Skip to content


Joy Kissen Arora Vs. Raghunath Prosad Gupta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 888 of 1964
Judge
Reported inAIR1971Cal482
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 97; ;Rent Act; ;Calcutta Thika Tenancy Act
AppellantJoy Kissen Arora
RespondentRaghunath Prosad Gupta
Appellant AdvocateRoy, Adv.
Respondent AdvocateChatterjee, Adv.
Cases ReferredHenderson v. Squire
Excerpt:
- a.n. sen, j.1. this application under order 21, rule 97 of the code of civil procedure raises an interesting question of law of some importance. shortly put, the question is, whether the applicant decree-holder who has obtained against the defendant judgment-debtor ragunath prosad gupta a decree for vacant possession of the open plot of land which had been let out to the said ragunath prosad gupta, is entitled to evict the respondents who claim to he tenants under the said ragunath prosad gupta of portions of the structures built by the said judgment-debtor raghunath prosad gupta on the said open plot of land.2. the open plot of land in question belongs to the board of trustees for the improvement of calcutta and was held by gopekrishna arora, mulch and arora, radhakrishna arora and.....
Judgment:

A.N. Sen, J.

1. This application under Order 21, Rule 97 of the Code of Civil Procedure raises an interesting question of law of some importance. Shortly put, the question is, whether the applicant decree-holder who has obtained against the defendant judgment-debtor Ragunath Prosad Gupta a decree for vacant possession of the open plot of land which had been let out to the said Ragunath Prosad Gupta, is entitled to evict the respondents who claim to he tenants under the said Ragunath Prosad Gupta of portions of the structures built by the said judgment-debtor Raghunath Prosad Gupta on the said open plot of land.

2. The open plot of land in question belongs to the Board of Trustees for the improvement of Calcutta and was held by Gopekrishna Arora, Mulch and Arora, Radhakrishna Arora and Joykrishna Arora as lessees with an option to purchase the same. In a suit for partition between the Aroras, a receiver was appointed over their properties, including the laid in question. The land in question had been let out to one Reghunath Prosad Gupta who had built structures on the land and had inducted the respondents in the present proceeding as tenants in the said structures built by him. Proceedings had been started under Section 5 of the Calcutta Thika Tenancy Act, 1949 against the said Raghunath Prosad Gupta and after the appointment of the receiver in the partition suit of the Aroras, the said proceeding was continued by the receiver. The said proceeding ultimately came up before this Court in its Civil Revisional jurisdiction, (Civil Rule No. 258 of 1962) and a Division Bench of this Court held by its judgment delivered on the 12th of December, 1962 that the Calcutta Thika Tenancy Act had no application to the land in question and dismissed the proceeding under Section 5 of the Calcutta Thika Tenancy Act.

3. The plaintiff had thereafter instituted this suit for recovery of vacant possession of the land in question from the said Raghunath Prosad Gupta, after due determination of the tenancy. In the suit Raghunath Prosad Gupta who was the tenant of the open plot of land, was the only defendant. It appears from the nature of evidence adduced in the suit on behalf of the plaintiff, that the 'plaintiff' was aware of the fact that the defendant Raghunath Prosad Gupta had built structures on the said land and had inducted tenants therein. The suit was contested by the said defendant Raghnnath Prosad Gupta and a decree was passed in favour of the plaintiff in the suit on contest against the said defendant Raghunath Prosad Gupta for vacant possession of the said plot of land. The material portion of the decree reads-

'It is ordered and decreed that the defendant do deliver-up to the plaintiff quiet vacant and a peaceful possession of the plot of land now known and numbered as 86/1/1A, Purshottam Roy Street, Calcutta (hereinafter referred to as the said plot of land being premises No. 86/1/1A, Purshottam Roy Street, Calcutta) description whereof is stated in the Schedule hereunder written ................ '

4. An appeal had been preferred by the defendant against the said decree and there were certain other proceedings between the parties to the suit not very material for the purpose of the present application.

5. After various proceedings between the parties to the suit, the plaintiff decree-holder became entitled to execute the said decree for possession and the decree-holder caused the decree to be executed. In the process of execution of the decree, the Sheriff's Officer met with resistance which was offered by (1) Madhablal Palit, (2) Jagadish Prosad Gupta and (3) Manick Mohan Saha. The decree-holder has complained to this Court of the said resistance and has started this proceeding under Order 21 Rule 97 of the Code of Civil Procedure for investigation into the said resistance offered by the said Madhablal Palit, Jagdish Prosad Gupta and Manick Mohon Saha who happen to be the respondents in this proceeding.

