Decided on September 06,1983

Chandra Nath Banerjee Appellant
P.J. Parekh And Ors. Respondents


Anil Kumar Sen, J. - (1.) This appeal from an original order is at the instance of the defendant No. 1 and is directed against an order of remand dated May 31, 1982, passed by the learned Additional District Judge, 7th Court, Alipore, in Title Appeal No. 686 of 1981. The learned Additional District Judge in remanding the suit for re-trial set aside a decree of dismissal of plaintiff's suit, being Title Suit No. 434 of 1979 passed by the learned Munsif, 4th Court, Alipore, under Order 12, Rule 6 of the Code of Civil Procedure. Since the trial court had dismissed the suit under the provision of Order 12, Rule 6 of the Code we must go by the plaint and the case made therein for deciding how far the learned Additional District Judge was right in setting aside such a decree of dismissal of the suit.
(2.) The plaintiff/respondent No. 1 instituted the aforesaid suit for declaration and for injunction. According to the plaintiff the defendant No. 1/appellant is the owner of the entire Premises No. 8A, Harish Mukherjee Road, P. S. Bhowanipore, District 24-Parganas. The defendant No. 1 let out the said entire premises to one Giridharilal T. Parekh since before 1947 at a monthly rental of Rs. 360/- with a right to sublet any part thereof, Giridharilal in his turn sublet a portion of the said disputed premises on the ground floor (hereinafter referred to as the suit premises) to the plaintiff at a monthly rental of Rs. 150/. In the year 1955, defendant No. 1 instituted Title Suit No. 21 of 1955 against the said Giridharilal for eviction on the ground of reasonable requirement. In that suit the plaintiff subtenant was made a party defendant. Pending the said suit on March 31, 1956, the West Bengal Premises Tenancy Act, 1956, came into effect, the earlier Act of 1950 being repealed. On August 21, 1956, Title suit No. 21 of 1955 was dismissed on compromise against Giridharilal and ex parte against the plaintiff. Giridharilal executed a lease for 21 years and continued to remain in possession and enjoyment of the entire Premises No. 8A, Harish Mukherjee Road. The plaintiff continued to enjoy the suit premises as a subtenant under Giridharilal, the rent thereafter having been enhanced to Rs. 200/- per month. Giridharilal died on August 15, 1977, leaving behind the defendant Nos. 2 to 10 as his heirs and legal representatives. The lease in favour of Giridaharilal having expired the defendant No. 1 on November 28, 1977, instituted Title Suit No. 410 of 1977. That suit was decreed on August 31, 1979, (the decree being signed on October 31 1979), as against defendant Nos. 2 to 10. Plaintiff came to know of such a decree for the first time on November 26, 1979. Plaintiff claims that the substancy in favour of the plaintiff in respect of the suit premises having been lawfully created by Giridharilal, defendant No. 1 had no right, authority or competence to enter into grant a lease for 21 years in favour of Giridharilal to the detriment of the plaintiff and in any event the plaintiff's lawful subtenancy could not be defeated or avoided by the said lease, plaintiff being no party thereto. Plaintiff further claimed that although it was obligatory on the part of the defendant No. 1 to implead the plaintiff as a party defendant in Title Suit No. 410 of 1977 as he was not made a party, the decree passed therein is clearly inoperative, not binding on the plaintiff and is incapable of execution, inasmuch as, the plaintiff must be deemed to have been elevated to the position of a direct tenant under defendant No. 1 since the passing of the said decree in Title Suit No. 410 of 1977. Since such a decree has created a cloud on the plaintiff's lawful status and possession in respect of the suit premises and since there is just apprehension that the defendant No. 1 may oust the plaintiff from the suit premises it is necessary that the plaintiff's title as lawful direct tenant should be declared and the defendant No. 1 should be restrained permanently from interfering with plaintiff's possession of the suit premises in execution of the decree so obtained by him in the aforesaid suit.
(3.) On these allegations plaintiff sought for a declaration to the effect "that the plaintiff was a lawful subtenant of the disputed premises and has acquired the status of direct tenant in respect of the disputed premises under defendant No. 1 upon termination of tenancy of defendant Nos. 2 to 10 by the decree passed in Title Suit No. 410 of 1977 of this Court on October 31, 1979". He also prayed for permanent injunction restraining the defendant No. 1 from evicting the plaintiff from the suit premises on the basis of the decree, as aforesaid.;

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