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Nishikanta Roy Vs. Monmohon Sen Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberAppeal from Appellate Decree No. 2374 of 1969
Judge
Reported inAIR1973Cal529,77CWN424
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantNishikanta Roy
RespondentMonmohon Sen Gupta
Appellant AdvocatePrafulla Kumar Roy and ;Ramaprasanna Bagchi, Advs.
Respondent AdvocateSudhis Das Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredLala Shri Bhagwan v. Ram Chand
Excerpt:
- .....7-a. it is argued by mr. p. k. roy, learned advocate appearing on behalf of the appellant that the word 'owner' in clause (ff) should not be understood in the sense of absolute ownership which is an aggregate of component rights such as the right of possession, the right of enjoying the usufruct of land and so on. a person who is the owner of all these rights is an absolute owner. but a person who possesses only some of these rights is also an owner. in the instant case, the landlord of the plaintiff before he leased out the 'premises to the plaintiff was the absolute owner of the property, but after he parted with some of his rights in favour of the plaintiff, that is, after he granted a lease of the disputed property to the lessee, he cannot be said to be an absolute owner, for.....
Judgment:
ORDER

M.M. Dutt, J.

1. This appeal is at the instance of the plaintiff and it arises out of a suit for eviction of the defendant from the suit premises on the ground of reasonable requirement of the plaintiff of the same.

2. The case of the plaintiff is that the plaintiff had been a tenant of the first degreein respect of two flats, each flat consisting of two bed rooms. In terms of a decree for eviction passed against the plaintiff on May 30, 1966, the plaintiff was to vacate one flat and to deliver possession thereof to his landlord. Out of said two bed rooms in the remaining flat, the defendant had been a tenant of the plaintiff in respect of one bed room. The plaintiff's family consists of himself, his wife, one son, three unmarried daughters and a maid servant. It is alleged that the plaintiff reasonably requires the suit premises, namely, the said bed room in the occupation of the defendant. The plaintiff determined the tenancy of the defendant by the service of a notice to quit, but the defendant not having vacated the same, the plaintiff instituted the present suit. The defendant contested the suit and denied the plaintiff's requirement of the suit premises.

3. The learned Munsif came to the finding that the plaintiff reasonably required the suit premises. In spite of the said finding, the learned Munsif could not decree the suit in favour of the plaintiff on the ground that the plaintiff was not the owner of the suit premises and as such the suit was not maintainable at the instance of the plaintiff for his personal requirement in view of Section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956. The suit was accordingly dismissed by the learned Munsif.

4. On appeal by the plaintiff, the learned Subordinate Judge affirmed the finding of the learned Munsif that the plaintiff reasonably required the suit premises, but the learned Subordinate Judge took the same view that the plaintiff not being the owner of the suit premises, the suit was not maintainable at his instance on the ground of reasonable requirement for his own occupation. In that view of the matter, the learned Subordinate Judge dismissed the appeal. Hence, this second appeal.

5. Section 13 (1) (f) as it stood before it was amended runs as follows :

'Where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held.'

6. Clause (f) was substituted by Clause (f) and Clause (ff) by the West Bengal Premises Tenancy (Second Amendment) Act 34 of 1969. We are concerned with the substituted Clause (ff) which runs as follows:

'Subject to the provisions of Sub-section (3-A) where the premises are reasonably required by the landlord for his own occupation if he is the owner or for occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation.'

7. Both under Clause (f) before it was amended and the substituted Clause (ff), the landlord must be the owner when he requires the premises for his own occupation. The question is whether the plaintiff who is a lessee of the suit premises can be said to be the owner of the suit premises within the meaning of Clause (ff).

7-A. It is argued by Mr. P. K. Roy, learned Advocate appearing on behalf of the appellant that the word 'owner' in Clause (ff) should not be understood in the sense of absolute ownership which is an aggregate of component rights such as the right of possession, the right of enjoying the usufruct of land and so on. A person who is the owner of all these rights is an absolute owner. But a person who possesses only some of these rights is also an owner. In the instant case, the landlord of the plaintiff before he leased out the 'premises to the plaintiff was the absolute owner of the property, but after he parted with some of his rights in favour of the plaintiff, that is, after he granted a lease of the disputed property to the lessee, he cannot be said to be an absolute owner, for admittedly he does not possess all the rights but some of these rights have been transferred to the lessee. In such circumstances, both the landlord of the plaintiff and the plaintiff should be said to be the owners. In this connection, Mr. Roy refers to the following statements in Article 46 at page 254 of the 12th Edition of Salmond's Jurisprudence :--

'As a general rule a thing is owned by one person only at a time, the duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them.........'

