Fortuna Agro Plantations Ltd. vs Shri Manu Urang S/o Late Dualal Urang of Samrucherra, & Ors.

This bunch of four second appeal being inter-related and involving the same question of law are heard together and are being disposed of by this common judgment.

The four appeals were admitted on different dates for hearing purportedly on differently worded but substantially one and the same substantial questions of law, one of which is reflected in the order dated 17-6- 2015 passed by this Court in RSA No.33 of 2014, which is as follows:

"1. Whether the lessee has the right to evict a trespasser in view of the specific terms of the lease deed whereunder the lessor authorized the lessee to do so?

Whether the findings of the trial court and the first appellate Court suffer from perversity?"

On painstakingly going through the pleadings of the parties, the impugned judgment and after hearing Mr. D.K. Biswas, the learned counsel for the appellant at some length, I have no hesitation to say that there are no substantial questions of law in any of these appeals. In all the appeals, the appellant is the lessee of the suit lands in terms of the Lease Agreements executed between it and the same Dilkhusa Tea Company. What exactly happened can best be understood in the findings recorded by appellate court while affirming the findings of the trial court, and the same are reproduced below:

"12. The admitted position of this case is that Fortuna Agro Plantation Limited, represented by Shri Amit Bhowsingka, the plaintiffappellant is a lessee of Dilkhusa Tea Company Limited (earlier known as MurtichheraTea Estate) so far as the suit land is concerned. It is also an admitted position that the predecessor of the defendantrespondent was inducted into the possession of the suit land and hut by the lessor, i.e. Dilkhusa Tea Estate limited for the works in the Tea Garden as labour. The defendant-respondent has all along been residing in the suit premises and hut as permissive possessor under the lessor, Dilkhusa Tea Estate (earlier known as Murtichhera Tea Estate). According to the plaintiff-appellant, the defendant-respondent started refusing to work in the Tea Garden and got himself involved in unlawful activities like cutting of trees, etc. Therefore, the present plaintiff-appellant served notice upon the defendant-respondent on 15- 02-2010, which he duly received, but denied to vacate the suit premises and hut.

According to Section 34 specific Relief Act, the plaintiff-appellant can maintain a suit against the defendant-respondent since the plaintiff-appellant being lessee is entitled to right to the suit property to enjoy it till the period of lease is over and on the expiry of ten days from 15-2-2010 when the defendant-respondent received legal notice to vacate the suit premises and hut being permissive possessor, his act amounts to encroachment over the suit property since the expiry of ten days from 15-2-2010, i.e. the day of receiving notice of eviction.

Be that as it may, the further relief claimed of the plaintiffappellant is recovery of khas possession, but not (?) only declaration of their right, title and interest as lessee.

According to Section 105 Transfer of Property Act, the lease of an immovable property is transfer of right to enjoy such property made for a certain period or in perpetuity in consideration of price, etc. Meaning thereby, lease of immovable property is not a transfer of property as such. Under serial (b) of caption A, i.e. rights and liabilities of the lessor, defined in section 108 Transfer of property Act, the legislature has cast liability upon the lessor to put the lessee in possession of the property leased on the request of the lessee. Likewise, under serial (n) of caption B of Section 108 TP Act, the rights and liabilities of the lessee have been mentioned as if the lessee becomes aware of any encroachment made upon the leased property, etc. he is bound to give with reasonable diligence, notice to the lessor.

In the case at hand, the defendant-respondent denied to vacate the suit premises and hut in spite of receiving notice of eviction on 15- 2-2010 and became encroacher upon the suit premises and hut. Therefore, the plaintiff-appellant being lessee is duty-bound to give notice to the lessor regarding such encroachment. If the plaintiffappellant being lessee is allowed to maintain this suit independently in absence of lessor, it shall never come on record whether the lessor is interested to evict the defendant-respondent from the suit premises and hut. Therefore, a combined reading of clause (b) of caption A and clause (n) of caption B of Section 108 TP Act show that the plaintiff-appellant being lessee cannot maintain this suit against the defendantrespondent in absence of lessor. More so, when eviction of the defendant-respondent is concerned, who was inducted into the suit premises and hut by the lessor before giving the suit premises and huts on lease to the lessee, i.e. the plaintiff-appellant. Therefore, the lessor is a necessary party in whose absence the case cannot be decided effectively. It is not possible for the court to add the party in absence of definite address of the lessor."

The finding of the appellate court that the predecessor of the defendant-respondent was inducted to the suit lands and huts by the lessor, i.e. Dilkhusa Tea Estate Limited for doing works in the Tea Garden as labourer is a concurrent finding of fact. The trial court also recorded the findings that "the plaintiff has placed the Ext.1 series and Ext.3 and 4. The khatians Ext.3 and 4 show that the suit land is recorded in the name of the plaintiff-company under the capacity of lessee and its commentary column No.24, the predecessor of the defendant is being shown as permissive possessor of the suit land since the year of 1374 B.E. The Ext.1 series document shows that the plaintiff company took the suit land and other lands on lease for 99 years from "Dilkhusa Tea Compnay Limited" in the year 1997. It is to be noted here that the defendant''s predecessor and thereafter he has been in possession over the suit land even before the plaintiff company taken (?) lease the suit land. ........ Here, in the instant case, it is clear that the Dilkhusa Tea Co. did not put the present plaintiff in possession though there had been a lease deed executed in between them in respect of the suit land. Situated thus, the plaintiff company in the present case has no authority to sue the present defendant who only might have been put into possession of the suit land by the Lessor-Company...." Thus, the suit instituted by the plaintiff-appellant is not maintainable inasmuch as Dilkhusa Tea Company, who did not hand over possession of the suit land to the plaintiff-appellant, is not made a party-respondent even though it is found to be a necessary party without which no effective decree can be passed. The learned counsel for the appellant has miserably failed to point out any perversity in the findings concurrently recorded by the courts below. Secondly, the legal position that the lessee, who has been put into possession of the suit land by the lessor, has no right to evict a trespasser from the suit land without impleading the lessor as a party-defendant, is a settled position of law and not a debatable one. There are thus no substantial questions of law involved in any of these four appeals, which are, therefore, not maintainable.

For the reasons stated in the foregoing, these appeals are devoid of merit and are, accordingly, dismissed. However, the parties are directed to bear their respective costs. Transmit the LCRs forthwith.