R. C. Lahoti, J. -
(1.)Plot No. A-1-B, situated at Sawai Jaisingh Highway, Banipark, Jaipur, is owned by plaintiff-appellants and admeasures 1545 sq. yards. With effect from 31-1-1986, a lease in respect of 6100 sq. ft. area, out of the total area of the said plot, was created by the plaintiff-appellants in favour of Smt. Shiv Kumari Vyas and Shri Uma Shankar Vyas (hereafter referred to collectively as 'Vyas,' for short) for a period of 51 years. The purpose of lease was to allow Vyas to construct basement and ground floor on the leased land for the period of lease, that is, 51 years. The terms and conditions of the lease are incorporated in a registered deed of lease executed on 20-12-1986, wherefrom the relevant and material for the purpose of this order, are extracted and reproduced hereunder :-
3. That the second party will be entitled to construct in the leased premises according to his choice and in accordance with the law and will construct shops in basement and on it ground floor and the second party will make the stairs to go upstairs (upper floor) to first party according to map.
4. That the lessees will construct shops on the leased property and can sub-let the shops to other persons on rent for the period less than the period of lease and will be entitled to receive the rent and the lessors will not object to that.
16. That at the end of lease the second party will hand over all the construction with fittings and with tenancy to first party and will obtain a receipt for handing over and advance premium first party will pay to second party without interest.
18. That if the second party commits default in payment of lease premium for six months the lease will end automatically and resultingly the first party will be entitled to lease amount from sub-tenants and possession will automatically revert to first party and the second party will not have any objection in case the lease amount is obtained directly from sub-tenants and if the money received from sub-tenant is less than lease premium then the rest of the amount by second party or sub-tenants. Lease will continue otherwise it will end.
22. That the lease premium of the lease i.e. for basement and ground floor total will be Rs. 5.50 paise per sq. ft. per month and the lease premium could be increased after five years with mutual consent and parties can make agreement for this.
24. That the ownership of the land which is leased will be of first party and second party will remain lessees.
Note (a) That the leased property 6168 sq. ft. for underground and ground floor on 6100 sq. ft. The lease premium is Rs. 5.50 paise per sq. ft. per month i.e. basement for Rs. 2/- per month. Lease premium and ground floor Rs. 3.50 paise per sq. ft. per month the first party has given to second party for 51 years on lease which will be read with the terms of above lease deed."
(2.)Vyas constructed a commercial complex consisting of 105 shops on the leased land. They were let out to different tenants. It appears that sometime in the year 1989, 28 tenants of Vyas sub-leased the shops in favour of others. Some of these sub-lessees have further inducted their own tenants. Vyas committed default in payment of premium (the term as used in the lease deed) for more than six months whereupon the plaintiff-appellants filed a suit for recovery of arrears and for eviction impleading Shri Uma Shankar and Smt. Shiv Kumari, the tenants under the lease deed, as defendants. One of the pleas taken in the written statement by the tenants was that the sub-tenants and the tenants of sub-tenants in actual possession of the shops were necessary parties to the suit. Applications under O. 7, R. 11 and O. 1, R. 10 of C.P.C. were also filed by the two defendants seeking rejection of the plaint for non-joinder of necessary parties or in the alternative a direction for impleadment of the sub-tenants. The applications were resisted by the plaintiffs and were rejected by the trial Court forming an opinion that the sub-tenants were not necessary parties to the suit. This order was upheld by the High Court in Civil Revision No. 925 of 1991 decided on 4-11-1991. The suit was then tried between the parties as impleaded by plaintiffs. The trial Court, while deciding the suit, recorded the same finding on issue No. 7, relating to suit being bad for non-joinder of necessary parties and held that as no relief was sought for against the sub-tenants in the suit, they were not necessary parties. To quote from the decision of the trial Court, it was held, - "In the present suit no relief is sought against the sub-tenants nor cause of action is there. If the defendants fail to pay the rent then the plaintiffs are entitled to recover rent directly from the sub-tenants and thus they become their direct tenants. The sub-tenants are inducted with the consent of the plaintiffs. Therefore, it will be presumed that sub-tenants are the tenants of the plaintiffs and though they will not be entitled to evict them in this decree but will be entitled to receive the rent directly. In this situation the rights of the sub-tenants will not be affected by this suit." As the principal issue was decided against the lessee-defendants, holding them to be defaulter and hence liable to be evicted, the trial Court passed a decree to the following effect :-
". . . . . . . . .the suit of the plaintiffs is decreed with costs against the defendants. The plaintiffs will be entitled to possession from defendants of those shops and land which is in actual possession of defendants and the remaining shops which are in possession of sub-tenants they will be entitled to only symbolic possession. The plaintiffs are entitled to Rs. 33,686/- per month as compensation for use and occupation from the date of filing of the suit till recovery after paying the Court-fees. The defendants are restrained that they will not demolish or to make unlawful construction in the disputed property, nor they will alienate or transfer or sell through him or through their agent or servant."
(Underlining by us)
The abovesaid decree has achieved a finality.
(3.)The plaintiff-appellants i.e. the decree-holders put the decree to execution. It appears that the decree-holders were successful in securing possession over 77 shops but could not execute the decree to the extent of 28 shops in possession of sub-tenants or tenants of sub-tenants. Out of these 28, seven persons, who were inducted as tenants or sub-tenants in the shops but had further parted with possession in favour of their own sub-lessees, resisted delivery of possession by filing petitions under S. 47 read with O. 21, R. 97 of the C.P.C. These are the persons referable to shop Nos. B-8, M-13, M-14, M-15, G-22, G-27 and G-37. The sub-tenants in actual possession of the premises are Vijai Chaudhary, Arun Sharma, Tarun Agarwal, Bal Chand Purohit, Hitesh Arora, Virender Punia and Liladhar Gupta. By order dated 27-7-1995, the executing Court rejected the objection petitions forming an opinion that the objectors were themselves the sub-tenants having been inducted into possession of the respective shops in violation of the terms of the lease deed and in any case they had further sub-let the respective shops and being not themselves in actual possession, were not entitled to offer resistance to the delivery of possession to the decree-holders. Seven civil revisions were preferred by the seven objectors before the High Court which have been allowed. The High Court has held that the persons in actual possession of the property were holding the possession on behalf of the objectors and their dispossession would certainly cause injury to the objectors. The decree passed in the suit directs symbolic possession being delivered by the persons in possession other than the lessees to the decree-holders and, therefore, the decree-holders were entitled to execute the decree by demanding actual physical possession only against the principal tenants and while doing so neither the objectors nor any person holding the property on their behalf could be actually ejected. The decree-holders have preferred these appeals by special leave feeling aggrieved by the revisional orders of the High Court.