BISWANATH SOMADDER, J. - (1.) THIS is an application under Article 227 of the Constitution of India in respect of an order bearing no. 57 dated 14th March, 2007, passed by the learned Judge, Second Bench of the City Civil Court at Calcutta in Miscellaneous Case No. 961 of 2006 arising out of Title Execution case no. 48 of 1998.
(2.) THE petitioners in the instant application are the judgment-debtors who are contesting the execution case pending before the learned court below. By the order impugned, the learned court below dismissed the judgment-debtors' application dated 20th May, 2006, filed before it under section 47 of the Code of Civil Procedure, 1908.
(3.) THE facts of the case relevant for the purpose of disposing the instant application, in brief, are as follows: - By a common judgment delivered by the learned trial court, three suits, being Title Suit Nos. 2723/94, 2194/94 and 3558/94, in which the main dispute was between the two branches of a family over control of a business of sale and repair of watches, stood disposed of, against which three appeals were preferred before a Division Bench of this Hon'ble Court by the petitioners No. 1 to 5 herein. From the observations made in the judgment and order dated 06th October, 2005 passed by the Division Bench of this Hon'ble Court it appears that the dispute revolved round 'M/s. B.K. Dey', the trade name of a proprietary concern, originally belonging to Bijoy Krishna Dey (since deceased), which is being run in a rented shop room from premises no. 15, Mahatma Gandhi Road, Calcutta. The Division Bench of this Hon'ble Court dismissed the three appeals of the petitioner nos.1 to 5 herein with the following observations: - "Section 14 of the West Bengal Premises Tenancy Act, however as construed by this Court in the case of Debabrata v. Kalyan, does not make sub-letting "unlawful" per se. so this authority cannot be applied in the facts of the present appeal. In the subject-controversy, the Tarapada branch in our opinion cannot be allowed to have the Deed of gift invalidated on the ground that if given effect to, it would amount to creation of sub-tenancy or assignment without prior consent of the landlord. It is the landlord alone who can raise this issue. There is another aspect of the controversy, however, which requires consideration. The subject of gift, which appears from the schedule to the deed of Gift, is as follows: - "under P.S. Muchipara, temporary property in holding no. 15, Mahatma Gandhi Road, Calcutta- 700 019, in the ground floor, one shop-room the width of which is 12 ft. and length is 10 ft. the said shop-room housing the watch shop named B.K. Dey along with the goods, furniture and goodwill of business is the property mentioned in the schedule of this deed and the four boundaries are described below.." It is not necessary for our purpose to describe the boundary and we are not doing so. Thus, four categories of properties are forming subject of the gift, being the shop-room, goods, furniture and goodwill of the business. The tenancy of Bijoy Krishna in respect of the shop-room is guided by the West Bengal Premises Tenancy Act, 1956. In the first place there is no clear and specific mentioned of transfer of the tenancy right in the shop-room by Bijoy in favour of Amitava in the gift deed (Ext.1). In fact, in the Plaint of T.S. 2194 of 1994, instituted by Somnath, a specific allegation was made that Bijoy Krishna, in collusion with the landlady was going to transfer the tenancy. This allegation was made in paragraph 6 of the plaint. In his written statement, dated 30th July, 1996, in response to such allegation, Bijoy Krishna specifically averred that he was still tenant in respect of the suit premises, but was ready to abrogate the tenancy right in favour of Amitava. There is no evidence we have been taken through, from where inference can be drawn as regards change of tenancy of the subject shop room subsequently. Mere intention to abrogate tenancy expressed by the tenant alone, in our view cannot abrogate the tenancy and its incidence outside the ambit of the statute guiding landlord tenant relationship. Till the death of Bijoy Krishna, the tenancy remained with him. The tenancy, with which a third party (being the landlord) is involved, cannot be deemed to have undergone a change by virtue of the execution of the Deed of Gift. In these cases we are not concerned with the effect of the deed of gift upon the tenancy of the shop-room in the name of Bijoy Krishna. As observed hereinbefore that gift deed in its terms do not contemplate assignment of tenancy of the shop-room. That question will be decided, if raised at all, in an appropriate time in presence of the landlord. Incidentally, it may be observed that if the gift deed is construed as a gift comprising tenancy right in the shop-room vis-a-vis the terms of tenancy agreement between Bijoy and his landlord then at best such part of the gift may be declared invalid because of any statutory bar, if there be any. In such a case also the gift as a whole would not be valid. We are therefore of the view that the Judgments and Decrees of the Trial Court do not warrant any interference. All the three appeals are, accordingly, dismissed with the observations made hereinbefore in respect of the tenancy of the shop-room in question. Parties to bear their own cost.;