JUDGMENT
1. This is a suit for recovery of vacant possession of premises No. 146, Upper Chitpur Road, now renumbered and renamed as No. 468, Rabindra Sarahi, Calcutta fully described in the plaint schedule at Annexure-A, as also for mEsne profits at the rate of Rs. 150/- per diem which is tentatively assessed at Rs. 18,000/- for the period from 2nd July, 1987 up to 29th October, 1987 and alternatively for enquiry into compensation payable for use and occupation of the premises and a decree therefor. Interim interest and interest on judgment have also been prayed for in the plaint.
2. Plaintiffs case is that the leasehold right of the said premises belonged to plaintiffs mother Smt. Indu Prabha Roy Chowdhury, since deceased, by virtue of a deed of lease which was renewed from time to time including by the one dated 12th May, 1958, executed by the then Chief Manager of the Dacca Nawab Court of Ward Estate for a period of 15 years on terms and conditions as fully described in the said deed. Plaintiffs further case is that by a registered indenture of sub-lease dated 25th May, 1966 Suit. Indu Prabha Roy Chowdhury leased out the said premises to the defendant No. 1 for a perjod of 21 years commencing from 1st July, 1966 on terms and conditions, inter alia, that Smt. Indu Prabha Roy Chowdhury would apply for and obtain renewal of lease from the head-lessor, that the defendant No. 1 would pay to Smt. Indu Prabha Roy Chowdhury the premium of Rs. 11,000/- in instalment in the manner provided in the deed, that Smt. Indu
Prabha Roy Chowdhury would invest the same in a fixed deposit and would withdraw the same after obtaining renewal of the lease from the head lessor, that the defendant No. 1 would pay monthly rent of Rs. 400/- to Smt. Indu Prabha Roy Chowdhury, that the defendant No. 1 would be entitled to sublet the demised premises or any part thereof and that the defendant No. 1 would deliver back the demised premises to Smt. Indu Prabha Roy Chowdhury on the expiry of the terms of the lease. It has been stated that Smt. Indu Prabha Roy Chowdhury died on 26th July, 1968 leaving a Will dated 27th January, 1968 which was duly probated whereupon the plaintiff, the daughter of Smt. Indu Prabha Roy Chowdhury has become absolute owner of all the properties, both movable and immovable including the leasehold right of the said premises demised to the defendant No. 1. It is plaintiffs case that the plaintiff duly informed the defendant No. 1 that the plaintiff had succeeded to the leasehold right of Smt. Indu Prabha Roy Chowdhury since deceased and upon being so informed the defendant No. 1 duly attorned to the plaintiff as his landlady and remained in possession. Subsequently the plaintiff allegedly applied for and obained renewal of the lease from the then head lessor, Ruchi Ranjan Sen in respect of the said premises and withdrew the amount of premium in the manner as provided in the lease deed. It is plaintiff’s case that the defendant No. 1 inducted the defendant No. 2 as a sub-tenant in respect of the said premises for the period stipulated in the indenture of lease dated 25th May, 1966 and as a result defendant No. 2 is bound by the terms and conditions contained in the indenture of lease dated 25th May, 1966. It is plaintiff’s case that the period of lease for 21 years to the defendant No. 1 expired on 1st July, 1987 and accordingly the defendant No. 1 or any one inducted by the defendant No. 1 into the said premises is under an obligation to give vacant possession of the suit premises to the plaintiff by and on 2nd July, 1987. By advance notices dated 16th May, 1987 the plaintiff duly called upon the defendant No. I and defendant No. 2 separately to handover the demised premises to the plaintiff as the lease was to
determine by efflux of time but in spite of the notices and subsequent demand the defendants failed and neglected to handover vacant possession and wrongfully and illegally remained in possession as trespassers. And hence is the suit for recovery of possession and mesne profits.
