1968 SCMR 341 (PLP)

HAMOODUR RAHMAN, J.-This appeal, by special leave is directed against the Judgment and decree of a learned Single Judge of the High Court of East Pakistan dismissing a second appeal. The said second appeal arose out of a suit for a declaration that a decree passed in an earlier suit, being O. C. Suit No. 43 of 1956, in the Court of the Sadar Munsif, Rajshahi, was not binding upon Abdul Jalil Biswas, the predecessor-in-interest of the present appellants, on the ground that it had been obtained fraudulently ROL collusively. An injunction was also sought in the suit for restraining Parvez Ali Mia, the original defendant No. 1 in the suit, from taking possession of holding No. 18, in Ward No. 4 of Rajshahi Municipality, wherein was set up the Banga Azad Mill belonging to the said Abdul Jalil Biswas. This property admittedly belonged to the said Parvez Ali Mia and the latter had, by a registered patta executed on the 3rd April 1937 granted it on lease to one Sourindra Nath Adhikari for a period of ten years from 1st April 1937, at an annual rental of Rs. 20 per month. In this patta deed it was expressly recited that this holding, which was then numbered as holding No. 17, was surrounded on all sides by a brick wall and on a part of the southern wall rested C.I. sheets of a shed which was being used as a jute godown and wherein was also installed a big jute press. The premises demised consisted only of the area covered by the above-mentioned jute godown, for, it was expressly stipulated by this deed that "the khas vacant land on the west and south outside the godown and holding No. 20 in occupation of a blacksmith as tenant" will remain under the possession of the lessor who will be able to make constructions thereon and would himself use them or let them out excluding the thoroughfare leading to the godown which was to be in the possession of the lessee. The jute press located within the godown was also not includ ed in the lease. The lessor further undertook to keep in repair only the constructions of the godown, and the lessee was to be entitled to carry out repairs only if the lessor was unable, to do so or refused to do so. For such repairs a reasonable deduction was also to be allowed from the rent. The deed also provided that if the lessee wanted to retain the godown after the expiry of the term of the lease then he would have again to enter into a fresh settlement with the lessor, at least six months before the date of expiry of the lease, upon a rent to be fixed on the basis of conditions then prevailing. The lessee Sourindra Nath Adhekari, it is said, set up his own machineries, etc. on the demises, but on the 25th of May 1943, he sold these machineries, fixtures and other assets located there to Harsha Nath Banerjee and Dwijindra Nath Banerjee as also granted a sub-lease of the unexpired portion of his lease. These transferees, in their turn, on the 18th of January 1946, again transferred their right, title and interest in these machineries and the lease-hold to one Basanta Kumar Datta by a registered deed of sale. Subsequently upon the expiry of the term of ten years for which the lease was granted to Sourendra Nath Adhekari Basanta Kumar Datta himself obtained a lease in his own name from the owner Parvez Ali Mia by a registered docu ment executed on the 1st of April 1947. This again was for a period of ten years at a rental of Rs. 50 per month of the land as well as the constructions thereon. The area of the land as given in the schedule to this deed is one bigha, 8 kathas and 11 chattaks and is said to be comprised in the then holdings Nos. 63 and 64 of Ward No. 4, Rajshahi, which were described as being surrounded on all sides by a brick wall. The land on the western side, which formed its approach to the Municipal road was included in the demise. The constructions described in the schedule were (i) the brick wall on all sides, and (ii) adjacent to the southern side brick wall:-- (a) Gadighar of pacca walls with corrogated iron sheet roof; (b) a room of partly pacca roof and partly tin roof adjacent east to the Gadighar, and (c) 38 pieces of C. I. sheets. Although the lease was for a fixed term of ten years it was provided in the deed that after the expiry of the said term the lessor may take a fresh lease for another ten years upon terms and conditions to be agreed upon between the parties after consi dering "the time, place, and condition of that time". The deed also stipulated that the lessor would not be bound by "any Settle ment of the lease-hold-land or constructions made during the aforesaid specified period" by the lessee with any other person. Such a Settlement to be valid would have to be made separately with the lessor. After the establishment of Pakistan, however, the said Basanta Kumar Datta sold the machineries and structures built by him on the demised premises to Ishaque Ali Mia and Maz harul Huq by a registered deed of sale. Nothing was said in this deed of sale Exh. 4 (b), about the lease hold interest of Basanta Kumar Datta, but it appears that Basanta Kumar Datta while making over the machineries, etc., sold by him also han ded over