P L D 1961 Dacca 628 (PLP)

CHOWDHURY, C. J.‑This appeal by the defendants arises out of a suit for recovery of khas possession of the disputed property after evicting the defendants therefrom on declaration of the plaintiffs' title thereto. Facts of the case, shortly stated, are, as follows :‑ The disputed property, a two‑storied building in Municipal Holding No. 260 (present holding being No. 363 of Ward "C" in R. S. Plot No. 600 of Nayabad Mahal in Mouza Khatunganj P. S. Kotwali in the District of Chittagong) originally belonged to Tajendra Dhar and others. They let out the building in 1925 to a Marwari firm‑Lakshi Narayan and Jakiram Marwari‑as monthly bharatia on a registered agreement at a monthly rental of Rs.

75. Thereafter on the 14th of July 1933, these Dhar brothers got mortgaged the holding along with other properties to the local Mahaluxmi, Bank Limited. The mortgagee Bank was put in possession and the Bank was realising rent from the Marwari tenants. The Dhar Brothers could not repay the debt within the stipulated period of five years and as a result the Bank was alleged to have become the absolute owner of the property, and sold the disputed premises as such to Umesh Chandra Mahajan, the predecessor‑in‑interest of the plaintiffs for a sum of Rs. 18,000 by a kabala dated 24‑12‑

43. Umesh Chandra Mahajari got the right of possession of the same and of realisation of rent from the Marwari tenant. In the meantime the Dhar brothers borrowed money from the Marwaries on a Promissory ‑Note for which the Marwaries got a decree and in execution thereof purchased the disputed holding on 16‑9‑

35. The Mahaluxmi Bank filed a suit for rent being Money Suit No. 15 of 1917 against the Marwari tenants claiming rent for a period partly before and partly after 16‑9‑35, the date of purchase of the holding by the Marwaries. They contested the money. suit alleging inter alia that they were not liable to pay rent as they had acquired the right of mortgagors free from incumbrances and since then possessing the same as mortgagor‑owners and as such not liable to pay rent. When the Money Suit No. 15 of 1937 was fixed for peremptory hearing, these Marwaries also filed title Suit No. I of 1938 for a declaration of their title on the basis of their purchase in execution of the money decree against the Dhar brothers, the original mortgagors and asserted that they purchased it free from incumbrances by arrangement with the Bank's representative and paid Rs. 800 as a consideration of the same besides the decretal dues and were in possession of the property as such. Therefore, they prayed for confirmation of their possession as such, and in the alternative, for redemption of the disputed property on payment of Rs.. 4,300 and odd. Both the money suit No. 15 of 1937 and title suit No. 1 of 1938 were heard analogously and disposed of by the trial Court by one and the same judgment. The said trial Court found that the relationship between the landlord and tenant ceased with effect from the date of auction purchase of the Marwaries on 16‑9‑35 and decreed the money suit in part for rent upto the date of the purchase of the Marwaries in a Court sale on 16‑9‑

35. So far as the title suit No. 1 of 1938 is concerned the trial Court declared title of the plaintiffs by purchase. So far as the claim of rent for the period subsequent to the date of purchase the trial Court refused the claim of the plaintiff in the money suit holding that since then the Marwaries were in posses sion not as tenants though refused confirmation of possession of the Marwaries, plaintiffs of the title suit as such purchaser, but at the same time granted redemption on payment of Rs. 15,

