Sudhindra Mohan Guha, J.
1. This is an appeal by the plaintiff whose suit for a declaration that the decree passed in Ejectment Suit No. 79 of 1958 between Radharani Dasi v. Augurbala Dasi was not binding upon the plaintiff nor executable against him and for permanent injunction, was dismissed by the learned Court below.
2. The case of the plaintiff was as follows :--
The father of the plaintiff Late Chanchal Das was originally a tenant in respect of a shop room in the ground floor of premises No. 107A, Durga Charan Mitra Street, under the original owner Mohanlal Dey at a rental of Rs. 20/- per month and on his death in the year 1956 the plaintiff, who was only son inherited the tenancy of the shop room and had been carrying out coal business therein. The rent of the room was gradually increased up to Rs. 30/- per month with electric charges of Rs. 3/- per month. But in the year 1360 B. S. the entire suit premises with all the existing tenancies were leased out by Mohanlal Dey to defendant No. 3 Angurbala Dasi. On 20-9-1957 Mohanlal Dey transferred the entire suit premises by sale to the defendant No. 1 Radharani Dasi and defendant No. 2 Binapani Dasi along with the existing tenancies including the tenancy of the plaintiff. Defendants Nos. 1 and 2 instituted an ejectment Suit No. 79 of 1958 in the City Civil Court against the defendant No. 3 and obtained a decree on 9-9-1963. The plaintiff challenged the decree as nullity and not binding against him. The right of the plaintiff was said to be protected under the law and he could not be evicted in execution of that decree.
3. Thus, ejectment decree was put into execution by Ejectment Execution Case No. 360 of 1966 and the plaintiff lawfully resisted the Court's bailiff on his independent right. The defendants Nos. 1 and 2 however, filed an application under Order 21 Rule 97 C. P. Code against the plaintiff and other tenants. It was found by the Court that it was not possible to accept the plaintiff as a tenant under the original landlord Mohanlal Dey. Hence present suit.
4. The defendants Nos. 1 and 2 contested the suit on a written statement. They denied that the father of the plaintiff was a tenant under Mohanlal Dey and they also denied that the plaintiff was the only son of his father. Their case was that on 20-9-1957 they purchased the premises No. 107A, Durga Charan Mitra Street, Calcutta, with the only tenant Angurbala Dasi in respect of the entire premises at a rental of Rs. 200/- per month. On determination of tenancy they brought a suit for ejectment against Angurbala. It was further contended thatfrom the documents filed in Misc. Case No. 137 of 1968 it transpired for the first time that the plaintiff's father Chanchal Das was a Sub-tenant under Kali Dassi, the sister and predecessor in title of Angurbala, who was the judgment-debtor in the ejectment decree. The plaintiff being a Sub-tenant was said to be bound by the decree passed in the ejectment suit, according to the provisions of the West Bengal Premises Tenancy Act, 1956.
5. The learned Judge on trial held that the plaintiff miserably failed to establish that he was a direct tenant under Mohanlal Dey, the original owner of the premises. The plaintiff's next case is that he was governed by the Act of 1950 and even if he be taken to be a Sub-tenant, he would be deemed to be a direct tenant under Sub-section (2) of Section 13 of the Act of 1950. The plaintiff's such contention was also overruled by the learned Court below on the ground that the plaintiff had failed to notify of such sub-tenancy under Section 16 of the West Bengal Premises Tenancy Act, 1956. Accordingly, the suit was dismissed.
6. Being aggrieved by the said judgment and decree the plaintiff has come up in appeal.
7. Mr. Santosh Nath Sen, the learned Advocate for the appellant contends at the outset that the learned Court below fell into an error in rejecting the plaintiff's contention that he was a direct tenant under Mohanlal Dey. The plaintiff came up with the case that his father Chanchal Das was the original tenant in respect of the suit room under the original owner Mohanlal Dey for about 30 years and by inheritance the plaintiff got the tenancy. The plaintiff Ram Khilan Das who examined himself as P. W. 1 stated in his examination-in-chief that his father used to pay rent for the room in suit 1o one Kalidasi Bariwali. Then he stated that on the death of Kalidasi, the owner of the house, Mohanlal Dey realised rent from his father for about a year. But the plaintiff failed to produce a scrap of paper in evidence of such direct tenancy under Mohanlal Dey. The receipts granted by Mohanlal Dey were said to have been lost. The plaintiff's own witness P. W. 2 Gopinath Dutta, who claimed to be a Sub-tenant also admitted in cross-examination that Kalidasi Bariwali was a tenant of the first degree in respect of the entire suit house and afterwards Angurbala became the tenant of the entire house in suit. It was also the case of the plaintiff in evidence that Mohanlal Babu had asked him and other Sub-tenants to pay rent to Angurbala and accordingly they had been paying the rent to Angurbala. Thus, on the evidence on record the learned trial Judge was not prepared to hold that in between the date of death of Kalidasi and the date of lease in favour of Augurbala, the plaintiff had paid rent to the original owner for about a year. On hearing the arguments of both the sides and also on the materials on record we cannot persuade ourselves to hold that the learned trial Judge in any way, committed an error in answering this issue against the plaintiff. The findings of the learned Court below on this score, therefore, must be upheld. 8. Mr. Santosh Nath Sen, the learned Advocate for the appellant refers to Section 40 of the West Bengal Premises Tenancy Act, 1956 which repeals the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 but Clause (b) of Sub-section (2) of Section 40 of the Act provided that any proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment under the 1950 Act relating to the period before such repeal might be instituted or enforced as if the Act was in force and had not been repealed or had not expired. It is argued by him that undisputedly the plaintiff or for the matter of that his father Chanchal Das was a Sub-tenant long before Act of 1956 had come into operation. The Sub-tenancy in favour of Chanchal Das in the opinion of Mr. Sen, having been created before the coming into operation of the said Act, Section 13 (1) (a) of the said Act does not apply as that consent in writing was not necessary. It is also contended that under the 1950 Act subletting of a major portion entailed the liability upon the tenant to be ejected from the portion which he had sublet and the right was conferred upon the landlord to eject him from such portion. On the other hand, the tenant got the right to remain, if he agreed to remain in that portion which he had not sublet. According to Mr. Sen, both the rights and liabilities had been retained in spite of repeal in the 1950 Act. For the principle that Section 13 (1) (a) applies only to post Act Sub-tenancies Mr. Sen refers to the decision in Radharani Dasi v. Angurbala Dasi, reported in (1961) 65 Cal WN 1119 at p, 1121. He also refers to the decision of a Division Bench of this Court in Appeal From Original Decree No. 496 of 1961 in the case of Janab Ghulam Hossain v. Sk. Mohammad Omer, (unreported) judgment dated 1st August, 1967. In that case their Lordships alsoheld that in the case of the Sub-tenancies created before coming into operation of the Act 1956, Section 13 (1) (a) of the said Act did not apply, as that consent in writing was not necessary. So it is contended by Mr. Sen that the interest of the Sub-tenant, that is, of the plaintiff was protected under the provision of the Act 1950 and he would be deemed to be a direct tenant of the first degree under Sub-section (2) of Section 13 of the Act of 1950. Section 13 of the Act of 1950 contemplates that where any premises have been sublet by a tenant of the first degree and the Sub-lease is binding on the landlord, if the tenancy of such tenant is determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in Clause (h) of the proviso to Sub-section (1) of Section 12, the Sub-lessee shall be deemed to be a tenant holding directly under the landlord of the tenant whose tenancy has been determined. Clause (h) of the proviso to Sub-section (1) of Section 12 of 1950 Act relates to the case where the premises are reasonably required by the landlord for the purpose of building or re-building or for his own occupation. It is also contended that undisputedly the decree against Angurbala was not obtained on the ground of reasonable requirement but for subletting. In this view of the matter, it is contended that the plaintiff must be considered as a direct tenant under Radharani and Binapani under the provisions of old Act 1950.
9. It is contended by Mr. Ashoke Sen-gupta, the learned Advocate for the respondents Nos. 1 and 2 that the suit for ejectment against Angurbala was brought under Section 13 (1) (a) of the West Bengal Premises Tenancy Act 1956 for having sublet, the portions of the suit premises to tenants both before and after commencement of the Act of 1956; but the plaintiff who claimed to have occupied a portion of the suit premises as a subtenant before the commencement of the Act of 1956 failed to give notice to the landlord of Sub-letting under Sub-section (2) of Section 16 of the West Bengal Premises Tenancy Act 1956. The provision according to him is mandatory and in the absence of any notice under Section 16 the landlord was under no obligation to implead such Sub-tenant as a party to the suit for an ejectment against the tenant of the first degree. Thus, according to him, the decree for ejectment passed against the defendant No. 3 Angurbala was binding against the plaintiff who claimed to be a Sub-tenant under her.
10. In this case Angurbala, defendant No. 3 was the tenant of first degree under the defendants Nos. 1 and 2 namely, Radharani and Binapani. As the plaintiff or for the matter of that his father Chanchal Das possessed the shop room in suit under a Sub-lease from before 1956 did not require any consent of the landlord Mohanlal Dey and such Sub-lease in favour of Chanchal Das in terms of Section 13 (2) of the Act of 1950 was binding upon the landlord. Admittedly, the tenancy of Angurbala was determined not by reason of the ground of reasonable requirement. Accordingly her Sub-tenant the present plaintiff must be deemed to be a tenant in respect of such shop room holding directly under the landlords i. e., defendants Nos. 1 and 2 of the tenant. Angurbala whose tenancy had been determined on terms and conditions on which the Sub-lessee would have held under the said Angurbala, if the tenancy of the latter had not been so determined. Such creation of direct tenancy would be by operation of law that is, under the provisions of Act of 1950 which had not been repealed. The date of commencement of direct tenancy of the plaintiff would be the date of the determination of the tenancy of the defendant No. 3.
11. It is argued by Mr. Sengupta that the protection under Sub-section (2) (b) of Section 40 cannot override the mandatory provision under Section 16 of the West Bengal Premises Tenancy Act, and the appellant having failed to serve the notice as required under Section 16 of the Act could not be allowed to agitate the decree against Angurbala defendant No. 3 was not binding on him. Thus the decree being binding on him he was liable to be ejected, in execution of the decree against Angurbala. No doubt it was obligatory on the Sub-tenant to serve notice under Section 16, after the Act of 1956 had come into operation but if such a Sub-tenant fails and neglects to do so certain legal consequences would follow. It is not the case of the either party that any order under Section 16 (3) of the Act was passed. As a result, it must be held that the Sub-tenancy of the appellant did not cease and his rights and obligations under Section 12 (1) (c) and Section 13 (2) of the Act of 1950 continued as before.
12. Mr. Santosh Nath Sen, the learned Advocate for the appellant places before us the judgment of Chittatosh Mookenee, J. in Civil Rule No. 1922 of 1974 between Samad Mistri v. Sk. Muhammad Omer (unreported) in whichhis Lordship held that the right of sub-tenant under the proviso to Section 12 (1) (c) read with Section 13 (2) of the Act of 1950 was a vested one and the West Bengal Premises Tenancy Act 1956 did not either expressly or by implication deprive the said right of the Sub-leases of a tenant against whom a decree under Section 12 (1) (c) would be passed. His Lordship said further that no order under Section 16 (3) of the Act having been made, Sub-tenants in question did not cease and rights and obligations of subtenants under Section 12 (1) (c) and Section 13 (2) of the 1950 Act remained unimpaired. We are fully in agreement with the views expressed by Chittatosh Mookherjee, J.
13. In the result, the decree passed against Angurbala, defendant No. 3 was not binding on the appellant Bachawat, J. also held in Gaya Nath Ghose v. Amulya Chandra Sarkar (1957) 61 Cal WN 164 that 'a Sub-tenant, who claims a statutory right independently of the tenant is not a representative of a judgment-debtor and he is not bound by the decree for ejectment passed against the tenant.'
14. Thus in view of the foregoing findings we would hold in agreement with Mr. Sen that the appellant had an independent right to be in possession of the shop room in suit.
15. In the result, the appeal is allowed, but in the circumstances of the case without costs. The judgment and decree passed by the learned court below is set aside. The plaintiff's suit is decreed and he would be entitled to the reliefs sought for in terms of prayers made in (b) and (c) of the plaint. Respondents 1 & 2 will be at liberty to withdraw the deposit made by appellant.
N.C. Mukherji, J.
16. I agree