the registered deed of lease executed in his favour by Parvez Ali on the 1st of April 1947, as also the deed of sale and agreement for rent executed by Adhikari in favour of his vendees Harsha Nath Banerjee and Dwijandra Nath Banerjee in the year 1943. Ishaque Ali Mia and his brother Mazharul Huq, in their turn, on the 15th of October 1951, by a registered deed agreed to sell their right, title and interest in these machineries and structures to one Kamal Benjir Shah Jamal, a minor represented by the father Moulvi Abdul Jalil Biswas, the original plaintiff in his suit, out of which the present appeal arises. By this deed the vendors also undertook to get a Settlement of the "mill land", in the purchaser's favour at the rental paid by them. The docu ments received by them from Basanta Kumar Datta were also made over to the vendee. Abdul Jalil Biswas, however, on the 17th of October 1951, got an unregistered kobala executed by Basanta Kumar Datta in his own favour and thereafter Ishaque Ali and Mazharul Huq completed their transaction in favour of Jamal Benjir Shah Jamal by an unregistered kobala executed on the 21st of October 1951. The said Abdul Jalil Biswas claims that after acquiring by pure chase the machineries and structures from Ishaque Ali Mia and Mazharul Haq as also the lease-hold-interest of Basanta Kumar Datta from him he entered into possession of the premises, utilised the machineries, constructed new structures and set up newmachineries at a cost of more than Rs. one lac for running a mill under the name and style of Banga Azad Mill. In the meantime, however, Ishaque Ali Mia: alone, it appears, put in an application on the 27th of September 1954, before the House Rent Controller, Rajshahi, under section 14(1) of the East Bengal Premises Rent Control Act for fixation of the stan dard rent of the holding, even though he had in October 1951, sold the machineries, etc. and made over possession of the demised premises to Abdul Jalil Biswas on behalf of his minor son. In this application Ishaque Ali claimed to have taken lease of the holding from Parvez Ali Mia on an exorbitant rental of Rs. 70 per month under coercion and threats of eviction held out by Parvez Ali. This application was contested by Parvez Ali Mia who admitted that he had accepted Ishaque Ali as his tenant in place of Basanta Babu upon the former offering to pay enhanced relit at Rs. 70 per month. Parvez Ali Mia also filed an application before the Rent Controller for permission to evict Ishaque Ali and Mazharul Hutt upon the allegation that they were defaulters and had not paid any rent since October 1951. The Rent Controller fixed the standard rent at Rs. 68 pet month inclusive of all taxes as also granted to Parvez Ali per mission to sue for eviction. Against these orders two appeals were filed before the District Judge, one by Parvez Ali and the other by Ishaque. Parvez Ali complained that the rent fixed by the Controller was inadequate and lshaque Ali complained against the order permitting Parvez Ali to sue him for eviction. The learned District Judge in appeal re-fixed the standard rent at Rs. 50 plus municipal taxes but dismissed the appeal of Isha que Ali against the order allowing the landlord to sue for evic tion. It might be mentioned here that even before these proceed ings Parvez Ali Mia had filed a suit, being Money Suit No. 22 of 1954, for the recovery of arrears of rent from October 1951, to March 1954, due from Ishaque Ali Mia and got a decree therein on the 22nd of June 1955. 'I hereafter, in 1957, Parvez Ali Mia having died in the meantime, his sons brought another rent suit (No. 19 of 1957) claiming rent from April 1954, to January 1956. This also was decreed on 5-9-1958. Abdul Jalil Biswas himself, it appears, had also applied on 17-1-1953 to the House Rent Controller, Rajshahi, to have the rent reduced by 50 % and for permission to deposit the rents due for the year 1952. This was opposed by Parvez Alt Mia on the ground that Abdul Jalil Biswas and his son Kamal Benjir Shah Jamal were trespassers. According to Parvez Ali he had recognised Ishaque Ali Mia as his tenant in place of Basanta Babu after the former had purchased the machineries from him, as he had agreed to pay an increased rent of Rs. 70 per month. He stated that he had no knowledge of how Abdul. Jalil Mia became the owner of the mill and maintained that, he was, in any event, not bound to recognise him as a tenant. This petition of Abdul Jalil Biswas was dismissed for default on 12-3-1953. It is significant, however, that in none of these proceedings was it ever alleged by Parvez Ali that Basanta Babu had abandoned his tenancy. In 1956 Parvez Ali Mia ultimately filed Suit No. 43 of 1956 for the eviction of Ishaque Ali alone from the demised premises and obtained a decree for ejectment therein. Upon the basis of this decree he started Execution Case No. 29 of 1956 and in that execution he wanted to evict Abdul Jalil Biswas from the premises on the ground that he was holding on behalf of Ishaque Ali and, therefore, was bound by the decree for eviction obtained for the evection of Ishaque Ali. It was in these circumstances