6. It has been submitted on behalf of the respondents who have resisted execution of the decree that the decree is not binding on them and they cannot be evicted in execution of the decree from the portions of the structures which they are lawfully occupying as tenants under Raghunath Prosad Gupta. Mr. Chatterjee, Learned counsel appearing on behalf of the respondents, has argued that the subject-matter of the suit and the decree is the plot of land and not the structures thereon and the question of eviction of the respondents from their lawful possession of their portions of the structures is beyond the scope of the decree and it is his submission that as the structures do not form the subject-matter of the suit or of the decree, the decree cannot be executed against the structures and the respondents lawfully occupying the same. Mr. Chatterjee has submitted that the structures do not belong to the decree-holder and the plaintiff decree-holder with full knowledge of the fact of the building of structures on the land by Raghunath Prosad Gupta and his letting out the same to the respondents, has chosen not to mention the structures in the plaint or to include the same within the scope of the suit and the plaintiff has also not impleaded the respondents in this suit Mr. Chatterjee has contended that although the structures do not form any part of the subject-matter of the suit or the decree, the decree-holder is now seeking to proceed against the structures and to remove persons in lawful occupation of the structures. It is the contention of Mr. Chatterjee that the decree-holder in execution of the decree for possession of the land is seeking to recover possession and occupy the structures which do not belong to the decree-holder and which do not come within the purview of the decree. Mr. Chatterjee has commented that the decree-holder has no title to the structures and by trying to execute the decree against the persons in lawful possession of the structures, the decree-holder is trying to become the owner of the structures and it is his comment that what the decree-holder could not in law claim directly, he cannot be permitted to acquire indirectly by the process of illegal execution. Mr. Chatterjee has submitted that as the structures are not covered by the decree, any resistance offered by the respondents in lawful possession of the structures, cannot form the subject-matter of any proceeding under Order 21, Rule 97 of the Civil Procedure Code. Mr. Chatterjee has drawn my attention to prayer (b) in the present petition where the petitioner has asked for removal of the structures and Mr. Chatterjee has contended that the Court has no jurisdiction or power in this proceeding to order removal of the structures. Mr. Chatterjee, in this connection, has referred to the decision of this Court in the case of Radha Gobind Shaha v. Brijendro Coomar Roy Chowdhuri, reported in (1872) 18 Suth WR 527 and has relied on the following observations at page 528-

'Then there is the question whetherthe defendant's coach-house, which admittedly falls within the land decree, should be removed or not. The Courts below have refused to remove it upon the ground that there is no order in the decree which provided for pulling down the coach-house, and that its demolition consequently cannot be ordered in execution of the decree. The decree certainly is silent in the matter. But it is definitely a decree of khas possession by the plaintiff of the land in suit; and if it be necessary for the purpose of executing this decree to remove any of the defendants against whom the decree was made, who may refuse to vacate the land covered by the decree, the Court, on the application of the decree-holder, is authorised under Section 223 of the Code of Civil Procedure to remove any such person, and to deliver actual possession or the land to the plaintiff. In our opinion, it is hardly within the powers of the Court executing the decree to direct that the building should be pulled down: that is a matter for the decree-holder to consider after he has obtained possession.'

7. Mr. Chatterjee has argued that there is no decree against the respondents who were not parties to the suit and the respondents are lawful tenants under Raghunath Prosad Gupta in respect of the portions in their occupation; and Mr. Chatterjee argued that the said Raghunath Prosad Gupta could not evict the respondents from the said premises except in accordance with law and the respondents are entitled to the benefits of the statutory protection under the Rent Acts in any proceeding against them for ejectment. Mr. Chatterjee has contended that the respondents cannot be deprived of the benefit of the protection that the statute offers them in respect of their tenancy simply because the owner of the land has obtained a decree for possession of the land against his tenant and it is his contention that the said decree cannot be executed against them in a manner which will have the effect of taking away their lawful rights and of depriving them of their statutory protection. Mr. Chatterjee has drawn my attention to Section 108 of the Transfer or Property Act and to Subsection (h) thereof in particular which reads-

'The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth; provided he leaves the property in the state in which he received it.'

8. Relying on this provision Mr. Chatterjee has argued that the owner of the land acquires no title to the structures which belong to the judgment-debtor Raghunath Prosad Gupta and in execution of the decree the respondents who are in lawful possession of the structures as tenants under the owner of the said structures cannot be evicted and in execution of the decree for possession of the land the decree-holder cannot remove the persons in lawful occupation of the structures on the said land, as, according to Mr. Chatterjee, the decree does not direct taking possession of the structures to which the landlord has not got any title and cannot claim any. Mr. Chatterjee has further argued that in case it can be contended that the respondents became sub-tenants under the decree-holder as tenants of Raghunath Prosad Gupta, the said decree against Raghunath Prosad Gupta cannot be executed against them as the respondents had given due notice of the said fact of sub-letting to the owner and also to Raghunath Prosad Gupta. Mr. Chatterjee has contended that under the provisions of the West Bengal Premises Tenancy Act 1956, the said decree for possession against the tenant cannot be executed against the said respondents who had served due notice, without making the said respondents parties to the suit. Mr. Chatterjee submits that even assuming the respondents to be subtenants under the decree-holder, the decree cannot be executed to remove them from their lawful possession of the said portions of the structures and the respondents now become direct tenants under the decree-holder. Mr. Chatterjee contends that the respondents arc in lawful possession of the portion of the structures in their own right and are not liable to be evicted in execution of the decree against Raghunath Prosad Gupta and the resistance offered by them is just and lawful, Mr. Chatterjee has referred to the following decisions:--