Relying on the above statements it is contended that a lessee and his landlord should both be considered as owners of the property leased.

8. In support of his contention that a lessee should also be regarded as the owner of the property leased Mr. Roy relies on a decision in Lister v. Lobley, (1837) 112 ER 417. In that case, by a Turnpike Road Act, trustees were authorised to enter upon and take certain lands, and to pull down certain houses, buildings, etc., 'making or tendering satisfaction to the owners or proprietors of all private lands, houses, buildings,' etc., so taken, 'for any loss or damage they may sustain thereby;' and it was also provided, that they should not be authorised to take other buildings, etc., without the consent 'of the owners or proprietors thereof, or other persons interested therein.' It was held that compensation was to be made, in the case of premises taken under the former clause, not only to the owner of the fee simple in the lands and buildings, but also to lessees of the same for terms of years. In coming to the finding that the lessees should also be given the compensation, Lord Denman, C. J. observed that the words 'owner or proprietor'have no definite legal meaning; that they may refer to owners having either the whole, or partial interests and that the person having a partial interest can recover in no character except that of owner or proprietor.

9. It is submitted by Mr. Roy that ownership also means limited ownership and not absolute ownership in every case. It is contended that if the term 'owner' is held to refer to a person having absolute ownership, in that case, it may render the provisions of a statute' unworkable. By way of illustration Mr. Roy refers to Sections 35 and 44 of the Transfer of Property Act which also use the term 'owner' and submits that if the word 'owner' is construed to mean an absolute owner, there would be difficulties in applying the provisions of these two Sections. Mr. Roy also refers to a decision of the Supreme Court in C. Beepathuma v. Shankarnaniyana, : [1964]5SCR836 , where the Supreme Court held a mortgagee as hit by the doctrine of election.

10. It is, however, contended by Mr. Sudhish Das Gupta, the learned Advocate for the respondent that the word 'owner' in Clause (ff) means an absolute owner. Mr. Das Gupta does not dispute that ownership is an aggregate of component rights, but he submits that even though an owner parts with some of his rights, for instance, when he grants a lease of the property, he does not cease to be the owner of the property. He relies on the following statements in the 11th Edition of Salmond's Jurisprudence at page 302 under Article 90 :--

'The right of an owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees, and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet he nonetheless remains the owner of the thing, while all others own nothing more than rights over it.'

11. In support of his contention that even after the grant of a permanent lease, the owner remains the owner of the property leased, Mr. Das Gupta also relies on a decision in Kally Das Ahiri v. S. M. Monmohini Dassi, (1897) 1 Cal WN 321 which was approved by the Privy Council in (1910) 14 Cal WN 1 (PC). In Kally Das Ahiri's case it has been observed by Jenkins, J. that a man who being the owner of the land grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his own interest; that this result is to be inferred by the use of the word 'lease' which implies an interest still remaining in the lessor; that before the lease the owner had the right to enjoy the possession of the land and by the lease he excludes himself during its currency from that right, but the determination of the lease is a removal of that barrier and that there is nothing to prevent the enjoyment from which he had been excluded by the lease.

12. The point, therefore, is what is the true import and meaning of the words 'owner' and 'ownership'. Both the learned Advocates have relied on certain statements from Salmond's Jurisprudence which have been already referred to. In my opinion, those statements are isolated statements and they do not convey the view of Salmond as to the meaning of the word 'owner' or 'ownership'. In the 7th Edition of the Jurisprudence at page 367, Salmond expressed his view as follows :

'Ownership in its most comprehensive signification, denotes the relation between a person and any right that is vested in him That which a man owns in this sense is in all cases a right.'

