Swapan Kumar Dutta v. Dharam Chand Jaiswal & Anr.

Bhaskar Bhattacharya, J.:— This revisional application is at the instant of an application under Order 22 Rule 10 of the Code of Civil Procedure and is directed against order dated August 17, 2001 passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Misc. Appeal No. 10 of 2000 thereby affirming Order No. 15 dated July 4, 2000 passed by the learned Judge 6th Bench, Small Causes Court at Calcutta in Ejectment Suit No. 221 of 2000.

2. The opposite party No. 2 brought against opposite party No. 1 a suit being Ejectment Suit No. 221 of 2000 for eviction on the grounds mentioned in section 13(1) of the West Bengal Premises Tenancy Act.

3. During the pendency of such a suit the opposite party No. 2 executed a deed of lease for 25 years with further option for renewal in respect of the properties including the subject matter of such Ejectment Suit No. 221 of 2000 in favour of the petitioner.

4. After execution of such lease deed, the present petitioner filed an application under Order 22 Rule 10 of the Code for being substituted as plaintiff in place of opposite party No. 2 and for permission to proceed with the said suit against opposite party No. 1.

5. The aforesaid application was opposed by the opposite party No. 1 contending that by virtue of a lease deed executed by the opposite party No. 2, the present petitioner cannot get title over the property and as such cannot be impleaded as plaintiff. In other words, the contention of the opposite party No. 1 was that by virtue of the lease deed executed by opposite party No. 2 in favour of the present petitioner, he has not become landlord of the opposite party No. 1 enabling the petitioner to proceed with the suit as plaintiff.

6. The learned trial Judge by Order No. 15 dated July 4, 2000 accepted the contention of the opposite party No. 1 and thus rejected the application under Order 22 Rule 10 of the Code.

7. Being dissatisfied, the petitioner preferred an appeal being Misc. Appeal No. 10 of 2000 and by the order impugned herein the said appellate court has affirmed the order passed by the learned Trial Judge.

8. Being dissatisfied, the applicant under Order 22 Rule 10 of the Code has come up with the instant revisional application.

9. Mr. Dey, the learned advocate appearing on behalf of the petitioner by placing strong reliance upon the decision of the Division Bench of this Court in the case of Shree Narayan Mansingka v. Durgadas Mishra, reported in 55 CWN page 86, contended that by virtue of the lease executed in favour of his client, he has become landlord of the opposite No. 1 and as such is entitled to proceed with the suit filed by the opposite party No. 2. Mr. Dey contends that this is a case of devolution of interest during the pendency of the suit and as such his client should be substituted in place of the opposite party No. 2.

10. The aforesaid contention of Mr. Dey has been seriously disputed by Mr. Chatterjee appearing for the opposite party No. 1. According to Mr. Chatterjee, the deed of lease executed by opposite party No. 2 does not authorize the petitioner even to realise rent from the opposite party No. 1. Mr. Chatterjee further contends that such deed of lease even does not empower the petitioner to evict the existing tenant of the property. Mr. Chatterjee submits that in the absence of any sanction by the opposite party No. 2 permitting the petitioner to realise rent or to sue for ejectment, it cannot be said that there has been devolution of interest in respect of the suit property. Mr. Chatterjee thus contends that the learned courts below rightly held that a mere deed of lease in favour of the petitioner in respect of the subject matter of the suit property cannot confer any right upon the petitioner to be substituted as plaintiff.

11. The only question that arises for determination in this application is if a subsequent deed of lease is executed by a landlord in respect of the tenanted property in favour of a third party, whether such deed of lease can warrant the subsequent lessee to be impleaded as plaintiff in a pending suit for eviction.

12. After hearing the learned counsel for the parties and after going through the decision of the Division Bench of this Court in the case of Shree Narayan Mansingka v. Durgadas Mishra (supra), it appears that there are decisions of this court holding that creation of a tenancy over an existing tenancy is recognised under English Law and such lease is described as concurrent lease. According to those decisions if a document has simply mentioned that a lease of lands which were also the subject matter of a prior lease is being granted, that would in law without anything more operate as an assignment of reversion and enable the lessee under the latter lease to recover rent due and payable under the former one. According to those decisions there is always a distinction between an assignment of the rent and profit and a lease of a reversion. In the case of an assignment of rent and profit, all that the assignee will be entitled is to realise rent and profit by virtue of assignment in his favour. But in the case of reversion, it is not merely the right to recover rent and profit that are transferred to him but also the right which the lessor had on the date of the reversion, for example, his right to recover possession immediately on the expiry of previous term and if before the expiry of the term by virtue of any forfeiture the lessor had the right to enter, the right of such re-entry. The aforesaid principle has been recognised by the Division Bench of this Court in the case of Jahar Lal Bhutra v. Bhupendra Nath Basu*, reported in ILR 49 Calcutta page 495. In the subsequent decision, in the case of Shree Narayan Mansingka (supra) the aforesaid principle has been upheld.

