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Bengal Glass and Silicate Works Vs. Lalit Mohan Bijlani and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberSuit No. 751 of 1983
Judge
Reported inAIR1986Cal57
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16 and 17
AppellantBengal Glass and Silicate Works
RespondentLalit Mohan Bijlani and anr.
Appellant AdvocateProdosh Mallick and ;Amitava Lala, Advs.
Respondent AdvocateA.C. Bhabra, ;Ajit Panja and ;Goutam Mitra, Advs.
DispositionPetition allowed
Cases ReferredProbirendra Mohun v. State of Bihar
Excerpt:
- .....therefore, this suit is a suit for land which involves determination of questions relating to right, title, interest and possession of land. as such, this court has no jurisdiction to entertain, try or determine the suit nor this court has any jurisdiction to grant leave under clause 12 of letters patent in a suit relating to or concerning the said flat in the said premises which is admittedly situate outside the jurisdiction of this court. it is the further contention of the petitioner that in a suit for land if any part of such land situate within local limits of this court, then only the question of granting leave under clause 12 of the letters patent would arise and in no other case. it is wholly irrelevant whether any part of the alleged cause of action arises within the.....
Judgment:
ORDER

P.K. Majumdar, J.

1. This is an application by the defendant 1 for an order, inter alia, that the plaint filed in this suit be taken off the file and be rejected; and leave granted under Clause 12 of the Letters Patent be revoked.

2. In or about December, 1983 the plaintiff instituted this suit in this Court praying, inter alia, (a) Leave under Clause 12 of the Letters Patent; (b) Declaration that the plaintiff is the monthly tenant of Flat No. 51 of premises No. 6. Mayfair Road. Calcutta more fully described in a schedule annexed to the plaint; (c) perpetual injunction restraining the defendants and/or their servants, agents, workmen, employees or any other person or persons claiming through the defendants from in any way disturbing or obstructing or doing any act which will in any way interfere with the peaceful possession, use and enjoyment of the plaintiff in respect of the said Flat No. 51 at premises No. 6, Mayfair Road, Calcutta, (d) perpetual injunction restraining the defendants and/or their servants, agenls. workmen, employees or any other person or persons claiming through the defendant from interfering with right of ingress to and egress from the said flat by the plaintiff and its servants and agents; (e) Receiver; (f) Injunction; (g) Costs and (h) further or other reliefs.

3. The plaintiffs case as made out in the plaint is shortly this. The plaintiff entered into an agreement with the first defendant for tenancy in respect of flat No. 51 at premises No. 6 Mayfair Road, Calcutta at a monthly rent of Rs. 1300/-. The said agreement was entered into in Calcutta within the jurisdiction of this Court. The plaintiff was the tenant of the flat No. 51 which was being used as Office-cum-Guest House. At the request of the first defendant the plaintiff had been paying the rent of Rs. 1300/- per month to the second defendant M/s. Vishnu Oil Company with effect from May, 1977 and rent receipts thereof were granted by the second defendant. The second defendant duly accepted the rent, up to and including the month of March, 1981 and on various pretexts the defendants did not accept rent from April, 1981.

4. The allegation of the plaintiff as disclosed in the plaint is that the defendants are wrongfully or illegally threatening to oust the plaintiff from the possession of the said flat. Further, the defendants are threatening to invade or invading the plaintiffs right to enjoyment.

5. The plaintiff prays for leave under Clause 12 of the Letters Patent on the basis that the defendants reside and the tenancy agreement in respect of the said flat No. 31. Mayfair Road was entered into within the jurisdiction of this Court.

6. In this application the petitioner alleges that the relief's claimed in this suit wholly relate to and affect the title and possession of the said premises which is admittedly situate outside the jurisdiction of this Court. In this suit the plaintiff has asked for determination of right relating to the title or interest of the plaintiff in the said flat as well as possession, control and management relating to or concerning the said flat. Therefore, this suit is a suit for land which involves determination of questions relating to right, title, interest and possession of land. As such, this Court has no jurisdiction to entertain, try or determine the suit nor this Court has any jurisdiction to grant leave under Clause 12 of Letters Patent in a suit relating to or concerning the said flat in the said premises which is admittedly situate outside the jurisdiction of this Court. It is the further contention of the petitioner that in a suit for land if any part of such land situate within local limits of this Court, then only the question of granting leave under Clause 12 of the Letters Patent would arise and in no other case. It is wholly irrelevant whether any part of the alleged cause of action arises within the jurisdiction of this Court or not.

