Swadesh Ranjan Sinha vs Haradeb Banerjee on 3 October, 1991

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Supreme Court of India
Swadesh Ranjan Sinha vs Haradeb Banerjee on 3 October, 1991
Equivalent citations: 1992 AIR 1590, 1991 SCR Supl. (1) 245
Author: T Thommen
Bench: Thommen, T.K. (J)
           PETITIONER:
SWADESH RANJAN SINHA

	Vs.

RESPONDENT:
HARADEB BANERJEE

DATE OF JUDGMENT03/10/1991

BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
SAHAI, R.M. (J)

CITATION:
 1992 AIR 1590		  1991 SCR  Supl. (1) 245
 1991 SCC  (4) 572	  JT 1991 (4)	 67
 1991 SCALE  (2)802


ACT:
West Bengal Premises Tenancy Act, 1956:
    Sections  2	 and 13(1)(ff)-Eviction	 of  tenant-Premises
allotted  by  sub-lease rented	out-Whether  allottee  owner
entitled to evict the tenant ownership - Meaning of.



HEADNOTE:
    The	 appellant-plaintiff rented out to  the	 respondent-
defendant  the suit premises allotted to him, by  sub-lease,
by  a  Housing Co-operative Society, which itself  held	 the
flat  under  a 99 years lease granted  by  the	Metropolitan
Development Authority. Sometime later he issued a notice  of
termination of the tenancy to the respondent and called upon
him  to	 vacate the premises within a  stipulated  time.  On
respondent's failure to vacate the premises, he/instituted a
suit on grounds of default of payment of rent and reasonable
requirement  for  occupation under Sections  13(1)  (i)	 and
13(1)(ff) respectively. The trial court decreed the suit  on
the  ground  of	 reasonable requirement but  held  that	 the
respondent tenant was not in arrears of rent.
    On	appeal by the respondent, the first appellate  court
did  not  examine  the merits of the  appellant's  claim  of
reasonable  requirement, but examined  the  appellant-plain-
tiff's	title, though the respondent had not questioned	 the
same  and held that, since the appellant was only  a  lessee
under a 99 years lease granted by the Society, which  itself
was a lessee holding a 99 years lease from the	Metropolitan
Development  Authority,	 he was not an	'owner'	 within	 the
meaning of Section 13(I)(II) of the Act and was,  therefore,
not entitled to seek eviction under that provision. The High
Court  also did not examine the appellant's claim for  evic-
tion and affirmed the first appellate Court's finding on the
question of title. Hence the appeal by the  appellant-plain-
tiff.
    On the question: whether the appellant was the owner  of
the suit premises for the purpose of instituting a suit	 for
eviction  in terms of the West Bengal Premises Tenancy	Act,
1956.
246
Allowing the appeal, this Court,
    HELD:  1.1	Ownership  denotes the	relation  between  a
person	and  an	 object forming the  subject-matter  of	 his
ownership. It consists in a complex of rights, all of  which
are right's in rem, being good against all the world and not
merely against specific persons. [249 G]
Salmond	 on Jurisprudence, 12th ed. Ch. 8, p. 246  et.	seq.
referred to.
    1.2	 There are various rights or incidents of  ownership
all of which need not necessarily be present in every  case.
They may include a right to possess, use and enjoy the thing
owned;	and  a right may be indeterminate  in  duration	 and
residuary in character. A person has a right to possess	 the
thing which he owns, even when he is not in possession,	 but
only  retains  a  reversionary interest, i.e.,	a  right  to
repossess  the thing on the termination of a certain  period
or on the happening of a certain event. [249 G-H; 250 A]
    1.3 All that a plaintiff needs to prove is that he has a
better	title than the defendant. He has no burden  to	show
that  he has the best of all possible titles. His  ownership
is  good  against all the world except the true	 owner.	 The
rights	of  an owner are seldom absolute, and often  are  in
many  respects	controlled  and regulated  by  statute.	 The
question,  however,  is whether he has a superior  right  or
interest vis-a-vis the person challenging it. [250 B]
    1.4	 In the instant case, the appellant-plaintiff is  an
allottee in terms of the West Bengal Co-operative  Societies
Act,  1983.  He has a right to possess the  premises  for  a
period of 99 years as a heritable and transferable property.
During	that period he has a right to let out  the  premises
and enjoy the rental income therefrom, subject to the statu-
tory  terms and conditions of allotment. The certificate  of
allotment is the conclusive evidence of his title or  inter-
est.  No doubt he has to obtain the written consent  of	 the
Society before letting out the premises. But once let out in
accordance  with  the terms of allotment  specified  in	 the
statute, he is entitled to enjoy the income from the proper-
ty. Although he is a lessee in relation to the society,	 and
his rights and interests are subject to the terms and condi-
tions of allotment, he is the owner of the property having a
superior  right in relation to the defendant. As far as	 the
respondent  is concerned, the appeliant is his landlord	 and
the owner of the premises for all purposes dealt with  under
the provisions of the Act. [250 C-E]
    1.5 Hence. the High Court and the first appellate  court
were  wrong in setting aside the decree of the	trial  court
solely on the question of
247
appellant's title, which was never an issue at any stage  of
the  trial.  There was no plea to that effect and  no  issue
was,  therefore,  framed  on the question.  This  being	 the
position,  the	appellant's claim has to be decided  on	 the
basis  of  the pleadings, i.e. on the basis that he  is	 the
owner  of the premises in question. Accordingly,  the  Judg-
ments  of the High Court and first appellate court  are	 set
aside  and the matter remanded to the first appellate  court
for fresh disposal of respondent-tenant's appeal on  merits.
[250 E-G]