3. If appears that in spite of service by jegistered post, as also by substituted service by affixing a copy of the plaint on the notice board and newspapers publications, the defendant No. 1 has not come forward to contest the suit. The defendant No. 2 however contests the suit by filing a wrilten statement and alleging, inter alia, that the defendant No. I having died on 3rd November, 1973, the suit has been brought against a dead person and not maintainable. It has been alleged that the plaintiff is aware of the death of the defendant No. 1 and in spite of such knowledge the plaintiff brought the suit against the deceased defendant No. 1. In this connection the defendant No. 2 has also stated that such report of the defendant No. 1 was duly submitted in suit No. 472 of 1974 brought by Ruchi Ranjan Sen against the present plaintiff and others by the present defendant No. 2 as defendant No. 2 of that suit and accordingly the present plaintiff cannot deny knowledge of the death of the present defendant No. 1. The defendant’s further case is that the suit premises being governed by the West Bengal Premises Tenancy Act, the plaintiff is not entitled to any decree of recovery of possession and that no valid notice to quit was served upon the defendant No. 2. The entitlement as to mesne profits as claimed by the plaintiff and all other allegations of the plaintiff have also been denied by the defendant No. 2.
4. Upon pleadings of the parties the following issues have been framed. ISSUES 1. Is the suit maintainable? 2. Is the plaintiff lessor or superior landlord of the the suit premises ? 3. What is the relation between the plaintiff and the defendants in respect of the disputed premises? 4. Is the defendant No. 1 dead? If so, whether the cause of action survives against the defendant No. 2? 5. Is the plaintiff entitled to recover Khas possession of the suit premises on the eviction of the defendant No. 2 ? 6. Is the plaintiff entitled to recover mesne profits.as prayed for in the plaint. ? 7. What relief, if any, is the plaintiff entitled to? Findings with reasons therefore Issue Nos. 1 and 4 :
5. These two issues are taken up together. Under these issues the question that falls for determination is whether defendant No. 1 was dead when the suit was filed and accordingly the suit, at least as against the defendant No. 1 is bad in law or not. In the plaint the defendant No. 1 is described as Manik Chand Jahuri. In the indenture of sub-lease, dated 25th May, 1966 between Smt. Indu Prabha Roy Chowdhury, mother of the plaintiff and defendant No. 1 (Exhibit-C) the sub-lessee is described as Manik Chand Jahuri, son of Shew Prasad Jahuri. In the unregistered deed of agreement dated 25th September, 1967 between the defendant No. I and the defendant No. 2 (Exhibit-L), the sub-lessee is described as Manik Chand Jahuri, son of Shew Prasad Jahuri and the lessee as Smt. Santi Devi (defendant No. 2), wife of Sri Manmal Karel. The power of attorney dated 25th September, 1967 executed by Manik Chand Jahuri in favour of Sri Manmal Karel, husband of the defendant No. 2, also describes Manik Chand Jahuri as a son of late Shew Prasad Jahuri. It appears that defendant No. 2 has exhibited a death certificate dated 10-4-1979 (Exhibit-7) which shows one Manik Chand Soni having died on 3rd November, 1973. Defendant No. 2 has not examined herself. She has, however, examined her son Babu Lal Soni who has tried to say that the said Manik Chand Soni whose death certificate has been produced is no other person than the defendant No. I Manik Chand Jahuri. But there is absolutely no evidence, worth the name, on_record to show that Manik Chand Jahuri and Manik Chand
Soni is the identical person. On the other hand, from the evidence of plaintiff’s husband it appears that a few months shortly after obtaining the sub-lease, the defendant No. 1 to the knowledge of the plaintiffs mother inducted defendant No. 1 and after executing the power of attorney in favour of the husband of the defendant No. 2, defendant No. 1 left the city for the State of Rajasthan as he was not economically well.off and physically ill. Further it appears that the advance notice to quit dated 16th May, 1978 (Exhibit-1) informing determination of the lease with the expiry of 1st July, 1987 and asking for making over vacant possession was also addressed to Manik Chand Jahuri at his given address and sent by registered post. Plaintiff’s husband has stated that the A/D Card which came back has been misplaced. The copy of the notice (Exhibit-1) has gone into evidence without objection. The defendant No. 2 has also introduced into evidence a tetter dated 25th May, 1977 from the Sabitri Devi Jahuri to defendant No. 2 (Exhibit-6) which has been objected, to before being admitted into evidence. In support of the said letter nobody on behalf of the said alleged wife or any of the heirs and successors of Manik Chand Jahuri has come forward to state on oath in support of the contention that Manik Chand Jahuri. was also known as Manik Chand Soni and he died on 3rd November, 1973 as per copy of the death certificate (Exhibit-7). There were newspaper publications in two important dailies, one in English and other in Hindi, calling upon defendant No. 1 or anybody on his behalf to contest the suit but nobody made any appearance. In such circumstances, the only conclusion that can be drawn is that the defendant No. 2’s assertion that Manik Chand Jahuri is also known as Manik Chand Soni and the death certificate is in respect of defendant No. 1 turns out to be a myth and in the result the suit, in so far defendant No. 1 _is concerned survives. The issues are accordingly answered in plaintiffs favour.