7. The petitioner, therefore, prays that leave under Clause 12 of the Letters Patent be revoked and the plaint be taken off the file.

8. This application is being opposed and the affidavit-in-opposition by or on behalf of the plaintiff has been affirmed and filed. The petitioner's contentions and submissions are denied and disputed.

9. The learned Counsel appearing for the petitioner argues that it is wholly a suit for land. The question that is to be determined in this suit is whether the plaintiff has any right, title or interest in the said flat and whether the plaintiff is entitled to such declaration and injunction to protect its alleged right or interest in the said flat. The plaintiff in order to obtain the reliefs asked for, will have to establish its right, title or interest in the land. Therefore, according to the learned Counsel for the petitioner, this suit essentially involves the questions relating to right, title, interest and possession in the said flat which is the subject-matter in the suit.

10. In support of his above submission the learned Counsel cites the case of Bholanath Shaw v. Badrinath Shaw, reported in : AIR1974Cal292 . In this case it is the suit for administration of the trust estate comprising mainly immovable properties all situate outside the jurisdiction of Original Side of this Court and for other reliefs including the removal of one of the defendants from the office of the sole trustee and for appointment of plaintiff in place of that defendant. The learned Judge following the decision of the Federal Court and several decisions of this Court held that it was a suit for land because its purpose was to acquire right, title or control over the trust estate by removing the trustee and appointing a new trustee in his place.

11. The next case cited by the learned Counsel appearing for the petitioner is the case of Hindusthan Gas and Industries Ltd. v. Adhish Chandra, reported in : AIR1981Cal307 . This case is almost similar to the case I am called upon to decide. In that case the plaintiff instituted a suit in this Court with eave under Clause 12 of the Letters Patent and asked for, inter alia, a declaration that the plaintiff was a monthly tenant in respect of the demised premises and injunction restraining the defendant, his servants or agents from causing any disturbance to supply of essential services to the demised premises, peaceful use and occupation thereof by the plaintiffs, their servants or agents and their right of egress to and ingress from the said premises. In that case it was averred that the agreement for leave was entered into within the jurisdiction of this Court. The learned Judge after reviewing all the cases on the point was pleased to observe that the real purpose of the plaintiffs in this suit was to affirm and continue the tenancy of an immovable property which was situated outside the jurisdiction of this Court.

12. The learned Judge was pleased to revoke the leave obtained under Clause 12 of the Letters Patent and directed plaint to be taken off the file.

13. The learned Counsel for the petitioner next cited a Bench decision of this Court in the case of Tridandeeswami Bhakti Kusum Sraman Maharaj v. Mayapore Sree Chaitanya Math, reported in : AIR1983Cal420 . In this case this Court observed that the determining factor in a suit for land is what is the primary object of the suit. This Court proceeds to observe that the question whether out of several reliefs in the plaint the claim for the grant of particular relief which does not relate to title to, or possession, control or management of land and buildings or other immovable property, is the primary object of the suit or not has to be decided by applying the test whether such relief claimed to be the primary object of the suit can be granted to the plaintiffs without the necessity of any adjudication on the question of title to any land or buildings or other immovable property, or possession, control or management thereof. If the relief stands the test, the suit will not be a suit for land or other immovable property within the meaning of Clause 12 of the Letters Patent, although grant of such relief may indirectly affect land or other immovable property. If, however, by applying the test it is found that such relief cannot be granted without deciding the question of title to, or possession, control or management of land or other immovable property, then the suit in which such relief is claimed will be a suit for land or other immovable property within the meaning of Clause 12 of the Letters Patent.

14. The learned Counsel appearing for the respondent argues that the order asked for in this petition cannot be granted at this stage of interlocutory proceedings. It has been argued on behalf of the respondent that in this suit the plaintiff has not asked for recovery of possession, and the cases cited by the learned Counsel for the petitioner have no application to the present case, because in those cases plaintiff claimed possession besides other reliefs. He further contends that for the purpose of this application the real object of the suit has to be ascertained on the consideration of the averments made in the plaint. If there are two averments in the plaint, one asserting title to the land or buildings, and the other alleging a threat which is held out to invade the plaintiff's possession to the premises resulting in a breach of contract between the parties entered into within the jurisdiction, then the Court can grant relief by way of injunction restraining the defendants from holding out such threat or invading the plaintiff's right under the contract. Such suit, according to him will not be a suit for land. At one stage the learned Counsel also contends that the expression 'suit for land' means a suit for obtaining possession of the land or buildings or immovable properties or an adjudication of the plaintiffs title thereto. It is in other words the plaintiff's claim for a right, title and interest to the land with an object to obtain possession.