13. The above view of Salmond was maintained upto the 11th Edition of Salmond's Jurisprudence. According to Salmond ownership is incorporeal. It is always a right. If ownership is understood in the sense that it is a right, then, when two persons have certain rights in a thing, can it be said that both of them are owners? When the rights are the same or equal rights, both the persons are joint owners of the thing. This finds support from the statements relied on by Mr. Roy from Salmond's Jurisprudence referred to above. But when the rights are different and unequal, namely, one having lesser rights than the other, both the persons cannot be regarded as owners in view of the well established principles of jurisprudence that 'ownership has the characteristic of being indeterminate in duration' and that 'ownership has a residuary character.' The rights of the owner when contrasted with the lesser rights of the possessor and the encumbrancer, 'the owner's rights are indeterminate and residuary in a way in which these other rights are not.' (See 12th Edition pages 247-248). So in the case of persons having unequal rights in a thing, the person whose rights are indeterminate and residuary, is the owner of the thing and not the other persons who have no such rights or have only lesser rights.

14. We may now consider the views of R. W. M. Dias on the question of ownership. After referring to the views of Salmond and other Jurists Dias comes to the conclusion that a person is owner of a thing when his interest will outlast the interests of other persons in the same thing. This is substantially the conclusion reached by many modern writers, who have variously described ownership as the 'residuary', the 'ultimate', or 'the most enduring interest'. An owner may be divested of his claims, etc., to such an extent that he may be left with no immediate practical benefit. He remains owner nonetheless. This is because his interest in the thing, which is ownership, will outlast that of other persons, or if he is not presently exercising any of his claims, etc., these will revive as soon as those vested in other persons have come to an end. In the case of land and chattels, if the owner is not in possession, ownershipamounts to a better right to obtain the possession than that of the defendant. It is 'better' in that it lasts longer (See Dias on Jurisprudence, 3rd Edition pages 369-70). It is apparent that the above view of Dias substantially agrees with that of Salmond. According to Dias it is the outlasting interest; according to Salmond ownership has the characteristic of being indeterminate in duration and residuary in nature.

15. Considering the question from the point of view of 'the most enduring interest' which will outlast the interests of other persons in a thing, it seems that a lessee of a property who has sub-leased the same in favour of another is not an owner, for, obviously the interest of the lessee is not the most enduring interest and it will not outlast the interest of his lessor in the property. His right is not better in that it does not last longer. It is apparent from the illustration relied on by Mr. Das Gupta from the 11th Edition of Salmond's jurisprudence referred to above, that the right of the owner of a thing may be all eaten up by the dominant rights of lessees, mortgagees and other encumbrancers, yet he nonetheless remains the owner of the thing, for his interest outlasts the interest of the other persons mentioned above.

16. The expression 'if he is the owner' in Clause (ff) of Section 13 (1) refers to the ownership of the premises. The question is not who is the owner as between the lessee and his sub-lessee, but the question is who is the owner of the premises. Applying the above principles of jurisprudence it cannot be said that the lessee is the owner of the premises.

17. The observations of Jenkins, J. in Kally Das Ahiri's case (1897) 1 Cal WN 321 referred to above, are based on the legal principle that ownership is the 'residuary', the 'ultimate' or the 'most enduring interest'. The construction put on the word 'owner' by Lord Denman, C.J. in (1837) 112 ER 417 seems to be founded on equitable consideration which is apparent from the observation of Lord Denman that 'it would be inconvenient and unjust if the trustees were required to make satisfaction to the tenant in fee 'for any loss or damage' which another party might sustain'. In my opinion, the decision in (1837) 112 ER 417 has not laid down any legal principle, but as aforesaid, it is based on equitable consideration. This decision, therefore, does not support the contention of Mr. Roy that the lessee of a property may be said to be the owner of that property.

18. Next, I may consider the contention of Mr. Roy with reference to the provisions of Sections 35 and 44 of the Transfer of Property Act wherein the word 'owner' also finds place. It is argued that if the word 'owner' is understood in terms of absolute ownership, it would create difficulties in the application of these two provisions. We are, however, not concerned with the interpretation of the word as used in other enactments. The word 'owner' used in a particular statute may have a different connotation depending on the language of the provisions of the statute concerned, the context in which the word is used and the intention of the legislature. In the absence of any contrary intention of the legislature, which has to be gathered from the provisions of the statute, the meaning of the word as attributed to it in legal jurisprudence should be accepted. The decision of the Supreme Court in : [1964]5SCR836 relied on by Mr. Roy, did not involve any point as to the interpretation of the word 'owner' occurring in Section 35 of the Transfer of Property Act. In that case, the Supreme Court applied the equitable doctrine of election.

