rent of premises in howrah. the defendant did not deny that they were tenants of the premises, and were liable to pay rent for them. what was disputed was the terms of the tenancy and the right of the plaintiffs in respect of it. no relief was asked for in respect of the land, and it was not sought to deal with it in any way. it was accordingly held that this was not a suit for land under clause 12. in hara lall bannerjee v. nitambini debi (1901) i.l.r. 29 calc. 315 the plaintiff sued for construction of a will, for administration of the property demised, and for the immediate possession of immoveable property at hooghly. following the decisions in delhi and london bank v. wordie (1876).....
Judgment:

Stephen, J.

1. In this case the plaintiff claims certain reliefs under the following circumstances:

2. On the 2nd of November 1905 he took from the defendant a lease of a house and premises 38, Elgin Road, which are admittedly beyond the limits of the local Original Jurisdiction of this Court. The lease was for 15 years from the 15th of September 1905. It contained two provisions with which we are concerned; the first was an ordinary covenant for re-entry by the landlord in case of non-payment of rent, the other provision gave him a right to enter on the premises on their being vacated by the tenant, and enabled him in that case to relet the premises, the tenant remaining liable on his covenants, and in particular being liable for any deficiency of the rent on re-letting by the landlord. What occurred was that the rent for the months of April, May and June fell into arrears, and the landlord obtained a decree in respect of these arrears in the Small Cause Court in August of that year. At. about the same time the premises were vacated by the defendant on his being committed to jail in consequence of a conviction before the criminal sessions of this Court. The plaintiff's chief contention is that the defendant entered on the premises under the second of the covenants that I have mentioned, and that the lease has not been terminated, but the defendant is a trustee for his benefit in respect of the profits that he has received in respect of these premises and must account to him for any rent he has obtained from the premises exceeding the amount which the plaintiff has undertaken to pay. He also claims damages for stables, which he says the defendant has pulled down, and alternatively, if the lease is terminated, a return of Us. 1,500, which he deposited with the defendant as security for rent.

3. On these facts the defendant has taken a preliminary objection that this is a suit for land or immoveable property outside the local limits of the jurisdiction of this Court, and cannot therefore be tried by this Court under the powers conferred by Clause 12 of the Letters Patent. To decide this question I must in the first place look to the prayers of the plaint to see what exactly are the reliefs claimed. Of these I need consider only the first four. By the first and second the plaintiff asks for an account of money due to him under the lease, by the third for a declaration that the lease and the rights of the lessee are valid and subsisting, and by the fourth for a declaration that he is entitled to the rents and profits of the premises pending the termination of the lease.

4. The subject matter of the first and second of these is money in the hands of the defendant as trustee for the plaintiff and is based on events that have occurred. The subject matter of the third and fourth must apparently be the premises in question and the rents and profits arising therefrom. The granting of the third and fourth prayers will enable the plaintiff to recover rents from any tenant of the house, and will thus put the plaintiff into possession of the house by receipt of its rent. The law applicable to the case may be gathered from several decisions in this Court. In the first place a comparison may usefully be made between the two cases of the Delhi and London Bank v. Wordie (1876) I.L.R. 1 Calc. 249 and Kellie v. Fraser (1877) I.L.R. 2 Calc. 445. The first of these was a suit to have certain trusts carried into effect, and its express purpose is stated by Garth C.J. to be to compel the sale of certain land not within the local jurisdiction of the Court. It was held that the case depended on whether the suit was 'brought substantially for land, that is for the purpose of acquiring title to, or control over, land' within the meaning of Clause 12: and on the facts it was decided that it was and that the Court had no jurisdiction.

5. The second case, which is one of two chiefly relied on by the plaintiff, was an application to file an award, by which a dissolution of a partnership was awarded, and it was ordered that a tea garden at Darjeeling, the property of the partners, should be sold. It was held a suit to effect what was ordered by the award could not have been a suit for land, because the object of the suit would have been to enforce a dissolution of the partnership on suitable terms and not to obtain possession of or acquire a title to the tea garden; and that the application was therefore within the jurisdiction of the Court. The case of Rungo Lall Lohea v. Wilson (1898) I.L.R. 26 Calc. 204; 2 C.W.N. 718 is also relied on by the plaintiff. There the suit was for rent of premises in Howrah. The defendant did not deny that they were tenants of the premises, and were liable to pay rent for them. What was disputed was the terms of the tenancy and the right of the plaintiffs in respect of it. No relief was asked for in respect of the land, and it was not sought to deal with it in any way. It was accordingly held that this was not a suit for land under Clause 12. In Hara Lall Bannerjee v. Nitambini Debi (1901) I.L.R. 29 Calc. 315 the plaintiff sued for construction of a Will, for administration of the property demised, and for the immediate possession of immoveable property at Hooghly. Following the decisions in Delhi and London Bank v. Wordie (1876) I.L.R. 1 Calc. 249 and Kellie v. Fraser (1877) I.L.R. 2 Calc. 445, it was held that the suit was for land. The facts of this case seem to me to show that as far at least as the third and fourth prayers are concerned the suit is one for land.. This appears to me certainly so in view of the case of the Delhi and London Bank v. Wordie(1876) I.L.R. 1 Calc. 249, and I see no reason at all for not following that ruling in consequence of anything that is found in the decision in Kellie v. Fraser (1877) I.L.R. 2 Calc. 445. Indeed the difference between these two cases seems to me to show that this is certainly a suit for land. I was at first struck with the case of Rungo Lall Lohea v. Wilson I.L.R. 26 Calc. 204; 2 C.W.N. 718., but on looking into the facts of that case I think that it is abundantly clear that it is entirely different from the present one. What the plaintiff is seeking to do is to do something, which will directly affect the property, namely, to obtain possession of it by receipt of rent. Under these circumstances, I hold that this is a suit for land outside the jurisdiction of this Court and consequently that it cannot be brought as far as prayers 3 and 4 are concerned. It then remains to be considered whether I can entertain the prayer for an account by the defendant, and the prayer for damages in respect of the pulling down of the stables referred to by the plaintiff. It seems to me clear that I cannot entertain either of these two prayers. The plaintiff alleges that his lease is still in existence and neither of the questions that I have referred to can be determined till this point is decided.

6. The plaintiff alleges that the defendant is for some purposes his trustee. This again depends entirely upon what has taken place under the lease. The result is that this suit must be dismissed with costs. I have to add that the defendant at an early stage of the case made an offer that, if the plaintiff would admit that the lease was terminated, the question of the defendant's liability to account for Rs. 1,500, which he has received, should be decided.

7 This offer was not accepted by the plaintiff.


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