1. Gayanath Ghosh v. Amulya Chandra Sarkar, reported in : AIR1957Cal252 ;

2. Sudhir Kumar Bose v. Phanindra Kumar Sanyal, reported in (1958) 62 Cal WN 176;

3. Debendranath Sarkar v. Sm. Parulbala Ghosh, reported in : AIR1953Cal233 .

9. Mr. Chatterjee has submitted that if the decree be held to be binding on the respondents and to be executable against them in respect of the portions of the structures under their lawful occupation as tenants and the respondents be evicted in execution of this decree, the respondents who have been occupying the said premises for a number of years as tenants, duly paying rents to Raghunath Prosad Gupta, will all be thrown on the streets for no fault of theirs and will suffer irreparable loss and injury. Mr. Chatterjee, therefore, submits that the decree should not be considered to be binding on the respondents and the respondents should not be evicted in execution of this decree.

10. Mr. Roy, learned counsel appearing on behalf of the decree-holder, has submitted that the decree is binding on the respondents and the resistance offered by the respondents to the execution of the decree is wrongful and illegal. Mr. Roy has argued that the Calcutta Thika Tenancy Act and the West Bengal Premises Tenancy Act have no application to the present proceeding. It is the submission of Mr. Roy that in the Civil Rule proceeding this Court has already decided that the Calcutta Thika Tenancy Act has no application to the land in question which is the subject-matter of the suit and the decree. Mr. Roy has argued that as the suit was one for recovery of possession of an open plot of land, the West Bengal Premises Tenancy Act has also no application and the subject-matter is entirely governed by the Transfer of Property Act. Mr. Roy has contended that the decree is one for vacant possession of the open plot of land and in execution of the decree the plaintiff decree-holder is entitled to get vacant possession of the land notwithstanding the fact of building any structures thereon by the tenants and inducting tenants therein. It is the contention of Mr. Roy that the decree-holder is not seeking to recover possession of the structures and if any structure has been built on any open plot of land by the tenant against whom a decree for possession has been passed, the tenant could easily have removed the structures from the land so long as he remained in possession of the structures. Mr. Roy refers to the provisions contained in Section 108(h) of the Transfer of Property Act and has contended that specific provision has been made as to what should happen in such a case when the tenant has built some structures on the land let out to him. Mr. Roy has also relied on the decision in the case reported in (1872) 18 Suth WR 527, and on the observations which have been earlier quoted. Relying on the said observations and the provisions contained in Section 108(h) of the Transfer of Property Act Mr. Roy has argued that it is no answer for the tenant to say that a decree for vacant possession of land cannot be executed against him as there are structures on the land for vacant possession of which the decree had been made. Mr. Roy has contended that to hold otherwise would not only defeat the express provision of the statute, but would make execution of any decree for vacant possession of land impossible as each and every tenant could raise some kind of a structure on the land and avoid execution of the decree on the ground that the decree cannot be executed as there are structures on the land. Basing his submission on the decision in the case reported in (1872) 18 Suth WR 527 Mr. Roy has argued that it is true that the structures admittedly fall within the land decreed and that the decree is silent in the matter, but it is distinctly a decree for vacant possession by the plaintiff of the land in suit, and if it be necessary for the purpose of executing this decree to remove the defendant against whom the decree was made or anybody claiming through him, who may refuse to vacate the land covered by the decree, the Court on the application of the decree-holder will remove all such persons and deliver vacant possession of the land to the decree-holder. Mr. Roy comments that it is not necessary for the Court executing the decree to make any pronouncement with regard to the structures or to direct the structures being pulled down or removed; and after vacant possession is obtained, if the structures be not removed by the judgment-debtor whilst in possession and be still there, it will be a matter for the decree-holder to consider as to what should be done to the structures after the decree-holder had obtained vacant possession of the land in execution of the decree. Mr. Roy has drawn my particular attention to the following observations of the Court in the said decision of (1872) 18 Suth WR 527 at P 528-

'But it is distinctly a decree for khas possession by the plaintiff of the land in suit; and if it be necessary for the purpose of executing this decree to remove any of the defendants against whom the decree was made, who may refuse to vacate the land covered by the decree, the Court on the application of the decree-holder, is authorised under Section 223 of the Code of Civil Procedure to remove any such person and to deliver actual possession of the land to the plaintiff. In our opinion, it is hardly within the province of the Court executing the decree to direct that the building should be pulled down: that is a matter for the decree-holder to consider after he has obtained possession. Any opposition or resistance being removed out of the way by proceedings under Section 223, it will remain open to him to do what he thinks proper in the matter.'