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4075 of 1991.
From the Judgment and Order dated 3.12.1990 of the
Calcutta High Court in Second Appeal No. 1063 of 1982.
D.N. Mukherjee, N.R. Choudhary and Ranjan Mukherjee for
the Appellant.

Manoj Swarup, Ms. Lalita Kohli, Ms. Sarla Chandra and
S.K. Mitra for the Respondent.

The Judgment of the Court was delivered by
THOMMEN, J. Leave granted.

This appeal by the plaintiff in a suit for eviction
arises from the judgment of the Calcutta High Court dismiss-
ing his appeal against the judgment of the 1st appellate
court allowing the defendant’s appeal against the decree of
the trial court. The trial court found that the plaintiff
was entitled to evict the tenant on the ground of reasonable
requirement specified under Section 13(1)(ff) of the West
Bengal Premises Tenancy Act, 1956 (the “Act”). Reversing
that finding, the 1st appellate court held that the plain-
tiff was not the owner of the premises and was, therefore,
not entitled to seek eviction. This finding was affirmed by
the High Court by the judgment under appeal.
The only question which arises in the present appeal is
whether or not the plaintiff is the owner of the suit prem-
ises for the purpose of instituting a suit for eviction in
terms of the Act. The dispute concerns a flat allotted to
the plaintiff by the Kadamtola Housing Co-operative Society,
Calcutta (the “Society”). This was one of the 16 flats held
by the Society under a 99 years lease granted by the Calcut-
ta Metropolitan Development Authority under a registered
document. The Society in turn allotted these flats to its
members, among whom the appellant is one, by a sub-lease for
a term of 99 years. The appellant, being an allottee, is
thus a sub-lessee under the Society with a heritable and
transferable title. The
248
appellant subsequently inducted the respondent into the flat
on a rent of Rs. 110 per month. On 29.10.1976, a notice of
termination of the tenancy was issued by the appellant to
the respondent calling upon him to vacate the premises not
later than December, 1976. Since the respondent did not
vacate the premises, title suit No. 165/77 was instituted by
the appellant on the ground of default of payment of rent as
specified under Section 13(1)(i) of the Act and also on the
ground of reasonable requirement for occupation as provided
under Section 13(1)(ff). The trial court found that the
premises were reasonably required by the appellant, and the
suit was accordingly decreed on the ground mentioned under
Section 13(1)(ff). It was, however, held that the tenant was
not in arrears of rent.

It is important to note that the defendant in his writ-
ten statement did not question the plaintiff’s title or
claim of ownership. No issue regarding ownership had been
framed as it was never questioned by the defendant at any
stage of the proceedings in the trial court. On appeal by
the defendant, the 1st appellate court examined the plain-
tiffs title and held that, since he was only a lessee under
a 99 years lease granted by the Society, which itself was a
lessee holding a 99 years lease from the Metropolitan Devel-
opment Authority, he was not an ‘owner’ within the meaning
of Section 13(1)(ff) of the Act and was, therefore, not
entitled to seek eviction under that provision. Accordingly,
the merits of the plaintiffs claim were not examined by the
1st appellate court. This finding was affirmed by the High
Court, and, like the 1st appellate court, it also did not
consider the merits of the plaintiffs case for eviction.
Section 13 protects a tenant from eviction except on one
or more of the grounds specified thereunder. That Section,
in so far as it is material, reads:

“S.(13)(1)–Notwithstanding anything to the
contrary in any other law, no order or decree
for the recovery of possession of any premises
shall be made by any Court in favour of the
landlord against a tenant except on one or
more of the following grounds, namely:–
(fl’) Subject to the provisions of sub-section
(3A), where the premises are reasonably re-
quired by the landlord for his own occupation
if he is the owner or for the 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 accommo-
dation.