Issues Nos. 2, 3 and 5 :
6. These three issues are taken up together for convenience.
7. In answer to questions Nos. 65 to 67
contesting defendant No. 2's son Babu Lal Soni, the only witness for the defendant adduced the following evidence :
Q. 65 -- Do you have any interest in premises No. 468, Rabindra Sarani today?
No.
Q. 66 -- What about Santi Devi Soni, your mother?/No. She has no interest.
Q. 67 -- If Maitrali Mukherjee takes over the possession of the premises you do not have any objection?/No. We went many times to meet Maitrali Mukherjee for surrendering this.
8. These evidence obviously clinch the
issues which are accordingly answered in
plaintiffs favour.
Issue No. 6:
9. The contesting defendant has contended that the plaintiff is not entitled to any mesne profit on the ground that there is no privity of contract between the plaintiff and the defendant No. 2, nor any privity of estate between them in absence of a.ny assignment by the defendant No. 1 to and in favour of defendant No. 2 in respect of the suit premises. The rate of mesne profits claimed at Rs. 150/- per diem is also challenged as baseless and exaggerated.
10. There is no denial that on 25th May, 1966 plaintiff’s mother executed a sub-lease in favour of the defendant No. 1 in respect of the entire suit premises for a period of 21 years commencing from 1st July, 1966. By an agreement in writing dated 25th September, 1967 (Exhibit-1) the defendant No. 1 inducted the defendant No. 2 as his tenant in respect of the entire suit property. On the same day the defendant No. 1 executed a power of attorney (Exhibit-5) in favour of the husband of the defendant No. 2. A copy of the deed of lease dated 25th May, 1966 is annexed to the plaint from which it appears that the lease for 21 years was granted at a monthly rent of Rs.400/-. The agreement dated 25th September, 1967 (Exhibit-1) reiterates that as the defendant No. 1 was not in a position to continue the lease due to financial and other difficulties, the defendant No. 2 was being
inducted into the suit premises at a monthly rent of Rs. 400/- to be paid directly to the head lessor, that is to say, to plaintiffs mother and such payment should be deemed to be a valid discharge of payment of rent by the defendant No. 2 to the defendant No. 1. It was further provided that the defendant No. 2 was entitled to sublet or transfer the tenancy in part but shall fulfil all the obligations of the defendant No. 1 under the registered lease dated 25th May, 1966 for and in the name of defendant No. 1 including payment of rent. The said agreement read together with the power of attorney executed by the defendant No. 1 in favour of the husband of defendant No. 2 unmistakably point out that the defendat No. 1 divested himself of all the benefits and liabilities under the registered lease and intended that the defendant No. 2 would step into his shoes so far rights and liabilities under the lease is concerned. That being so the deed of lease and power of attorney constitute assignment and accordingly the defendant No. 2 cannot now be allowed to contend that she has no obligation to perform the term of the lease, namely to make over vacant possession upon expiry of the lease as is provided in the lease deed. It does not appear that the defendant No. 2 at any point of time after expiry of the lease and in spite of the notice to quit having been served upon her showed any intention to make over possession of the suit premises to the plaintiff. On the contrary by contesting the suit since i987 the defendant No. 2, a trespasser on the suit premises since expiry of the lease has made herself liable for payment of mesne profits or compensation for illegal use and occupation of the suit premises for all these years. In this connexion, learned Advocate appearing for the defendant No. 2 relying upon the commentary of Mr. Mulla under S. 108, CL (J) of the Transfer of Property Act (page 699 and 703 of the 7th Edition) submitted that there is no privity of contract and privity of estate between the sublessee and head lessor unless there is absolute assignment, Mr. Mulla said the lessor can enforce payment of rent from the lessee by privity of contract, as also from the assignee of the lessee by privity of estate but against the