19. The question may now be considered with reference to the intention of the legislature in using the expression 'if he a the owner' in the unamended Clause (f) or in the new Clause (ff) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956. Under the previous Act, namely, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the ground of ejectment for the reasonable requirement of the landlord or for the purpose of building of re-building is contained in Clause (h) of Section 12 (1). Clause (h) runs as follows:--

'Where the premises are reasonably required by the landlord either for purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the premises are held: provided that all sub-tenants in the premises are made parties to the suit, and allowed opportunity of contesting claim to decree for ejectment.'

There is an explanation under Clause (h) but that is not necessary for our present purpose.

20. Under Section 2 (4) of that Act, 'landlord' means any person who for the time being is receiving the rent of any premises from the tenant thereof and includes any person who is entitled to bring a suit for such rent.

21. Thus it appears that under the 1950 Act a lessee who was the landlord of his sub-lessee, was entitled to sue the sublessee on the ground of reasonable requirement for his own occupation By the insertion of the words 'if he is the owner' in the unamended Clause (f) or the new Clause (ff) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956, the intention of the legislature is to prevent the lessee from suing his sub-lessee on the ground of his own occupation, for the lessee is not the owner of the premises. Mr. Roy, however, submits that the intention is to exclude the trustees, executors, administrators and the guardians of minors who are, strictly speaking, not owners, but they are landlords within the definition of the term under both the Acts, and that these persons were entitled to claim eviction of their tenants for their personal requirement under the 1950 Act. I am unable to acceptthis contention. Under Section 12 (1) (h) of the 1950 Act quoted above, one of the grounds for ejectment is the requirement of the premises for the own occupation of the landlord or 'for the occupation of any person for whose benefit the premises are held'. In view of the expression, 'for the occupation of any person for whose benefit the premises are held', in my opinion, it was not at all possible for these persons, namely, the trustees, executors, administrators etc., to institute suits for eviction of their tenants for their own occupation. The said expression is also there in the unamended Clause (f) and in the new Clause (ff) of Section 13 (1) of the West Bengal Premises Tenancy Act, 1956. Under the 1950 Act, therefore, these persons could sue their tenants only for the occupation of the persons for whose benefit the premises are held by them and not for their own occupation. Thus, it is apparent that by the insertion of the words 'if he is the owner' the legislature intends to exclude the lessees from claiming eviction of their sublessees on the ground that the premises are reasonably required by them for their own occupation.

22. The word 'owner' in the unamended Clause (f) has since been interpreted and construed by a Division Bench of this Court consisting of P. N. Mookerjee and A. K. Dutt, JJ. in Yogamaya Pakhira v. Santi Sudha Bose, ILR (1968) 2 Cal 70. It has been held that the word 'owner' must be given its ordinary connotation or dictionary or usual meaning, that is, a person having full and absolute ownership of the premises and that a lessee and even a permanent lessee cannot be said to be the owner within the meaning of Clause (f). The said decision has been followed in the subsequent Bench decision in Caritt Moran and Co. (P) Ltd. v. Ronio Ltd.. ILR (1969) 1 Cal 347. The above Bench decisions are binding on me and I am bound to follow the same.

23. In ascertaining the intention of the legislature another significant fact pointed out by Mr. Dag Gupta is worth consideration. Long after the aforesaid Bench decisions of this Court in Yogamaya Pakhira's case ILR (1968) 2 Cal 70 and Caritt Moran's case ILR (1969) 1 Cal 347, Clause (f) was amended by the West Bengal Premises (Second Amendment) Act (West Bengal Act XXXIV of 1969) and in place of Clause (f). Clause ff) and Clause (ff) were substituted. In the substituted Clause (ff), the expression 'if he is the owner' were retained. It is contended by Mr. Das Gupta that it should be presumed that the legislature was aware of the construction put on the word 'owner' by this Court in the aforesaid Bench decisions and that the legislature having chosen to retain the said expression, it should be held that the legislature accepted the construction as made in the aforesaid Bench decisions, for, if the legislature was of a different view, it would have expressed itself by a suitable amendmentof the provisions of Clause (f) by the said Amendment Act. In my opinion, there is considerable force in the contention of Mr. Das Gupta and it finds support from a decision of the Supreme Court in Ahmed G. H. Ariff v. The Commr. of Wealth Tax, Calcutta (See : [1970]76ITR471(SC) ). It has been laid down by the Supreme Court in that case that where the legislature uses a legal term which has received judicial interpretation, the Courts must assume that the term has been used in the sense in which it has been judicially interpreted. So, in view of the above Supreme Court decision, it must be assumed that the legislature used the word 'owner' in the expression 'if he is the owner' in the same sense as construed by this Court, in the aforesaid Bench decisions.

24. Mr. Roy, however, submits that a person who is an absolute owner of a property ceases to be the absolute owner after he grants a lease of the property, for he cannot be said to possess aft the component rights of ownership. By the lease, the right to enjoy the possession of the property leased is transferred to the lessee. As observed by Jenkins, J. in Kally Das Ahiri's case (1897) 1 Cal 321 referred to above, the owner only excludes himself from that right during the currency of the lease, but the determination of the lease is a removal of that barrier and there is nothing to prevent the enjoyment from which he had been excluded by the lease. It, therefore, follows that even by the grant of a lease, the owner does not cease to be the absolute owner of the property leased, but he remains the same subject to the right of the lessee. In any event, he is the owner of the property leased within the meaning of Clause (ff) of Section 13 (1) and the lessee cannot be regarded as the owner of the property.

25. Lastly, on the authority of Young v. Bristol Aeroplane Co. Ltd., (1944) 1 KB 718, it is argued by Mr. Roy that as in the aforesaid two Bench decisions the effect of the provisions of the West Bengal Estates Acquisition Act, 1953 have not been considered, the Bench decisions have no binding force on me. It has been laid down in that decision that the Court of appeal is bound to follow its own decisions and those of Courts of co-ordinate jurisdiction, and the full Court is in the same position in this respect as a division of the Court consisting of three members. The only exceptions to this rule are-

(1) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow;

(2) the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords;

(3) the Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam e.g., where astatute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier Court.

26. Exceptions 1 and 2 are not relevant for our present purpose. Relying on exception 3 it is argued by Mr. Roy that the Bench decisions referred to above did not consider the effect of the provisions of the West Bengal Estates Acquisition Act, 1953. It is contended that under Sections 4 and 5 of the said Act all lands have vested in most part of the State of West Bengal and that the intermediaries who were the proprietors before such vesting now hold their lands and buildings as tenants under the State and not as absolute owners thereof. Mr. Roy submits that this important statutory effect not having been considered in the Bench decisions referred to above, I may refuse to follow the same if I accept the proposition based on the effect of vesting under the West Bengal Estates Acquisition Act.

27. The word 'premises' has been defined in Clause (f) of Section 2 of the West Bengal Premises Tenancy Act, 1956 as 'premises' means any building or part of a building or any hut or part of a hut let separately and includes the gardens, grounds, out-hotises, if any, appertaining thereto. The word 'premises', therefore, primarily means a building. But what vests under Sections 4 and 5 of the West Bengal Estates Acquisition Act, 1953 is land and not any building. Under Section 6(1)(b) of the said Act, the intermediary can only retain the land comprised in or appertaining to a building. At the same time, the land on which the building stands belongs to the State and the intermediary having retained the land is only a tenant of the land under the State.

28. It is, however, not necessary for me to decide the question for the reasons stated hereafter. It has been held by me on the authority of the decision of the Supreme Court in : [1970]76ITR471(SC) referred to above, that the legislature used the word 'owner' in the same sense as interpreted by this Court in the aforesaid Bench decisions. Secondly, in view of the decision of the Supreme Court in Lala Shri Bhagwan v. Ram Chand, : [1965]3SCR218 , it is neither possible nor desirable on my part to consider the correctness or otherwise of the above two Bench decisions which are binding on me. In that case, it has been observed by the Supreme Court as follows:--

'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.'

Thirdly, I have come to the same conclusion as held in the above Bench decisions that a lessee is not the owner of the premises within the meaning of the expression 'if he is the owner'.

29. For the reasons aforesaid, I hold that the suit at the instance of the lessee for the eviction of his tenant on the ground of reasonable requirement for his own occupation, was not maintainable. In the circumstance, the judgment and decree of the lower appellate Court are affirmed and the appeal is dismissed, but I direct each party to bear his own costs both in the courts below and in this Court.

30. Leave to appeal under Clause 15 of the Letters Patent is prayed for on behalf of the appellant which is granted.


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