11. Mr. Roy has argued that the principle enunciated in the above decision applies with all force not only to tenants, but also to all persons deriving their title through the tenants, unless the title of such persons is otherwise protected by law. It is the contention of Mr. Roy that all such persons who derive or claim their title through the tenant cannot have any better or larger right than the tenant unless any such right is created or recognised by law. It is the submission of Mr. Roy that if a decree for vacant possession of land can be executed against the defendant by removing the defendant from the structures built by him on the land, although the decree may be completely silent on the question of the structures, there is no reason why persons who claim any right or title to remain in possession in the structure or portions thereof through the tenant cannot be removed there from in the absence of any special provision of law safeguarding the rights of such persons. Mr. Roy has submitted that under the Transfer of Property Act which governs the suit and its subject-matter, the decree for possession of the land in question is binding not only on the tenant but on all persons claiming any right or title through him and such persons cannot have or claim any higher right than the tenant himself. Mr. Roy has argued that the question of statutory protection under the Rent Acts does not arise in the instant case as the Rent Acts, either the Calcutta Tenancy Act, 1949 or the West Bengal Premises Tenancy Act, 1956, have no application. It is the argument of Mr. Roy that whether in a suit by Raghunath Prosad Gupta against the respondents for ejectment, any of the said acts would apply or not is an irrelevant question in the present proceeding, as in the present proceeding neither of the said acts has any application. Mr. Roy has submitted that it has already been decided by this Court that the Calcutta Thika Tenancy Act, 1949 has no application to the land in question and it is his submission that the West Bengal Premises Tenancy Act, 1956 has no application to an open plot of land which is the subject-matter of the proceeding. Mr. Roy has contended that the said open plot of land is not 'premises' within the meaning of premises as defined in Section 2(f) of the West Bengal Premises Act, 1956 and Raghunath Prosad Gupta is also not a tenant within the meaning of the said Act and it is the contention of Mr. Roy that as Raghunath Prosad Gupta is not a tenant within the meaning of the West Bengal Premises Tenancy Act, the provisions regarding the rights of sub-tenants under the tenants within the meaning of the West Bengal Premises Tenancy Act have no application and the respondents are not entitled to any benefit or protection of the said Act in the present proceeding. Mr. Roy has commented that as the provisions of the West Bengal Premises Tenancy Act, 1956 have no application in the instant case the question of giving any notice by the respondents to the plaintiff is immaterial and of noconsequence in law. He has also denied and disputed the factum of any such notice. Mr. Roy has submitted that by no process of law or logic the respondents can be said to have become the owners of the structures by virtue of the decree. The respondents as tenants under Raghunath Prosad Gupta must vacate along with him. The respondents cannot claim to have any right of occupation of the structures independent of the right of Raghunath Prosad Gupta and have to vacate along with him. Mr. Roy has also referred to the decision in the case of Raghuvami Private Ltd. v. Rupchand Gupta, reported in (1962) 66 Cal WN 1010.

