Decided on March 18,1960

Indraloke Studio Ltd. Appellant
Santi Debi Respondents


P.N.MOOKERJEE, J. - (1.) THE suit, out of which this appeal arises, was a suit for ejectment and mesne profits. It was instituted on 19 -6 -1951, and decreed by the trial Court on 31 -5 -1956. Against that decree, the present appeal was filed on 24 -8 -1956.
(2.) IN the suit, which was filed by the predecessor of the present respondent No. 1, there were three defendants, of whom, the appellant Indroloke Studio Ltd., was defendant No, 3 and the present respondents Nos. 3 and 4 were respectively defendants Nos. 1 and 2. The original plaintiff Kanhyalal Kanodia, husband of the present respondent No. 1, Santi Devi, and father of the minor respondent No. 2, Chandra Kumar Kanodia, died during the pendency of the suit in the trial Court, and, in his place, the said respondents Nos. 1 and 2 were substituted as the plaintiffs. The suit, as we have said above, was eventually decreed, and, against that decree, the defendant No. 3 has come up in appeal. The original plaintiff, claiming to be a lessee under the superior holders, whom, for brevity and convenience, we may call the Ghoses, sued to recover possession of the suit property Premises (Municipal holdings) Nos. 20 and 21, Baburam Ghose Road, Tollygunge, 24 Parganas, and also mesne profits from the three defendants, upon the ground, inter alia, that defendants Nos. 1 and 2 were lessees under him in respect of the above suit premises but had forfeited their rights under their respective leases by reason of nonpayment of rent and by reason also of unauthorised transfer of the same to defendant No. 3 without his (lessor -plaintiff's) consent, which, in the circumstances, amounted to breaches of conditions of the said leases, entitling him (the plaintiff -lessor), under the express terms thereof, to re -enter the suit property. In short, the plaintiff's case was that defendants Nos. 1 and 2 had lost their rights in the suit property on account of forfeiture of their respective leases, as aforesaid, and defendant No. 3 did not acquire any interest therein inasmuch as the relevant transfers or assignments in his (defendant No. 3's) favour were unauthorised and invalid against the plaintiff, and, accordingly, the latter was entitled to a decree for possession and mesne profits.
(3.) TO turn to the relevant details, the plaintiff's case, as made in the plaint, was as follows : By two registered indentures of leases, bearing date, 24 -11 -1944, the plaintiff, as 'owner in possession' of the suit premises Nos. 20 and 21 Baburam Ghose Road, Tollygunge, district 24 Parganas, leased out the same to defendants Nos. 1 and 2 for a term of 10 years, with option of renewal to the lessees for a further term of 5 years. The two indentures aforesaid were on similar terms, which included, inter alia, the following: (a) that 'the defendants Nos. 1 and 2 as lessees would pay Rs. 300/ - as monthly rent for premises No. 20 Baburam Ghose Road and Rs. 250 for premises No. 21 Baburam Ghose Road, aforesaid,' (b) that 'they would pay such rent regularly in advance without any deduction or abatement whatsoever within the 15th day of each and every month, for which the rent is payable, whether formally demanded or not, in addition to all municipal taxes, Chowkidary taxes and all other outgoings and impositions' ; (c) that 'they would not, during the period of the lease, transfer, assign, sublet or sub -demise or deal with the said premises in any manner whatsoever without the written consent of the plaintiff, first had and obtained''; (d) that 'the lease would determine if the defendants Nos. 1 and 2, the lessees, did not pay rent for 2 consecutive months, whether legally demanded 'or not' ; and (e) that 'in case there was, on the part of the defendants Nos. 1 and 2, breach of any of the covenants and conditions contained in the said Indenture of lease including those mentioned in items Nos. (a), (b), (c) and (d), the lease would 'ipso facto' determine and the said premises would 'ipso facto' become the property of the Plaintiff, who would, thereupon, be entitled to re -enter and enjoy the said premises'. Under the express terms of the above two indentures, the leases were to commence on the derequisition of the demised premises by the Military authorities, who were, at the time, in occupation of the same upon and under requisition. This derequisition was made on 31 -3 -1947, when the Military authorities delivered possession to the lessees, defendants Nos. 1 and 2 and the leases actually commenced on and from 1 -4 -1947. In the mean time, however, on 19 -12 -1946, the defendant No. 2, without the consent of the plaintiff, had transferred all his right, title and interest in the disputed premises to one Rohini Kumar Sen Gupta, who, in his turn, by a deed of assignment, dated 14 -8 -1947, transferred all his right, title and interest in and to the said premises under the aforesaid indenture of 19 -12 -1946, to defendant No. 3. On the same day, namely, 14 -8 -1947, defendant No. 1 also, without the plaintiff's consent, had and obtained as required by his (defendant No. 1's) own indenture of lease aforesaid, dated 24 -11 -1944, transferred, by another or a separate deed of assignment, all his right, title and interest in the disputed premises to the said defendant No. 3. The defendants Nos. 1 and 2 did not also nay any rent to the plaintiff up to the date of the suit. ;

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