that Abdul Jalil Mia was cone-relied on the 20th of August 1957, to file Suit No. 210 of 1957 out of which the present appeal arises. Parvez Ali Mia himself contested this suit and tiled a written statement admitting the execution of the registered deed of leass in favour of Basanta Babu on 1-4-1947 for a period of ten years, but alleging that after Basanta Babu sold the structures and machineries and left Pakistan for good "his relationship of a tenant with this defendant extinguished long ago and Basanta Kumar Datta had no lease hold interest therein nor he has any nor he can have any such in terest". In another place in the written statement it was further asserted that because the lease executed by Basanta Babu provid ed that the lessor would not be hound by any Settlement of the lease-hold land or structures made during the term of the lease by the lessor with any person instead of possessing himself, the tenancy right of Basanta Babu had become extinguished "after he left possession". Parvez Ali also claimed that the tenancy of Basanta had been terminated, because, he had entered into a fresh oral lease with Ishaque Mian and accepted him as a tenant of the holding at a monthly rent of Rs. 70 plus municipal taxes in the place and stead of Basanta Babu. He also denied that the tenancy was governed by the East Bengal Non-Agricultural Tenancy. Act or that the proceedings between him and Ishaque Ali before the Rent Controller were collusive or fraudulent. At the trial both sides adduced oral evidence. Abdul Jalil Biswas examined himself and Jainuddin Sarkar, an attesting witness to the deed of Basanta assigning the lease. On behalf of the defendants in the suit Ishaque Ali himself was examined and Mujibur Rahman, a son of Parvez Ali, also gave evidence. Ishaque Ali, of course, denied that the earlier proceedings between him and Parvez Ali were collusive and stated that when Basanta Babu left he had requested Parvez Mia to settle the rent with him and accordingly the rental was fixed at Rs. 70 by agreement. Ishaque Ali further stated that the proceedings he had filed before the Rent Controller were at the instance of Abdul Jalil Biswas himself. 1 his fact was also supported by Md. Ghulam Sattar, who claimed that he was a karamehari of Abdul Jalil Biswas up to 1955. According to this witness Ishaque Mia and his brother had appointed him and Jainuddin Sarkar as their Aam Mukhtears for the purpose of conducting the proceedings before the Rent Controller. Mujibur Rahman in his evidence, however, for the first time put forward the case that Basanta Babu had relinquished his lease-hold interest in favour of his father on the 13th of January 1948. Basanta Babu, wile was a pleader himself, it is said, made this surren der verbally in the presence of several persons and requested Parvez Ali to make settlement with Ishaque Mian. Settlement was then made with Ishaque Mia 3/4 days after in the presence of Dr. Abdul Aziz, who also gave evidence to that effect. This witness also proved that Vakalatnama in the appeal filed by Ishaque Ali Mia against the order of the Rent Controller giv ing permission to Parvez Ali to evict him was actually signed by Jainuddin Sarkar as the Aam Mukhtear of Ishaque Mia. Thus there was, according to him, no possibility of any col lusion between his father and Ishaque Mia with regard to the proceedings before the Rent Controller or for the eviction of the said Ishaque Mia. On this evidence all the Courts below have held that Basan ta Kumar Datta had abandoned the disputed holding with the intention of exercising no further dominion over the same much before Abdul Jalil Biswas obtained the assignment of the lease from Basanta Babu. The Courts below have also unanimously found that there was no question of collusion between Parvez Ali Mia and Ishaque Ali Mia and, as such, the decree obtained by Parvez Ali for the eviction of Ishaque Mia was executable against Abdul Jalil Biswas, even though he was not a party to the suit for eviction. Hence this appeal. Leave was granted in this case to examine as to whether they had, in fact, been any abandonment or relinquishment of the ten aney by Basanta in favour of the superior landlord and as to 4 whether the decree obtained by the latter against Ishaque Ali Mia could be binding against the appellants. Learned counsel appearing in support of the appeal has, of course, endeavoured to argue that the tenancy in this case was governed by the East Bengal Non-Agricultural Tenancy Act, but we are unable to accept this contention, for, by subsection (5) of section 2 of the East Bengal Non-Agricultural Tenancy Act, 1949, any person who holds any non-agricultural land on which any premises occupied by such person are situated is not included in the definition of a non-agricultural 'tenant if such premises have been erected, or are owned, by the person to whom such occupier is, or but for a special contract would be, liable to pay rent for such occupation. "Premises" in this subsection mean any building, such' as a house, manufactory, ware-house, stable, shop or hut, whether constructed of masonry bricks, 8 concrete, wood, mud, metal or any