Reliance Jute Mills Co. Ltd. vs Ghoomri Teleni

K.C. Das Gupta, J.—This is an appeal under Clause 15 of the Letters Patent against the decision of P.N. Mookerjee, J. dismissing an appeal arising out of an execution case. The decree under execution was obtained as early as on April 29, 1939, by the present Appellant for ejectment from C.S. plots Nos. 3232 and 3233 of Mouza Bhatpara, against Nirmal Kumar Lahiri and Duklii Shaw. During the pendency of the execution proceedings Dukhi died and the present Respondents Faudi Shaw and Nanda Shaw were substituted in his place. After the execution case was taken up after the stay order passed under the West Bengal Premises Non-Agricultural Tenancy Act, 1940, had been vacated, an objection u/s 47 of the CPC was filed by Dukhi and Faudi to the execution of the decree as against them in respect of C.S. plot No. 3232 of which they were in possession as sub-tenants under the direct tenant Nirmal Lahiri, on the ground that they were not liable to ejectment therefrom in view of the proceedings under the Non-Agricultural Tenancy Act of 1949. The learned Munsif upheld the objection and was of opinion that the whole decree had become non-executable and dismissed the execution case as not maintainable in law. On appeal the learned Additional District Judge was of opinion that execution could proceed as regards C.S. plot No. 3233 of which Nirmal was in possession, he not having objected at all to the execution, but maintained the learned Munsif''s decision as regards C.S. plot No. 3232.

Both the Courts held that u/s 22 of the Non-Agricultural Tenancy Act, read with Section 7, Sub-section (2) of the same Act, the under-tenants Dukhi and Faudi were not liable to ejectment. The learned Additional District Judge further held that there was in law a surrender by the tenant Nirmal and so the undertenants'' right would not be affected and they would be entitled to claim all the rights which the tenant could have claimed u/s 7, Sub-section (2).

P.N. Mookerjee, J. has held that the Respondents, the undertenants, were not entitled to any protection u/s 22 of the Non-Agricultural Tenancy Act and also held that there was no justification for holding that there was surrender by the tenant or any collusion on the tenant''s part. He was of opinion however that the conduct of the tenant Nirmal supported an inference of waiver and that to permit such waiver would be in effect allowing the tenant to derogate from his grant. He further held that in law the under-tenants had the right to resist eviction on the ground that their immediate landlord the tenant, was not liable to ejectment in view of the protection afforded to him by the Non-Agricultural Tenancy Act.

It has been contended before us that there was no basis for the inference drawn by P.N. Mookerjee, J., that Nirmal had waived his rights under the Act. Mr. Bakshi points out that this question of waiver had not been raised in the courts below and there was no evidence from which this could be reasonably inferred. He argued that it may very well be that Nirmal did not resist ejectment in execution because he had not money or because he did not think it worth while continuing litigation. In my view there is substance in this contention and the materials on record do not justify the finding of waiver by Nirmal. It is also contended by Mr. Bakshi that there can be no question of any derogation by the tenant from the grant in favour of the under-tenants as the rights now given by the Non-Agricultural Tenancy Act did not exist at all at the time of the grant. There can of course be no question of taking away a right which has not been granted at all and so even if Nirmal did not choose to press for his right of protection under the Non-Agricultural Tenancy Act, that would not be taking away something which he had granted. In my opinion there is no case here of any derogation by the grantor from his grant.

There remains the question whether P.N. Mookerjee, J., is right in his view that the law gives the under-tenant a right to resist eviction on the ground that his immediate landlord, the tenant, was not liable to ejectment. It is contended that there is no privity of contract or privity of estate between the superior landlord and the under-tenant. The under-tenant is a stranger to the landlord. Consequently, it is argued, the under-tenant should not be allowed to have any say in matters which concern primarily the landlord and the tenant. It is further pointed out that if the under-tenant was not at all made a party in the proceedings, the decree obtained by the landlord against the tenant would have been sufficient to enable the landlord to obtain possession not only against the tenant but against the undertenant as the decree would have been binding against the under tenant also. In my judgment, the fact that there was no privity of contract between the landlord and the under-tenant or the fact that the landlord might have been able to get possession of the land by putting into execution a decree obtained against the tenant only, cannot prejudice the right of the under-tenant in a proceeding where he has been made a party to place before the Court any legal impediment that exists in the way of the landlord''s obtaining possession. There is no doubt that primarily it is the tenant''s interest and the tenant''s right to press before the Court a claim for protection under the West Bengal Non-Agricultural Tenancy Act. If the under-tenant was not a party to the proceedings it would not have been open to him to do anything in the matter. When, however, he is a party to the proceeding he is equally entitled-indeed, I should think it would be his duty to the court-to place before the Court the real position in law, viz.. that under the provisions of the Non-Agricultural Tenancy Act the landlord is not entitled to get possession of the land by evicting the tenant. The under-tenant would not do it for the benefit of the tenant. He would do it for his own benefit. For if the tenant is saved from ejectment the necessary consequence is that he also is saved from ejectment. I can see no legal principle which stands in the way of the under-tenant who is a party to the proceeding placing before the Court facts and law that may help him. I find myself in full agreement with P.N. Mookerjee, J., when he says ''"If, therefore, "the ''tenant'' Nirmal could have successfully pleaded protection "from eviction in respect of the lands of the under-tenancy that "would disentitle the Appellant-landlord from executing its decree "for ejectment against the under-tenants Respondents and any of "them would be entitled to defeat the superior landlord''s claim "for possession by setting up the protection against eviction, "available to their immediate landlord namely, the ''tenant'' "Nirmal Kumra Lahiri."

I have, therefore, come to the conclusion that the appeal was rightly dismissed by P.N. Mookerjee, J. The Letters Patent Appeal is therefore dismissed. In the peculiar circumstances of the case we order that the parties will bear their own costs.

Guha, J.

I agree.