12. A decree for vacant possession of an open plot of land let out to any tenant who may have constructed structures thereon cannot be rendered nugatory only on the ground that the decree directs vacant possession of the land, but on the land there are structures which are not covered by the decree. This position of law, to my mind, appears to be well settled. Section 108(h) of the Transfer of Property Act makes suitable provision to cover such cases. If any landlord lets out any open portion of land to any tenant who happens to build structures on the land, the tenant is at liberty to remove such structures during his continuance of possession thereof, in the event of his tenancy being duly determined and any decree for vacant possession of the land let out to him being passed against him and enforced by execution thereof. It is true that by getting a decree for vacant possession of the land, the landlord docs not acquire any title to the structures and docs not become the owner thereof. As structures do not vest in the landlord by virtue of any decree for vacant possession of the land on which the structures are built, the tenant who has built the structures has the right to remove the same from the land during the continuance of his possession thereof. If the tenant, however, does not choose to remove the structures during the period of his possession thereof and is evicted there from in execution of the decree, the tenant loses his right to remove the structures, not because of the landlord acquiring any title to the structures, but because the tenant does no longer have any right to enter upon the land and in such a case, the landlord who has in execution of his decree obtained possession of the land on which the structures arc situate, becomes competent to deal with the structures in any manner he chooses. The landlord acquires the right to deal with the structures according to his will, not because he acquires any right or title to the structures by virtue of the decree for vacant possession, but because the structures happen to remain on his land to which the tenant has no longer any right of access, after his eviction in execution of the decree; and the landlord after obtaining possession in execution becomes alone entitled to remain in possession. It is clearly not within the province of the Court to make any orders for demolition or otherwise of the structures which might have been erected by the tenant on the open plot of land let out to him, while ordering execution of the decree for vacant possession of the land, when the decree is silent on the question of the structures and it will be essentially a matter for the landlord to decide as to what he will do with the structures after obtaining possession of his land in execution of the decree, if the tenant does not choose to remove the structures in the meantime during the period he continues to remain in possession before being evicted in execution of the decree. Mere existence of structures built by the tenant on the open plot of land let out to him by his landlord, is no bar to the execution of the decree obtained by the landlord against his tenant for recovery of vacant possession of the land. The decision of the Division Bench of this Court in the case reported in (1872) 18 Suth WR 527 which has been relied on by both Mr. Chatterjee and Mr. Roy and to which reference has been made earlier, appears to support this proposition and the observations at page 528 of the report which I have earlier quoted, clearly supports to my mind, the view I take. In my opinion the tenant who is bound by the decree passed in favour of the landlord for vacant possession of the land, cannot resist execution of the decree on the ground that there are structures erected by him on the land, vacant possession of which, has been decreed. Any other view, in my opinion, will have the effect of rendering every decree for vacant possession of land nugatory, as the tenant by building some kind of a structure on the open plot of land let out to him, will succeed in frustrating execution of the decree.

13. It will be convenient at this stage to make a brief reference to the cases cited from the Bar.

14. In the case reported in : AIR1957Cal252 , Bachawat, J. held that a sub-tenant was bound by a decree for eviction of the tenant if the decree was based upon a ground which determined the said tenancy under Order 21, Rule 35 (1) of the Civil Procedure Code; but if on the other hand the sub-tenant claimed a statutory right to occupy the property independently of the tenant under the Rent Control Laws, the sub-tenant would not be a representative of the Judgment-debtor and would not bo bound by the decree for ejectment. The learned Judge observed at pages 167-168 of the report (Cal WN) = (at P. 253 of AIR) -

'The application raises interesting questions with regard to the practice relating to the execution of a decree for recovery of possession of immovable property obtained by a landlord against a tenant and the scope of Rules 35, 36 and 97 to 103 of Order 21, of the Civil Procedure Code.

Where the landlord decree-holder seeks to execute his decree for delivery of immovable property, he has to make up his mind whether he should ask for actual possession under Rule 35 (1) or symbolical possession under Rule 36 of Order 21 of the Civil Procedure Code. If he is prepared to say that the person in actual occupation is bound by the decree and has no right to remain in occupation of the property, he may proceed under Rule 35 (1) and obtain a warrant of possession in Form No. 11 of Appendix E with a general direction to the bailiff to remove any person bound by the decree who refuse's to vacate. If he is not prepared to say this, he has no business to ask for the assistance of the Court under Rule 35 (1). If the property is in the occupancy of some person who is entitled to occupy the same and is not bound by the decree to relinquish the occupancy, the decree-holder must proceed under Rule 36 and be content with an order of symbolical delivery of possession.

Under a warrant of possession issued under Rule 35 (1) in Form No. 11 of Appendix E, only a person bound by the decree may be removed from the property.

A sub-tenant is bound by the decree for eviction of the tenant if the decree is based upon a ground which determines the sub-tenancy and he may then be removed in execution of the decree under Rule 35 (1). (See Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarty, 49 Cal WN 133) = (AIR 1945 Cal 283). On the other hand, a sub-tenant, who claims a statutory right to occupy the property independently of the tenant under the Rent Control Laws, e.g. under Section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, is not a representative of a judgment-debtor and is not bound by the decree for ejectment and he may not, therefore, be removed in execution of a decree against the tenant, he is, therefore, entitled to resist execution of the warrant and if he is dispossessed he may apply under Rule 100 of Order 21 for restoration of possession. (See S. N. Talapatra v. Bengal Bonded Wirehouse, : AIR1953Cal598 . But he has no right to apply under Rule 97 of Order 21 for declaration of his right. (See Sukhan Singh v. Baijnath Goenka, (1908) 12 Cal WN 115). Section 11 (3) of the West Bengal Premises Rent Control (Temporary Provisions) Act 1948 or Section 13 (2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, gives him no right to intervene in the proceedings between the landlord and the tenant: (See Thakurdas Pushparaj v. Dwarka Prasad, (1951) 87 Cal LJ 181 and Bhupesh Chandra Dutta v. Dr. M. N. Bose, : [1953]4SCR1159 . He has no right to apply under Section 47 of the Civil Procedure Code for an adjudication of his rights and for a quia timet order restraining his removal and his remedy is to institute a separate suit for adjudication of his rights. (See Nityananda Kapuria v. Parbati Nath Dutta, (1954) 58 Cal WN 407 and Khetramohan Manimohan Saha v. Parbaty Nath Dutta, : AIR1955Cal295 . At the same time this Court has also held that Order 21 provides a complete procedure for the protection of his rights and that ordinarily he should adopt that procedure and not the procedure of a separate suit for such protection and for injunction. (See Narendra Krishna Bose v. Great Eastern Hotel Ltd., : AIR1951Cal394 , and sec also Rajani Kanta Das v. Daval Chandra Das, : AIR1950Cal244 .)