15. In support of the above submissions the learned Counsel for the respondent cited AIR 1950 FC 83 and : AIR1959Cal767 .

16. In the ease of Moolji Jaitha & Co. v. K. S. & W. Mills Co., reported in AIR 1950 FC 83 the Court laid down the test that if the primary object of the suit was to obtain an adjudication on title to the land or immovable property, the suit would be a suit for land. The Court also proceeds to observe that the words 'suits for land or other immovable property' in Clause 12, besides obviously covering claims for recovery of possession or control of land, are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or determination of any right or interest therein.

17. In the case of Probirendra Mohun v. State of Bihar, reported in : AIR1959Cal767 the Special Bench of this Court had occasion to consider the expression 'suit for land'. The Special Bench laid down that in considering whether a suit is a suit for land the determining factor is the primary object of the suit. It further observed that the place of accrual of the cause of action did not confer jurisdiction on the High Court on its Original Side if the suit was a suit for land. In the case of a suit for land the criterion is the situs of the land.

18. Now I will proceed to consider what is the scope of the present suit. What is the primary object of the suit? In this suit as indicated above, the plaintiff has asked for a declaration that it is a monthly tenant of flat No. 51 of the premises No. 6 Mayfair Road, Calcutta. By this prayer the plaintiff seeks an adjudication of its right or interest in the said flat and also of right to possess the said flat as a tenant. Therefore, in order to obtain this declaration the plaintiff will have to establish its right or interest in the premises as a tenant. In respect of the plaintiff's prayer for perpetual injunction the plaintiff will also have to establish that it has a right to peaceful possession, use and enjoyment of the said premises and such right, if established, should not be disturbed. Further, the plaintiff claims that by virtue of its right or interest in the said premises, his right of ingress to or egress from the said flat should nol be disturbed.

19. Therefore, it would appear that primary object of the suit is an adjudication of the plaintiffs right, title and interest in the said flat in the said premises and reliefs claimed in the suit cannot be granted without deciding the question of title to or interest in or possession, control of the flat, the subject-matter of the suit. The real object of the plaintiff is to affirm and continue its tenancy in the said flat in the said premises which is situate outside the local limits of the jurisdiction of this Court. Therefore, applying the test laid down by the Federal Court and this Court, as indicated above, one cannot but come to a conclusion that it is a suit for land.

20. It has been contended on behalf of the respondent that since the tenancy agreement was executed within the jurisdiction or that the threat of invasion of the plaintiff's right to possess arising out of the said tenancy agreement, a part of the cause of action arose within the jurisdiction of this Court, and leave under Clause 12 of the Letters Patent was obtained. Therefore, according to the learned Counsel for the respondent, the Court can proceed to consider whether there is any breach of contract namely, the breach of the said tenancy agreement. In other words, the plaintiff's right to tenancy is being invaded or sought to he invaded in breach of the obligations arising out of such tenancy agreement. In my opinion, in any event that question will involve determination of the plaintiff's right to possession in the said flat and its right and interest in the said flat. Moreover, as held by the Special Bench of this court in the case reported in : AIR1959Cal767 (supra) the place of accrual of the cause of action within the jurisdiction does not confer jurisdiction on this Court if the suit is a suit for land. In such a suit only consideration for the Court is the situs of the land or buildings, and what is the primary object of the suit-is it an adjudication of right, title, interest or possession or control in the land or buildings or other immovable properties? I think it is.

21. It is also well-settled that in a suit for land, the Court cannot assume jurisdiction only on the ground of residence of the defendant within the jurisdiction when the entire land or immovable property is situate outside the jurisdiction. See Moolji Jaitha's case reported in AIR 1950 FC 83 (supra).

22. I am also of the view that in a suit for land, leave under Clause 12 of the Letters Patent can only be sought and obtained if a part of the land is within the jurisdiction of this Court. Leave obtained on the basis of the averment that tenancy agreement was executed within the jurisdiction is of no consequence.

23. I, therefore, hold that the present suit is suit for land and as no part of the land is situate within the jurisdiction of this Court, this Court does not have jurisdiction to entertain, try and determine the suit.

24. For the reasons stated above the defendant succeeds in his application. There will be an order revoking the leave given under Clause 12 of the Letters Patent and directing the plaint to be taken off the file.

25. There will be no order as to costs.

26. The operation of this order will remain stayed for a fortnight.


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