13. However, in the case of Sangsar Ali v. Jaganath Pal, reported in AIR 1923 Calcutta page 368, a Division Bench consisting of Richardson and Suhrawardy, JJ. however raised doubt as to the correctness of law relating to concurrent lease. Their Lordships were of the view that the law relating to concurrent lease in England was still unsettled.

14. Now the question is whether the principle of concurrent lease is applicable to this Country in view of specific provisions contained in Transfer of Property Act.

15. In my view, the decision of Jahar Lal Bhutra (supra) has lost its force in view of subsequent decision of Privy Council in the case of M.E Moolla and Sons Limited v. Official Assignee of the High Court of Judicature at Rangoon, reported in 65 CLJ page 275. In the said decision, the question was whether a deed authorising somebody to realise future rent and profit was compulsorily required to be registered under the provision of section 17 of the Registration Act. In the context of such a case, the Privy Council through Sir George Rankin held that right to future rent is “a right in immoveable property” and if such right is transferred in favour of a third person, such transfer must be effected in accordance with the provision of sale contained in section 54 of the Transfer of Property Act. In other words, Their Lordships were of the view that a right to realise future rent and profit from immoveable property can be created only in accordance with the provisions contained in section 54 of the Transfer of Property Act meaning “by sale”. Therefore, if the effect of a concurrent lease is to authorise second lessee to realise rent in future and permitting him to sue for eviction of the first lessee, such right must be created in accordance with the provisions contained in section 54 of the Transfer of Property Act. If I accept the contention of Mr. Dey that such right can be transferred also by crating a concurrent tenancy, I will act contrary to the decision of the Privy Council in the case of M.E Moolla and Sons Limited (supra). According to section 107 of the Transfer of Property Act for the purpose of creation of a lease of an immoveable property other than from year to year or for any term exceeding one year or reserving a yearly rent, oral agreement accompanied by delivery of possession is sufficient. Thus, if a property is already the subject matter of a tenancy, during continuance of such tenancy the landlord cannot create another monthly tenancy over the selfsame property by taking advantage of doctrine of concurrent lease in violation of the provisions contained in section 54 of the Transfer of Property Act. I have already indicated that doctrine of concurrent lease authorises the second lessee to realise rent from first lessee without concurrence from the original lessor and also authorises him to sue for eviction and thus such right can be transferred only in accordance with the provisions contained in section 54 of the Transfer of Property Act. Therefore, the Division Bench decision in the case of Shree Narayan Mansingka (supra) cannot be cited as valid precedent in view of the fact that the Division Bench in the said decision failed to take note of the decision of the Privy Council in the case of M.E Moolla and Sons (supra). Mr. Dey also relied upon a decision of Madras High Court in the case of Rathnaswami Mooppanar v. R.C Nagaraja Mooppanar, reported in AIR 1938 Madras 100, but the said decision also took no notice of the aforesaid Privy Council decision.

16. There are however authorities which hold the view that section 109 of the Transfer of Property Act is applicable also to a case where a lessor transfers not the property leased or any part thereof but any of his interest therein. In my view, the phrase “any of his interest therein” occurring in section 109 of the Transfer of Property Act means those interest which the lessor was capable of transferring after execution of the first lease. Once a lease has been executed and the lessee has been given right to enjoy the property, landlord cannot have such right any more; the only right that he is able to transfer at that point of time is the lessor's right. However, even during the substance of a lease a lessor can execute usufructory mortgage and by virtue of such mortgage, the mortgagee will step into the shoes of the lessor and will be entitled to realise rent or evict the existing lessee by virtue of the provisions contained in section 58(d) of the Transfer of Property Act. But there is no scope of execution of a further lease deed by such lessor. Thus the phrase “any of his interest therein” appearing in section 109 of the Transfer of Property Act permits a lessor to execute a deed of mortgage but not a deed of lease.

17. In the instant case, the petitioner has been granted a lease for more than 25 years in respect of the properties including the subject matter of the present suit. Such right as pointed out above could not be created in respect of the portion which is the subject matter of the suit. Therefore, by virtue of such lease, right to realize future rent or right to sue for eviction cannot be conferred. Moreover, under section 60(e) of the Transfer of Property Act, a mere right to sue cannot be transferred without creating any interest in the property.

18. Therefore, I am of the view that a lessor can create a third party's interest in the lease hold property either by selling or exchanging or making gift or creating mortgage, but having divested himself of the right of enjoyment of the property and keeping only the lessor's right, the lessor cannot further create any lease. Therefore, there has been no devolution of interest over the subject matter of the suit property by virtue of creation of tenancy in favour of the petitioner.

19. I thus find no merit in the instant revisional application and the same is dismissed.

20. In the facts and circumstances, there will be however no order as to costs.

Revisional application dismissed.

S.K.P