If the execution of the warrant of possession is resisted and the decree-holder is prepared to say that the resistance is by the judgment-debtor or by some persons bound by the decree or at their instigation, he may apply under Rule 97 complaining of the resistance.'

The learned Judge then proceeds to consider the question of granting Police help for effecting execution of the decree and observes at p. 169 (of 61 Cal WN) = (at p. 254 of AIR)-

'On a petition under Order 21, Rule 97, the decree-holder may obtain an order that he be put in possession of the property. If he is still resisted by the party he may obtain a further order for the detention of such party in Civil prison under Rule 98 read with Form No. 41 of Appendix E. These orders do not bind persons who are not parties to the procedure.

If the decree cannot be effectively executed without police help the decree-holder may apply to the Court for the grant of such help. An application for police help is essentially different from an application under Order 21, Rule 97 though the two applications are often joined in one petition. This Court has framed special rules for dealing with applications for police help (See Manual of the Court of Small Causes, Calcutta, Volume II, Part 4, Chapter IV, page 54, Rule 261; Original Side Rules, Chapter 17, Rules 14-A to 14-D).

An order for police help vitally affects all persons in actual possession of the property. With the powerful backing of such an order all persons in actual possession whether they are bound by the decree or not are likely to be evicted brevi manu from the property summarily. Relief by way of restoration of possession obtained by an application under Order 21 Rule 100 is poor consolation for a person who is unlawfully dispossessed. The Court should, therefore, proceed with great caution in granting police help. The Court should not hesitate to give such aid if execution of its process is unlawfully obstructed and its process cannot be executed without such aid. But where there is a bona fide claim by an occupant that he is not bound by the decree and as such is entitled to resist eviction in execution of the decree the Court may and should decline to give such aid until his claim is negatived in appropriate proceedings. : AIR1953Cal233 ; and Sew Sankar Lal v. Bojoy Krishna Dutta, : AIR1953Cal218 ). The claimant is vitally affected by an order for police help and is entitled to be heard on an application praying for such help. The Court has unfettered discretion and ample power to do justice. The Court may examine any person it thinks fit and hear him. If necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. The decree-holder is under a duty to disclose full facts. An order for police help obtained improperly or by suppression of material facts is liable to be set aside. (See Jagat Lakshmi Dasi v. Golam Hossain, : AIR1953Cal218 ).

15. The case reported in (1958) 62 Cal WN 176 was mainly concerned with the question of a valid and effective surrender by a tenant of the premises let to his landlord and in dealing with this question this Court held that where the tenant was restrained by his statutory laws, i.e. Rent Restrictions Acts from evicting the sub-tenant, the tenant was not even liable to damages when he was unable to give up vacant possession on the expiry of the notice for the determination of the lease. Sen, J. , at page 181 of the report quotes the following observations which have been relied on by Mr. Chatterjee, from the decision in the case of Regional Properties Ltd. v. Frankenschwerth (1951-1 All ER 178)-

'Under the common law, it is clear enough that if a tenant contracts to deliver up possession at the end of a lease and then by his own act puts somebody into the place as a sub-tenant or licensee and that latter person does not go out when the term ends, the tenant is liable in damages (at any rate, unless he shows that he has taken all reasonable and proper steps to get rid of the intruder), the measure of damages being, as was stated in Henderson v. Squire, ((1869) 4 QB 170) by Cockbxim, C. J. and Blackburn, J. a sum to compensate the landlord for loss of rent while he was getting the intruder out and the costs he was put to in getting the intruder out.'

The learned Judge then proceeds to observe:

'This is the ordinary law in England as well as in India and Mr. Dutt has not been able to place any clear ruling to the contrary to show that the law was different in India or particularly in Calcutta High Court. Both the English and Indian cases have held that this common law has been further modified as the result of the rent restriction Acts because such Acts make it statutorily impossible for the tenant to evict the sub-tenant and give vacant possession. Where the tenant is thus restrained by the statutory laws from evicting the sub-tenant it has been held that the tenant is not even liable to such damages when he is unable to give up possession on the expiry of the notice for the determination of the lease.'