sub-lessee or mortgagee he cannot do so. Reliance was placed on the decision in Kumar Raj Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd., to highlight the point that the presumption under S. 116 of the Evidence Act 1872 which lays down “that no tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy no title to such immovable property”. In the cited decision it was held that section 116 does not lay down all kinds of estoppel which may arise between the landlord and the tenant, that it deals with simple estoppel that postulates that there is a tenancy still continuing and the principle of the section does not apply to disentitle a tenant to dispute the derivative title of a reversioner and in that sense the principle only applies to the original landlord who “let the tenant in” as distinct from any other person claiming to be dereversioner. “Nor does the principle apply”, the decision laid down, “to prevent a tenant from pleading that the title of the original lessor has since come to an end.” But in the instant case the sub-lessee, the defendant No. 2 through oral evidence had admitted title of the head lessor including the right to take over possession and that being so, the decision is clearly inapplicable.
11. On the other hand on behalf of the plaintiff reliance has been placed on the decisions of Smt. Charu Bala Basu v. German Gomes ; Mahabir Prasad Lohia v. Karan Chand Thapar, and Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96 to highlight that a tenant cannot challenge his landlord’s title, however defective it may be, so long he has not openly restored possession by surrender to his landlord. In this case, however we are concerned with whether plaintiff is entitled to recover mesne profits from the defendant No. 2 for the period the defendant No. 2 is in illegal possession of the suit permises. It is in evidence that the defendant No. 2 was made liable to pay rent of the same amount which the defendant No. 1 undertook to pay by virtue of the registered deed of lease. it is also
in evidence that by inducting a large number of sub-tenants the defendant No. 2 made profits far in excess of her liability without paying anything to the plaintiff since the expiry of the lease. Even after expiry of the lease, service of notice to quit in advance, and filing of the suit the defendant No. 2 has not made over possession and instead has been making profits. In such circumstances it will be a travesty of justice defendant 2 is not made liable to pay mesne profits to the plaintiff for her illegal occupation of the suit premises. Regarding the rate of Rs. 150/- per diem, it is in evidence that Jhe property is situated”at a very busy locality of Calcutta. It is a big building fetching huge rents to the defendant No. 2 and in that view the rate of mesne profits as has been claimed cannot be said to be an exaggerated sum or baseless. In my view the plaintiff is entitled to recover mesne profits at the rate of Rs. 150/- per diem and accordingly, the tentative mesne profits of Rs. 18,000/- that has been assessed for the period from 2nd July, 1987 up to 29th October, 1987 is liable to be allowed.
12. The issue is answered accordingly in plaintiffs favour.
Issue No. 7 :
13. In the result the suit succeeds in full.
14. Therefore, it is ordered that the suit be decreed on contest against defendant No. 2 and ex parte against defendant No. 1 with cost. Plaintiff do recover Khas possession of the suit premises by evicting persons in occupation therein. Plaintiff do also recover from the defendant No. 2 mesne profits at the rate of Rs. 150/- per diem. Tentative mesne profits of Rs. 18,000/- for the period from 2nd, July, 1987 up to 29th October, 1987 is allowed. Plaintiff do recover the said sum from the defendant No. 2.
15. Order accordingly.