SOUMEN SEN,J. - (1.) This is an application by one Mr. Amal Kumar Dasgupta who is carrying on business of newspaper printing press under the name and style of 'Garermath Printing and Publishing House'. The applicant claims to be a tenant/lessee in respect of a room on the ground floor of Premises No. 24/1 Gangadhar Babu Lane, Kolkata - 700012. This application has been filed with a view to protect his possession as it became precarious by reason of appointment of a Special Officer by this Court in an execution proceeding initiated by the decree-holder against Harish Chopra and others.
(2.) The property in question originally belonged to the Mitras. The Mitras have inducted various tenants. In 1973, a lease was executed by the Mitras in favour of the judgment-debtors for a period of 21 years. Since the judgment-debtors have failed to deliver possession upon expiry of the lease period, a suit for eviction was filed against the Chopras. The result was inevitable as the lease had expired by efflux of time and a decree had to follow. The decree has followed. Thereafter, the decree was assigned in favour of the present decree-holder. The present decree-holder has filed this execution proceeding against the Chopras. The decree does not decide the right, title or interest of either the Shaws who were inducted as tenants by the Mitras in 1930s or the applicant who claims to have been inducted in the premises by the Shaws. The lease deed dated 5th January 1973 between the Mitra and the Chopras, in one of the habendum clauses, has recognised that there are tenants and occupiers in the premises in question although the said lease deed does not furnish the list of such tenants and/or occupiers. Under the garb of the decree, the decree-holder cannot oust the tenant or the occupier who claims to have been inducted by the tenants as there is nothing on record to show that the Mitras prior to 1973 had initiated any eviction proceeding against the Shaws for alleged sub-letting. In the application, the applicant has disclosed rent receipts prior to 1973 to show that rents have been paid to the Shaws.
(3.) Mr. Sakya Sen, learned counsel representing the decree-holder has submitted that there has been an attornment of tenancy in favour of the Chopras by the Shaws as stated in paragraphs 5 and 6 of an affidavit affirmed by Mahendra Sahu on 19th April 2011. Mr. Sen has also relied upon a decision of the Hon'ble Supreme Court in Uppalapati Veera Venkata Satyanarayanaraju and Another v. Josyula Hanumayamma and Another reported in AIR 1967 Supreme Court 174 [paragraphs 14 and 15], which define the scope of attornment. The paragraphs relied upon should be read with other two paragraphs namely paragraphs 3 and 7. Paragraphs 3, 4, 5, 6 and 7 of the said affidavit are set out below:- 3. I say that in the year 1960 my uncle late Ackel Shaw died. Upon the death of late Ackel Shaw the joint tenancy in respect of the demised premises devolved upon the sole surviving tenant, being my father late Borhan Shaw and my father thereafter continued to pay rents in respect of the demised premises. Sachindro Nath Mitter, the then landlord however continued to issue rent receipts in the joint name of my father and uncle. 4. I say that after 1960 till his demise in year 1976, my father late Borhan Shaw continued to possess and enjoy the said demised premises as the tenant by regularly and punctually paying monthly rental for the same. Copies of rent receipts granted between 1950 to 1976 are annexed herewith and marked with the letter "B". 5. In the meantime, the said Sachindro Nath Mitter by a letter dated January 5, 1973 inter-alia, called upon my father to attorn rents to Sm. Prakash Watti Chopra on and from January 1, 1973. A copy of the said letter of attornment dated January 5, 1973 is annexed hereto and marked with the letter "C". 6. I say that after the receipt of the letter of attornment dated January 5, 1973 the said Sm. Prakash Watti Chopra started to collect rents from my father and upon such request by the superior landlord, the rent was regularly and puncutally paid to the said Sm. Prakash Watti Chopra. 7. I say that sometime in the year 1973, late Sachindra Nath Mitra applied before the Calcutta Municipal Corporation for amalgamation of the premises 24/1, Gangadhar Babu Lane, Kolkata - 700012 into a single unit for assessment and levy of taxes. In this regard, a copy of the letter addressed by late Sachindra Nath Mitra to the Calcutta Municipal Corporation is enclosed herewith and marked with the letter "D". A copy of the letter is available in the records of my deceased father and I have reasons to believe that such copy was given to my father to assist officers of the corporation during inspection at the time of assessment and amalgamation.;