other material whatsoever, an includes any land appertaining to such building. In view of these provisions it is clear from even the deed of lease executed in favour of Surrendra Chandra Adhikan C Veit the premises demised consisted of an area bounded on all sides by a boundary wall and included a shed used as a jute go-down, the roof of which was resting on one of the boundary walls, and in this godown was also situated a jute press This was, therefore, clearly a "premises" within the exception men tioned under subsection (5) of section 2 of the above-mentioned Act. The tenancy in question was not, therefore, a non-agricul tural tenancy to which the provisions of the above-mentioned Act applied but was clearly governed by the Transfer of Property Act. Now under section 111 of this Act a lease of immovable property may, inter alia, be determined either by express or implied surrender. A surrender is an yielding up of the term by the lesse to the person who has the right to re-enter, or, in whom the immediate reversion expectant on the term is vested. Mujibu Rahman s/o Parvez Ali (D. W. 3) has, of course, tried to make out the case that there was an express surrender by Basanta Babu to his father on the 13th of January 1948. Ishaque Ali (D. W. 2) has also stated that Basanta Babu had left requesting Parvez Mia to settle rent with him. But this evidence is not, in our view, sufficient to establish a case of express surrender, particularly, since no such case was pleaded in the written statement. This. was clearly an attempt at improvement of the case in the course of evidence. Parvez Ali himself never stated that Babu had sur rendered the tenancy to him. All that he claimed was that the tenancy right of Basanta Babu became extinguished after he made over possession to Ishaque Ali Mia and went away to India never to return. His son cannot, therefore, be allowed now to make out a different case. The story of express surrender now sought to be set up is clearly an after-thought and cannot be allowed to be raised. The next question is as to whether there has been, in the cireumstances of this case, an implied surrender by reason of the relinquishment of possession by Basanta Babu. In order to establish surrender by relinquishment of possession the relinquish ment must be in favour of the lessor, that is to say, a sur render may be implied from the fact that the lessee has permitted the lessor to re-enter and take over possession. It is, of course, not necessary that there must be, in every case, a physical taking R over of possession but at least something amounting to a virtual taking over of possession must be proved, such as the lessee handing over the keys of the premises to the lessor, or the doing of some other act which would indicate a present intention to yield up the tenancy in favour of the lessor. In the present case, of course, there is no such evidence to show that Basanta Babu had in fact any intention of surrendering his lease in favour of his lessor. Learned counsel appearing for the respondents in this appeal has argued that the unregistered kabala set up by the appellant's which is alleged to have been executed by Basanta Babu in favour of Moulvi Abdul Jalil on the 17th of October 1951, was a wholly fictitious document. Indeed, if this document had come into being in 1951 Abdul Jalil Biswas would not have applied in 1953 to the Rent Controller for reduction of rent in the name of his son Benjir Shah Jamal. The fact that he did so shows that be 4d elot aequired the tenancy Fight of Basanta till then. Another fact upon which strong reliance is placed for doubting the genuineness of this document is that the consideration for this alleged transfer of the unexpired lease-hold interest of Basanta Babu was deliberately fixed at a sum of Rs. 50 only so that the document may not be compulsorily registerable. The insignificant consideration for the transfer of the balance of the term of lease; some six years; it is said, by itself is sufficient to show that this document was not a genuine document. Learned counsel has also relied upon the evidence of Muhammad Ghulam Sattar (D. W. 4) an employee of Abdul Jalil -1swas himself, to show that in 1954 also Abdul Jalil Biswas making efforts through Ishaq Ali Mia to get the rent reduced. In fact, the Vakalatnamas produced by Mujibur Rahman (D. W. 3) clearly showed that these Vakalatnamas filed on behalf of Ishaque Mia were accepted by his Aam Mukhtear Jainuddin Sarkar, who was himself a witness to the alleged kobala executed by Basanta Kumar Das in October 1951, assigning the lease-hold interest in the disputed property. Even this evidence does not, in our opinion, establish that Basanta's lease-hold interest had become extinguished by sur render, either express or implied. The mere fact that Basanta Babu went away to India after selling his machineries, etc. to Ishaque Ali Mia does not by itself constitute an abandonment or surrender of the tenancy. Mere non-user cannot be conclusive evidence of abandonment, for it may well be explained by the circumstances of the particular case. To make out a case of itandonment non user must be accompanied by some other circumstance evidence an intention to abandon. Similarly for surrender also a mere relinquishment of the tenancy is not enough. A relinquishment without the making over of possession is not a valid surrender. The intention of the lessee must be the guiding factor in each case, though this intention may be inferred from his actions. The question then is whether such an intention has been manifested in the present case by Basanta? We think not. In the present case, it is not without significance that Basanta Babu made over even his lease-deed to Ishaque Ali along with other documents relating to the demised premises. If there was no intention on the part of Basanta Babu to also transfer the lease hold interest to the purchaser he would surely not have left these documents with the purchase but would have made ettem over to Parvez Ali, the landlord himself. The covenant in the deed of sale granted by Ishaque Ali and his brother Mazharul Haq for getting a settlement of the "mill-land" could only mean that the vendors would have the tenancy renewed by the landlord on the same rent. It could not, in the circumstances of this case, mean that Basanta had surrendered his lease-hold interest, for he had, in any event, made no such covenant in his deed. In this view of the matter we are unat-e to agree with the Courts below that evidence adduced in this case established al surrender of the tenancy by Basanta. A lease-hold interest being a heritable and a transferable interest could be transferred to another person and, as such, the mere transfer of such an interest could not amount to an abandonment or relinquishment of the tenancy. The next question that arises is whether in the circumstances the appellents were liable to be ejected on the strength or a decree obtained by Parvez Ali against Ishaque Ali Mia. if there was no surrender of the tenancy by Basanta Babu then a decree in a suit, to which Basanta Babu was not a party, could not have the effect of putting an end to his interest in the land, which the appellants' predecessor-in-interest Abdul Jalil Biswas had purchased in 1951, from Basanta Babu himself. The finding of the Courts below on this question is, of course, based mainly on the ground that since the appellant's predecessor-in-interest got across to the pre mises through Ishaque Mia, the decree against Ishaque Mia was binding upon him. In coming to this finding, however, the Courts below have overlooked that Abdul Jalil Biswas claimed to have entered into possession of the lease-hold interest in his own right and not as the guardian of the minor assignee under the assign ment thereof granted to him by Basanta Babu and not through Ishaque Mia. In the circumstances, since Abdul Jalil Biswas' was claiming to be in possession of the property in his own right, his resistance to the taking over of possession in execution) of the decree was on his own account and, therefore, the applica tion for execution should have been dismissed under Order XXI, rule 99 of the Code of Civil Procedure. The resistance or obs truction to the delivery of possession was, in the facts and circum stances of this case, certainly not at the instigation of the judg ment-debtor or on his behalf. Abdul Jalil Biswas asserted wholly independent right which he claimed to have acquired under the kobala executed in his favour by Basanta Kumar Datta. There is no evidence to show that their document was a forged document. All that was suggested in cross-examination was that it had been obtained subsequently to bolster up the case of Abdul Jalil Biswas. We are, however, not impressed by this argument. If the right of Basanta was still subsisting then a subsequent assignment thereof was also valid. It seems to us that none of the Courts below had appreciated that once the tenancy in favour of Basanta Kumar Datta is admitted that interest could only be extinguished by one or other of the methods mentioned in section 111 of the Transfer of Pro perty Act which was the law that governed the transaction in the present case. No question of abandonment of the tenancy arose in these circumstances. In the absence of surrender the tenancy was by law, to be deemed to subsist until the expiration of its fixed term. During this time Basanta could transfer his interest in any manner he liked. The mere fact that the consideration for the transfer was inadequate would not by itself be a sufficient ground for holding that the transaction itself was invalid. It is lastly urged that, in any event since the terms of the lease of Basanta himself expired on the 31st March 1957, his assignee had no further right to remain on the land. This may be so but even this would not make him evictable in execution of decree in a suit to which he was not a party. If the landlord wishes to evict him he must sue for evicting him as a trespasser and not seek to enforce against him a decree which is not binding upon him. For these reasons we are of the view that this appeal must succeed, the decrees of the Courts below must be set aside and the Suit No. 210 of 1957 must be decreed but there will be no order as to costs. Appeal accepted.