The learned Judge further holds at pages 181-182 of the report-Section 13 (2) of the West Bengal Premises Rent Control Act, 1950, which was in force when the notice of determination was given lays down that when any premises has been sub-let by a tenant of the first degree if the tenancy of such tenant is lawfully determined otherwise than by virtue of a decree obtained by the landlord for reasonable requirements, the sub-lessee shall be deemed to be a tenant in respect of such premises held directly under the landlord on terms and conditions on which the sublessee would have held under the tenant if the tenancy of the tenant had not been determined; in other words, normally the subtenant to be recognised as the tenant of the first degree would be liable to pay the same rate of rent as he was paying.'

16. In the case reported in : AIR1953Cal233 , Roxburgh, J. held that where a landlord had obtained orders for recovery of possession of premises from his tenant and on seeking to carry out the orders was opposed by sub-tenant alleging that he had some right under the new West Bengal Premises Rent Control (Temporary Provisions) Act, the Court should not drag in the police and go on providing the landlord with further and more powerful weapons to force the sub-tenant out and leave him then to apply to Court under Order 21, Rule 100; and in such a case the sub-tenant was perfectly entitled to draw the attention of the Court to the effect that he had a claim under the new Rent Control Act to ask the Court not to give further assistance to the landlord in carrying out the Court's order in respect of the premises occupied by the subtenant, but insist that the landlord makes an application under Order 21, Rule 97 so that the question of the right of the subtenant may be properly determined by the Court.

17. The other decision cited from the Bar is the case reported in (1962) 66 Cal WN 1010. This decision was essentially concerned with the question of fraudulent and collusive nature of a decree. The landlord Raghubansi Private Ltd. had filed a suit against its lessee Land and Bricks Ltd. for possession of a vacant plot of land and had obtained a decree. The sub-lessee Roop-chand Gupta had challenged the validity of the decree on the ground of fraud and collusion and had filed a suit for a declaration that the sub-lessee was still a tenant of the land under the lessee and was not liable to be ejected under a decree for ejectment obtained by the landlord against the lessee and for an injunction restraining the landlord from evicting the sub-lessee in execution of the decree. One of the issues in the suit was--'Was the plaintiff bound by the decree dated 11th May, 1966 passed in suit No. 3283 of 1955?' It may be noted that certain structures had been built on the open plot of land and were in existence at the time the decree for possession had been made in favour of the landlord against the tenant. The learned trial Judge had passed a decree in favour of the sub-lessee in his suit. An appeal was preferred against the judgment and decree of the learned trial Judge and the Court of Appeal set aside the decree passed by the trial Court and dismissed the suit. The Court held at page 1020-

'On an anxious consideration of the matter I have come to the conclusion that the plaintiff has failed to establish that the decree in suit No. 3283 of 1955 was procured collusively. It follows that the plaintiff is bound by the decree in that suit,

I have, therefore, come to the conclusion that the learned trial Judge wrongly decreed this suit. In my judgment the decree passed by the trial Judge should be set aside and the suit should be dismissed.' Bachawat, J. who delivered the judgment of the Court of Appeal also observed at page 1018-

'Land and Bricks Limited has now no interest in the land and consequently the plaintiff has now no interest in the land either as tenant of Land and Bricks Limited or otherwise.

The next question is whether the ex parte decree for ejectment obtained by Raghubansi Private Limited against Land and Bricks Limited is binding upon the plaintiff. As the ground of ejectment was that a valid notice to quit had been served by Raghubansi Private Limited on Land and Bricks Limited and if this notice effectively determined not only the lease but also the sub-lease, the decree for ejectment is binding-upon the plaintiff sub-lessee and can be executed against him though he was not a party to the suit in which the decree was passed, unless he succeeds in showing that the decree was vitiated by fraud or that the lessee Land and Bricks Limited collusively suffered the decree to be passed against it. (See 49 Cal WN 133 (141) = (AIR 1945 Cal 283 (291-292))'. It may be noted that an appeal had beenpreferred to the Supreme Court from the decision of the Court of Appeal and the decision of the Supreme Court is reported in AIR 1984 SC 1889. The Supreme Court upheld the decision of the Court of Appeal and observed at page 1892-

'It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sublease. The law allows this and so the omission cannot be said to be an improper act,'

18. These decisions, to my mind, are not of any particular assistance in the facts of the present case. In the instant case, the question for determination is whether the decree for vacant possession of land obtained by the petitioner against Raghunath Prosad Gupta to whom the open plot of land had been let out, can be executed against the respondents who claim to be tenants under the said Raghunath Prosad Gupta in respect of portions of the structures built on the said land by Raghunath Prosad Gupta. If the decree in question can be executed against the respondents and if they are liable to be evicted in execution of the decree, the resistance offered by the respondents must be considered to be unlawful and the petitioner will be entitled to the necessary relief. The existence of the structures, as I have already observed, is no bar to the execution of the decree for vacant possession of the land against Raghunath Prosad Gupta against whom the decree has been passed and who is clearly bound by the decree. The question is, whether the respondents who are not parties to the suit, are bound by the decree and arc liable to be evicted in execution of the decree from the portions of the structures under their occupation. It is well settled that a sublessee who derives his right, title and interest from the lessee, generally loses his right, title and interest with the due determination of the right of the lessee by a valid notice to quit and is usually bound by a decree for possession against the lessee, although he is not a party to the suit, unless the decree is fraudulent or collusive or unless the right, title and interest of the sub-lessee are, otherwise, preserved by some law in force.

