Saugata Bhattacharyya, Soumen Sen,JJ. - (1.) This appeal is directed against a decree dated 3rd July, 2014 at the instance of Uma Poddar, Ravi Poddar and Amit Kumar Poddar claiming 2/12th share in the property in question. The decree directs division of the property in accordance with the shares declared in the said decree as also the entitlement of the plaintiff to 10/12th share of the rent collected from the premises. The defendant nos.2 and 3 have preferred a separate appeal.
(2.) The appellant has claimed his right in respect of the property on the basis of same and the similar agreement that was executed by the other co-owners and co-sharers of the property in question in favour of the plaintiff. If the two co-owners and/or co-sharers, who executed the sale deed in favour of the plaintiff, claim ownership over the structures, the rest of the co-owners being similarly placed cannot be said to having any interest over the structures.
(3.) The tracing of right over the property and structure by the plaintiff as well as the defendant no.1 are on the basis of the same nature of the agreement. The sale deed executed in favour of the appellant by two co-owners of the property results in the appellant acquiring 2/12th share in the property. The other co- owners on same terms have executed sale deed in favour of the plaintiff. The ownership over the structures by the legal heirs of the Lahiris are accepted by both the appellant and the decree-holder on the basis of the sale deeds executed in their favour. It is needless to mention that the benefits of the structure, if had gone in favour of the appellants, must also go in favour of the plaintiff. On such consideration, we feel that the appellants cannot be a party aggrieved as they would be benefited in the event the decree is upheld with regard to the structure as well. Mr. Sakya Sen, learned Counsel appearing on behalf of the appellant, has fairly submitted that the appellant is receiving 2/12th share of the rent in respect of the land, which clearly supports that the legal heirs had title over the said land, otherwise the appellant could not have received such rents from the defendant nos. 2 and 3. However there was no evidence to show that the rent was only for the land and not for structures. The appellants are related to the lessees. They tried to espouse the cause of the lessee indirectly by raising an objection with regard to the entitlement of the rent by the plaintiff in relation to the structure. The admission on denial of the right to the structure by the appellants in this appeal are not material. The right to the structure after determination of lease by the owners cannot be doubted. It is an admitted position that the original lease had expired and the defendant nos. 2 and 3 made attempt to seek a specific performance of an alleged agreement entered into with some of the co-owners in respect of the said property. The said suit was dismissed on merits. It is relevant to refer to the lease agreement entered into between Nirod Lahiri as lessee and Madan Lal Poddar as the original lessor. Madanlal Poddar was engaged in business as a dealer in motor cars and accessories. Under the terms of the lease agreement, the lessor gave to the lessee the land appertaining to the demised premises and the lessee was granted liberty to "erect, construct, set up and fix any buildings, erections, houses, quarters, structures, sheds, godowns, offices and worships with the previous sanction of the Corporation of Calcutta" for an initial period of fifteen years along with an option to the lessee to extend the agreement for a further five years. The lessee was also entitled "to erect or build or put up or permit to be erected or built or put up on the demised premises any new buildings, structures, and sheds and to make or permit to be made any additions and alterations to and in any building (then) existing and at any time (thereafter) existing as the lessee shall think necessary subject to the sanction of the Corporation of Calcutta." It was agreed between the parties that all buildings, erections, structures, factory, workshops, godowns and other fixtures now existing or that may hereafter be built or erected or set up on the demised premises or any part thereof during the continuance of the term shall belong and shall continue to belong to the lessee. It was also agreed that at the expiration or sooner determination of the lease the lessee would peacefully and quietly yield and deliver up possession of the demised premises to the lessor except all buildings, erections, sheds, et cetera erected or to be erected on the demised premises and all additions thereto and all fixtures thereto. In the recital to the lease deed the rights of the lessee to the structures as owners are recognised. In Clause 4(a), 4(b) and 4(c) the ownership of the lessee in relation to the structures erected by the lessee during the tenure of the lease with the right to remove, dismantle, and carry away for the use of the lessee is clearly mentioned. The said Clauses state:- "4. Provided always and it is hereby agreed by and between the parties hereto as follows - a) All buildings erections structures factory workshops - godowns and other fixtures now existing or that may hereafter be built or erected or set up on the demised premises or any part thereof during the continuance of the term hereby granted belong and shall continue to belong to the Lesee; b) On or before the determination of the tenancy hereby created the lessee shall be at liberty to dislodge dismantle remove take and carry away for his use all buildings erections bunglows workshops sheds, structures plant, machinery and appliances set up erected or brought in or upon the demised premises or any part thereof and all fixtures and articles belonging to the lessee within three months from the date of the determination of the term hereby created without causing any damage to the demised land and after repairing damage, if any, to the demised premises and after having first paid the rent upto the date of the delivery of possession;" c) The sum of Rupees Four thousand and eight hundred being an equivalent of Sixteen months' rent from First day of - September One thousand nine hundred and fifty- one to Thirty-first day of December One thousand nine hundred and fifty-two has been paid by the Lessee to the Lessor in advance (as the Lessor both hereby acknowledge) and the same shall be appropriated by the Lessor in payment of the rent for Sixteen months from the First day of September One thousand nine hundred and fifty-one to the Thirty-first day of December One thousand - nine hundred and fifty-two. Rupees Three hundred is also paid by the Lessee to the Lessor as deposit for one month's rent - (the receipt whereof is also hereby acknowledged by the Lessor)." ;