249

On the facts of this case, the provision of sub-section
3(A) of this Section are not attracted. Clause (ff) is
attracted as a ground for eviction if the landlord is in a
position to prove that the premises are required by him for
his own occupation, if he is the owner of the premises, or
for the occupation of any person for whose benefit the
premises are held, and the landlord or such other person, as
the case may be, is not in possession of any reasonably
suitable accommodation.

The ‘landlord’ is defined by Section 2 in wide terms so
as to include any person who, for the time being, is enti-
tled to receive or but for a special contract, would be
entitled to receive the rent of any premises, whether or not
on his own account:’ This definition shows that even if the
rent is received by a person not on his own account but on
account of any other person, such as his principal or his
ward, he is for the purpose of the Act a landlord. Any such
person is, therefore, entitled to institute a suit for
eviction. But to attract clause (fl’), the requirement of
the landlord must be either for his own occupation, if he is
the owner, or, for the occupation of any person for whose
benefit the premises are held. This clause is, of course,
available only when no reasonably suitable accommodation is
available to the person for whose occupation the eviction is
sought.

It is submitted on behalf of the respondent that the
appellant, although a ‘landlord’ within the meaning of
Section 2, is not an owner so as to be able to seek eviction
on the ground specified under clause (ff) of sub-section (1)
of Section 13. The contention is that the appellant is only
a lessee, and that too in terms of a sub-lease of 99 years
granted by a Society which is itself holding a lease for the
same period. Such a lessee is not an owner, for his rights
are not absolute. He cannot claim to be an owner for the
purpose of seeking eviction by recourse to the provisions of
an Act which is intended to protect the tenant and prevent
eviction except on specified grounds. The expression owner
should be so strictly construed as to exclude any person
having less than full ownership right.

Ownership denotes the relation between a person and an
object forming the subject-matter of his ownership. It
consists in a complex of rights, all of which are rights in
rem, being good against all the world and not merely against
specific persons’. (Salmond on Jurisprudence, 12th ed., Ch.
8, p. 246 et. seq.). There are various rights or incidents
of ownership all of which need not necessarily be present in
every case. They may include a right to possess, use and
enjoy the thing owned; and a right to consume, destroy or
alienate it. Such a right may be indeterminate in duration
and residuary in character. A person has a right to possess
the thing which he owns, even when he is not in possession,
but only retains a rever-

250

sionary interest, i.e., a right to repossess the thing on
the termination of a certain period or on the happening of a
certain event.

All that a plaintiff needs to prove is that he has a
better title than the defendant. He has no burden to show
that he has the best of all possible titles. His ownership
is good against all the world except the true owner. The
rights of an owner are seldom absolute, and often are in
many respects controlled and regulated by statute. The
question, however, is whether he has a superior right or
interest vis-a-vis the person challenging it.
The plaintiff is an allottee in terms of the West Bengal
Co-operative Societies Act, 1983: (See Sections 87 and 89).
He has a right to possess the premises for a period of 99
years as a heritable and transferable property. During that
period he has a right to let out the premises and enjoy the
rental income therefrom, subject to the statutory terms and
conditions of allotment. The certificate of allotment is the
conclusive evidence of his title or interest. It is true
that he has to obtain the written consent of the Society
before letting out the premises. But once let out in accord-
ance with the terms of allotment specified in the statute,
he is entitled to enjoy the income from the property. Al-
though he is a lessee in relation to the Society, and his
rights and interests are subject to the terms and conditions
of allotment, he is the owner of the property having a
superior right in relation to the defendant. As far as the
defendant is concerned, the plaintiff is his landlord and
the owner of the premises for all purposes dealt with under
the provisions of the Act.

In view of what we have stated above, the High Court and
the 1st appellate court were wrong in setting aside the
decree of the trial court solely on the question of the
appellant’s title. The appellant’s title was never an issue
at any stage of the trial. There was no plea to that effect
and no issue was, therefore, framed on the question. This
being the position, the appellant’s claim has to be decided
on the basis of the pleadings, i.e., on the basis that he is
the owner of the premises in question.

Accordingly, we set aside the judgment of the High Court
and that of the 1st appellate court and remand this case to
the 1st appellate court for fresh disposal of the respond-
ent-tenant’s appeal on the merits.

This appeal is accordingly allowed with costs of the
appellant throughout.

N.P.V						      Appeal
allowed.
251



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