19. In the instant case, notwithstanding the existence of the structures on the land, the decree for vacant possession of the land is clearly binding on Raghunath Prosad Gupta; as I have already observed, the existence of the structures is no bar to the execution of the decree for vacant possession of the land against him. What will happen to the structures erected by him, whether he would be entitled to remove them during his possession of the land of the same will vest in the landlord on his eviction from the land and what the landlord may do with the structures on recovery of possession of the land from him, will be of no consideration in the matter of execution of the decree against him. The respondents who claim to be tenants under the said Raghunath Prosad Gupta, can have no greater or better right than the said Raghunath Prosad Gupta, unless any such right has been conferred on them by law. The respondents can claim no right to the structures or to remain in possession thereof independently of the right of the said Raghunath Prosad Gupta, unless any such right is conferred on them by any law. The subject-matter of the suit and the decree is the open plot of land and the West Bengal Premises Tenancy Act, 1956 has no application. The said Raghunath Prosad Gupta had become a tenant of the open plot of land and he was not and could not be a tenant as defined in Section 2 00 of the said Act. As the said Raghunath Prosad Gupta was not a tenant within the meaning of the West Bengal Premises Tenancy Act, 1956, the respondents cannot be considered to be sub-tenants within the meaning of Section 13 of the said Act and cannot claim any benefit under the said section. The West Bengal Premises Tenancy Act, 1956 has no application in the instant case; and as the said Act has no application, the respondents cannot invoke the same and cannot claim any protection or benefit there under. Whether in any suit for possession by the said Raghunath Prosad Gupta as landlord against the respondents as his tenants, the West Bengal Premises Tenancy Act could have been, invoked by the respondents or not, is immaterial in considering the right of the landlord to recover possession of his land in execution of the decree obtained in a suit by him for vacant possession of his land from his tenant. As the West Bengal Premises Tenancy Act has no application to the suit filed by the landlord and its subject-matter of dispute, the respondents can claim no protection or benefit there under in the instant case. It has already been noticed that the Calcutta Thika Tenancy Act, 1949 has no application in the instant case. The right of the respondents to remain in possession of the structures in the instant case, therefore, cannot and does not enjoy the protection of any of the said Statutes. The respondents in the instant case, therefore, do not have any right to remain in occupation of the structure independently of the right of Raghunath Prosad Gupta. With the determination of the light of Raghunath Prosad Gupta the right of the respondents must necessarily come to an end. The respondents must, therefore, be held to be bound by the decree. As such they are liable to be evicted in execution of the decree against Raghunath Prosad Gupta and the resistance offered by them is unlawful.

20. In the facts of the instant case I have no hesitation in coming to the conclusion that the respondents were bona fide tenants under Raghunath Prosad Gupta of the portions of the structures in their possession and they have remained in occupation of the said portions as such tenants under him. The order for their eviction in execution of the decree against the said Raghunath Prosad Gupta is likely to cause a good deal of hardship to them. In the eye of law they must be held to have entered into possession of the portions of their structures with not only their rights but also the risks and liabilities on such occupation. The risk of their being thrown out of their occupation for no fault of theirs with the eviction of Raghunath Prosad Gupta on due determination of his tenancy from the said plot of land was always there and the respondents must be held to have entered into their respective possession with the necessary risk appertaining to such occupation. Now that they have become exposed to the said risk and are to be evicted, they will undoubtedly suffer great hardship and inconvenience, particularly in these days. In the facts of the instant case I consider it only proper that the respondents should have a reasonable time to remove themselves to some other place.

21. There will, therefore, be an order in terms of prayer (b) directing the Sheriff of Calcutta to put the petitioner in vacant possession of the properties in suit in execution of the decree by removing the respondent there from. It is made clear that there is no order with regard to the removal of the structures. The order will be drawn up expeditiously. The order, however, will not be given effect to till the 15th of May of 1971 to enable the respondents to take appropriate steps in the meantime. In the particular facts of this case I do not propose to make any order as to costs, particularly in view of the fact that the respondents will be put to a great deal of hardship for no fault of theirs,

22. Certified for counsel.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //