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Baidyanath Dutta and ors. Vs. Radheshyam Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 28 of 1973 (with cross-objection)
Judge
Reported inAIR1979Cal97
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2; ;Easements Act, 1882 - Section 1; ;Transfer of Property Act, 1882 - Section 106
AppellantBaidyanath Dutta and ors.
RespondentRadheshyam Dutta and ors.
Appellant AdvocateT.P. Das and ;Durga Sankar Mullick, Advs.
Respondent AdvocateBireswar Bhattacharyya, ;Kalijewan Mukherjee and ;Nirmala Kumari Chaturvedi, Advs.
DispositionAppeal allowed
Cases Referred(Rajendra v. Nandalal). The
Excerpt:
- .....no. 197 of 1963 in the city civil court at calcutta, for declaration of her tenancy right of the suit land and for injunction. that suit was decreed. then the defendant filed the suit no. 3648 of 1968 under section 41 of the presidency small cause courts act and obtained an order for possession. it has been stated in the plaint that the plaintiff is a permanent tenant of the land and he has absolute right to maintain possession of the property. the suit is for permanent injunction, declaration of tenancy right, declaration of easement right, for a declaration that the order under section 41 is illegal and recovery of damages.2. the defendants filed a written statement denying the plaintiff's allegation. it has been alleged, inter alia, that the suit is barred by res judicata and under.....
Judgment:

B.N. Maitra, J.

1. The plaintiffs' case is that the disputed land along with the structures belonged to one Chamundi Charan Mukherjee. He died leaving his widow, Lakshimoni Debi and son, Bis-wanath Mukherjee. On the 15th of June 1938, Biswanath sold only the structure to one Sakhibala Dassi for Rs. 700/ by a registered kobala. On the same date he granted a lease of the land for 20 years at a monthly rental of Rs. 14/- with an pption to renew for S years more. Thereafter Sakhibala made herself scarce resulting in a presumption of death by the efflux of the statutory period, The plaintiff is the heir by her only daughter. The defendant purchased the property from Biswanath and obtained an order from the Thika Controller for re-entry against one Monimala Dassi. Then the present plaintiff instituted the Title Suit No. 197 of 1963 in the City Civil Court at Calcutta, for declaration of her tenancy right of the suit land and for injunction. That suit was decreed. Then the defendant filed the suit No. 3648 of 1968 under Section 41 of the Presidency Small Cause Courts Act and obtained an order for possession. It has been stated in the plaint that the plaintiff is a permanent tenant of the land and he has absolute right to maintain possession of the property. The suit is for permanent injunction, declaration of tenancy right, declaration of easement right, for a declaration that the order under Section 41 is illegal and recovery of damages.

2. The defendants filed a written statement denying the plaintiff's allegation. It has been alleged, inter alia, that the suit is barred by res judicata and under Order 2, Rule 2 of the Civil P. C. The plaintiff has no tenancy right. The order for possession was validly passed in the suit under Section 41 of the Presidency Small Cause Courts Act and a valid notice to quit was served.

3. The learned Judge of the City Civil Court decreed the suit in full, He stated under the Issues Nos. 1, 6 and 7 that the plaintiff was not entitled to claim any damages. He did not grant any relief regarding the prayer for easement. But still full costs were awarded in the plaintiff's favour. He also declared that the plaintiff was a tenant as held in Title Suit No. 197 of 1963. Being aggrieved by that decision the defendants preferred the present appeal.

4. It has been contended on behalf of the appellants that suit is barred by the provisions of Order 2 Rule 2 of the Civil P. C. because the entire relief claimed in the present suit was available to the present plaintiff when he instituted the earlier suit in 1963. Since he omitted to do so he cannot ask for the present relief. The suit is also barred by the principles of res judicata. It has been stated that the kobala in question and the disputed lease were executed on the same date. The documents must be read together. In fact there was only one transaction. Reference has been made to Odger's Construction of Deeds and Statute, page 58, 5th Edition and Norton's Deeds at page 78. It has been contended that it was held in the Title Suit No. 197 of 1963 that the present plaintiff was holding over as a monthly tenant. That tenancy was duly determined by a notice to quit. So after determination of that tenancy, the plaintiff's suit should not have been decreed. It has been contended that the plaintiff has no right of easement. The case in AIR 1947 Cal 401 has been cited to show that the Small Causes Court could discuss the matter. Since under the lease the plaintiff has a right to remove the structure after the expiry period of lease, tha plaintiff must remove it. The suit is not tenable and the appeal should be allowed.

5. The learned advocate appearing on behalf of the respondents has contended that the disputed kobala (Ext. 1) clearly shows that the sale was coupled with a grant for peaceful enjoyment of the hut transferred by that sale deed. The recitals in the document show that tha transferee shall be at liberty to enjoy the hut on payment of rental of Rupees 14/- per month. Hence a permanent grant was made and the plaintiff has a right of support, that is, easement of necessity, in the land. Such covenant runs with the land. Such easement is not in any way restricted by the execution of the subsequent lease (Ext. 3) and that right does not end with the period of the tenency. The right of support will continue. At best it can be stated that after execution of the lease at 1 p.m. on the same date, there was a mere suspension of the easement right But the same revived as soon as the period of 20 years reserved in. the document of lease expired. Reference haa been made to Sees. 47, 48, 49 and 51 of the Indian Easements Act. It has also been contended that by the kobala a per-manent grant was made. But by the subsequent lease (Ext. 3) the period was restricted to only 20 years. By executing that subsequent document the transferor wanted to cut down such permanent grant and so the terms contained in the kobala will prevail over those subsequently embodied in the document of lease. It has also been argued that there is no valid notice to quit determining the plaintiff's tenancy. Admittedly the tenancy commenced on the 15th June, 1938, that is, on the 32nd Jaistha, 1345 B. S. But the page 71 (Part II) of the Paper Book shows that the notice to quit says that the plaintiff was to vacate on the expiry of the 1st Kartick, 1376 B. S., corresponding to 18th Oct. 1968. In the document of lease the date of commencement of the lease has not been given. So according to the provisions of Section 110 of the T, P. Act, the time so limited began from the making of the lease and the lease must last during the whole anniversary of the day from which such time commenced. It has been stated that since the time of commencement was not even in the lease, the lease lasted till the 1st day of Kartick, 1976 B. S,, and so the alleged notice to quit is not valid in law. The cases in 46 Cal WN 366 a (AIR 1942 Cal 341) and : AIR1955Cal495 have been cited. It has also been stated that in view of Section 19(g) of the Presidency Small Causa Courts Act. tha Small Cause Court had no jurisdiction to decide the question of title. Since the Small Cause Court decided the question of title in. the proceeding under Sec. 41 of the Act, the order is void. So the present suit was rightly filed to get over that decision.

6. Now about the objection in respect of the cause of action. The plaintiff's title in respect of the hut and the land is not the same. His title to the land is that of a tenant by holding over, whereas his title to the hut is that of an owner. So the cause of action for the two properties, is different. His right, regarding the hut was not in jeopardy in the title suit No. 197/1963. Reference may be made to the Privy Council Case of Payana v. Pana Lana Palaniappa in (1914) 41 Ind App 142 at p. 148 to show that the rule prescribed by Order 2, Rule 2 C.P.C, is directed to securing exhaustion of the relief in respect of cause of action and not to the inclusion in one and the same action or different causes of action even though they arise from the same transaction. One criterion to decide the matter is whether the same evidence will maintain both the actions. After the decision of the case Under Section 41 of the Presidency Small Cause Courts Act this suit was filed. Since the cause of action in the two suits is different, it most be held that the provisions of Order 2, Rule 2, C.P.C, are not a bar to the present suit.

7. It has been rightly commented upon by the learned Judge that the plaint was not properly drafted. Nevertheless there is a mere statement of easement right. It has not been pleaded that the plaintiff can claim an easement of necessity. Reference may be made to the case of Nani Gopal v. Kshitish Chandra in : AIR1952Cal108 wherein G, N. Das and Lahiri, JJ. have stated that the popular notion about an easement of necessity, that whenever a man has no other way, he can claim the right to go over his neighbours' land is not supported either by principle or by authorities. Such easement is founded on an implied grant or reservation and such right does not arise in every case in which the property becomes useless without an easement being raised in favour of the person claiming it, So with a view to founding the claim of easement of necessity there must be existence of two tenements, viz., dominant tenement and servient tenement. Now, easement may be acquired in various ways, viz., by grant, prescription etc. But here we find the absence of two tenements. It has been stated for tho respondent that the hut covers the entire land and there is no vacant land to tread upon. That makes the plaintiff'^ case weak. The plaintiff claims to be a tenant of the property. So long he was a tenant, he cannot claim any easement right in the same land against his landlord. Law is that none can claim an easement right over his own property because that would be a proprietary right and not an easement right. Moreover, in the Title Suit No. 197 of 1963 the plaintiff was held to be a monthly tenant by holding over. At that time it was not claimed that a permanent right or grant was made by the kobala or right of support was open to him. So the present claim is barred by the principles of constructive res judicata inasmuch as such claim might and ought to have been made in that suit.

8. Then about the construction of tha two documents. Reference may be mada to the case of Midnapore Zamindary Co, v. Jogendra Kumar in 33 Cal LJ 186 at p. 189 : (AIR 1921 Cal 750). Sir Ashu-tosh Mukherjee and Fletcher, JJ, have observed that if there are two parts or clauses of a deed repugnant to each other, the first one will be accepted and the later rejected unless there is some reason to the contrary. But this rule should never be adopted until the apparent inconsistency can be reconciled and the rule is subordinate to the general principle that the intention must be assertained from the entire document, for effect has to be given to that part which is calculated to carry into effect the real intention and that part which would defeat it should be rejected. Hera the kobala (Ext. 1) recites in the earlier stages that an absolute sale has been made. The first portion of the document is inconsistent with the subsequent portion where there is clause for peaceful enjoyment of the property on payment of rent at Rs. 14. The latter clause is incompatible with the earlier one and the two cannot stand together and cannot be reconciled. After making absolute sale of the hut, there cannot be such later clause to pay monthly rent for its beneficial enjoyment. Reference may also be made to the decision of Mr. Justice Vivian Bose in the case in : [1955]1SCR174 to show that to construe a deed the intention of the parties has to be gathered from the document itself and if the document is clear and unambiguous, the effect must be given thereto ruling out any extraneous enquiry. The real question is not what the parties meant, but what is legal effect of the words which were used and if there is ambiguity, one can look to the surrounding circumstances to determine what was intended. Here the subsequent portion of the deed has become incongruous and vague. So with a view to ascertaining the intention of the parties, it is necessary to refer to the surrounding circumstances, i.e., one has to look to the terms of the lease (Ext. 3) executed almost contemporaneously on the same day. Here we are not dealing with the interpretation of a Will -- where, in a case of conflict between its two clauses, the latter will prevail and the earlier one rejected.

8. The lease (Ext. 3) recites at the beginning that the kobala was executed. So we find affirmance of the execution of the kobala in that contemporaneous document. It appears from Clause 8 of that document that on the expiry of tha lease, the second party (lessee) would be competent to remove his house etc. from the upper portion of the said land, if there be no dues payable to the first party (lessor). Then Clause 9 recites that if any default is made in the payment of rent for three consecutive months and if the lessee violates any terms of tha lease or he is involved in debts or is declared insolvent, the lease shall be cancelled and cause of action for ejectment would arise. These clauses in unmistakable terms indicate that the kobala and the lease are two independent documents and the kobala cannot prevail over the later lease.

10. Here we may point out that the learned advocate appearing on behalf of the respondents stated that in view of Sections 8 and 11 respectively of the T. P. Act the transfer would convey all interest which the transferor was capable of passing in the property and the restrictive clause in the lease is repugnant to the absolute interest created by the kobala. He also referred to the provisions of the Section 55 of the Act and stated that since the sale was made, there was a warranty of title. Now, the Section 55 of the Act opens with the words 'in the absence of a contract to the contrary'. If we refer to the terms of the lease (Ext. 3), we find that here there was an agreement to the contrary, within tha meaning of the opening portion of Section 55 of the Act, because there is a clear recital in the lease that in the event of default or breach of the terms of the lease etc. the lessee would be ejected and the hut removed. So after making that contract it is not open to make such submission on behalf of the respondent.

11. It has already been indicated that there is a conflict between the two portions of the same deed. Law in respect of interpretation of documents has already been pointed out. One must have regard not to the presumed intention of the parties but to the meaning of the words that have been actually used in the documents. If two interpretations are possible, one which would give effect and meaning to all parts should be adopted and the words creating uncertainty can be ignored. This principle was affirmed by the Supreme Court in the latest decision of Delhi Development Authority v. Durgachand in : [1974]1SCR535 . So on an interpretation of the document it must be held that the earlier portion of the document of conveyance (Ext. 1) will prevail over the later ones in the same deed and the subsequent recitals entered in the same document must be ignored and there was no grant.

12. Since there was no grant, there cannot be right of any support for the hut standing on the land. Here the respondents are not making out any case of lateral support. Moreover the property is the same. The case of easement of necessity was not made out in the plaint or argued in the trial court. There was no issue on the point. Since it has been clearly found that there was no grant, the further conclusions follow that there is no easement of necessity and there is no scope for suspension or revival of such alleged easement or for the applicability of the principles embodied in Sections 47, 48, 49 and 51 of the Indian Easements Act. That Act does not apply to Bengal, but the principles laid down therein apply, vide the case in : AIR1955Cal70 . But such right cannot be founded on law or on the facts of this case either. Hence the principles of Sections 8 and 11 of the T. P. Act are of no avail to the respondent.

13. Then about the point of notice. There is a clear recital in the lease (Ext. 3) that such lease commenced from the day of making of that lease, i.e., from 32nd Jaistha, 1345 B.S. corresponding to 15-6-1948, because the actual words used are 'vernacular'. Hence there is no scope for the applicability of the principles enunciated in the cases in 46 Cal WN 366 and : AIR1955Cal495 , cited on behalf of the respondents.

14. The notice to quit dated 11-9-1968 states that the tenant was directed to deliver up possession of the suit land on the expiry of the 1st day of Kartick, 1376 corresponding to 18-10-1968 or alternatively, at the end of the month of the defendants' said tenancy which would expire next from the date of service of the notice. It may be pointed out that this point was not pleaded and hence the question arose whether this can be permitted to be argued. The learned advocate appearing on behalf of the respondents referred to the Rent Act and said that it was a question of law. Since it is a mixed question of law and fact this argument was permitted to be advanced. However the judgment of the case under Section 41 of the Presidency Small Cause Courts Act also clearly shows that the point of notice was not taken in that case. It will appear from page 676 of the 6th Edition of Mulla's Transfer of Property Act that it is usual after mentioning the date of anniversary of the tenancy to add in the alternative some such general words 'at the end of the year of the tenancy which will expire next after the end of one-half year from the date of the service of the notice'. The aforesaid alternative clause is sufficient for the purpose of such determination. In the case in : AIR1977Cal122 it was held that notice in the alternative asking the tenant to vacate by the end of the month of the tenancy was a good notice. Hence we hold that the disputed tenancy was duly determined by a notice to quit.

15. Then about the objection that in view of Section 19(g) of the Act the Chief Judge of the Presidency Small Causes Court had no jurisdiction to consider the question of title. The learned advocate appearing on behalf of the appellant has referred to the case of Purusottam v. H. Bai in AIR 1947 Cal 401 at p. 402 in this connection. In this case the previous decision of our Court in (1904) ILR 31 Cal 1001 was affirmed (Rajendra v. Nandalal). The latter decision shows that the Presidency Small Causes Court cap try the question of title even if such question be the principal one, though not the sole one and to oust such jurisdiction the question of title must be the sole and only one in the suit. Now the matter has been concluded by the judgment delivered in the City Civil Court in the Title Suit No. 197 of 1963. There the question of title was thrashed out between the parties. So before the Chief Judge of the Small Causes Court there was no scope to decide any question of title. He rightly stated that after tha decision of such suit by the City Civil Court, the order for possession could follow since the tenancy in question had been determined by a notice to quit, It has already been pointed out that there too the question relating to the notice was not raised.

16. Then about the suit under Section 46 of the Act. That section indicates that after a judgment is delivered on an application under Section 41 of tha Act, a person can challenge the same by a suit saying that his rights wera protected against an application to obtain possession of the property. For that purpose the present suit was filed, This is the principle laid down in the case of Amulya in ILR C1950) 1 Cal 374. The suit was rightly filed to challenge the order passed under Section 46 of the Act. But the objection that the Chief Judge of the Small Cause Court erroneously had gone into the question of title cannot be accepted. That decision is a lawful one and we hold accordingly.

17. From a consideration of the facts and circumstances of the case we are of opinion that the present plaintiff had only precarious right regarding the hut standing on the land and that he had no permanent right in respect of the structures also, because in view of the Clauses 8 and 9 of the lease, (Ext. 3) the structures can be removed when the conditions of the lease are fulfilled. The period of the lease is over and it was held in the Title Suit No. 197 of 1963 that the present plaintiff was merely holding over as a tenant under Section 116 of the T. P. Act. That tenancy has been duly determined by a notice. Therefore, all the contentions put forward on behalf of the respondent fail.

18. The respondents have filed a cross-objection. The same will be dismissed as tha appeal is being allowed on the merits.

19. The appeal be therefore allowed with costs, The judgment and decree appealed against be and the same are hereby set aside and the plaintiffs suit dismissed with costs.

26. The cross-objection is dismissed with costs.

27. On the prayer of the learned Advocate appearing on behalf of the respondents the operation of this order is stayed for four months from date.

Banerjee, J.

28. I agree.


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