000. On appeal by the Marwari plaintiffs in title suit No. l of 1938 High Court set aside the decree for redemption on the ground that partial redemption is not allowed in law and set aside the judgment and decree of the trial Court to that extent and armed the judgment and decree so far as they relate to the refusal of the prayer for confirmation of possession of the plaintiffs. I may be mentioned here that there was no appeal against the decree of the money suit either by the plaintiff or by the defendant in that suit. Consequently that decree remained as it eras. In 1939 Mahaluxmi Bank Ltd. filed Money Suit No. 11 of 1939 claiming money from the Marwaries not as rent but for use and occupation in view of the finding in Money Suit No. 15'of 1937 that the relationship of landlord and tenant ceased to exist between the parties. In that suit the Marwaries entered appear ance, but ultimately chose not to contest and allowed an ex parte decree to be passed against them and the mortgagee Bank realised the decretal amount from the Marwaries. This money suit was decreed in the year 1914. Umesh Chandra Mahajan after his purchase on 24‑12‑43 in his attempt to eject the Marwaries approached the Rent Controller, for permission to sue. In that case as the Marwari defendants repudiated the tenancy and denied the relationship of landlord and tenant, the House Rent Controller rejected the application for permission to sue. In 1945 Umesh Chandra Mahajan started Ejectment Suit No. 20 of 1945 for possession of the premises against the Marwaries. The suit was decreed on 28‑9-50 and khas possession was allowed to the plaintiffs with damages of Rs. 15,000 for use and occupation up to 31‑8‑45 on the finding that whatever might have been the position of the Marwaries before their purchase in Court sale and before the decision in the Money Suit No. 15 of 1937, since then they were not possessing the building as tenants ; and as purchasers of the equity of redemption, they were not entitled to possession without redemption. There was an appeal, being Title Appeal No. 70 of 1950, against the decree in title suit No. 20 of 1945 Umesh brought another money suit, being No: 33 of 1950 against the Marwaries for damages for use and occupation of the premises. Both the suits and the appeal were, however, compromised by filing two compromise petitions one in the money suit and the other in the Title Appeal and the plaintiff's' title in the property was recognised and the Marwaries on receiving a sum of Rs. 5,000 surrendered their right, title and interest in the holding. When that compromise decree in Title Appeal No. 70 of 1950 was put into execution for khas possession, the defendants in the present suit, the present appellants, set up sub‑tenancy as monthly bharatia of the Marwaries at a monthly rent of Rs. 25 and resisted the possession to the decree‑holder. As the decree- holder could not get possession on account of the resistance by the defendants, he started Miscellaneous Case No. 134 of 1951 under Order XXI, Rule, 97 of the Code of Civil Procedure. That case also was, dismissed up to the High Court on the finding that the Marwaries were not tenants and that the provisions of Order XXI, rule 97 were not applicable against the defendants. Hence the plaintiffs, the successors and heirs of Umesh, who died in the meantime, have filed the present suit for possession after evicting the defendants from the disputed property. It is alleged that in 1942 when bombing of Chittagong town was started the Marwaries left Chittagong leaving their assets in the care of one of their employees who introduced the defendants into the building and allowed them to live therein. The suit was contested by defendants 1 and

2. Their main contention amongst others is that the Marwaries became owners of the property on account of their purchase on 16‑9‑35 and since 1940 they became monthly tenants under the Marwaries at a rental of Rs. 25 per month which was subsequently enhanced to Rs. 50 and the plaintiffs after purchasing the interest of the Marwaries have become their landlords and the suit for ejectment against them without notice under section 106 of the Transfer of Property Act and without permission of the House Rent Controller is not maintainable. (It is not clear whether they claim to be bharatias of the entire house or a portion of it; but it appears from Exh. B, at page 37 of Part II of the paper‑book that they are in occupa tion of a portion of it). The trial Court decreed the suit holding that when the decree for khas possession against the Marwaries as tenant‑at‑will was passed in 1951 in title suit No. 20 of 1945 the defendants claiming tenancy under them had no right to claim notice for protection and that the decree for eviction against the Marwaries is, in fact, a decree against their tenant as well. The learned Subordinate Judge has further held, that under section 65‑A of the Transfer of Property Act a mortgagor has limited right to lease mort gaged property but every such lease shall reserve the best rent that can reasonably be obtained and in case of lease of buildings, the duration of the lease will in no case extend (beyond) 3 years and, therefore, the Marwaries had no authority under section 65‑A of the Transfer of Property Act to lease the premises in dispute which is a building within the Municipality for a term exceeding 3 years and that the lease must be deemed to have been extinguished after a period of at best 3 years from 1940. The learned Subordi nate Judge has also found that the best rent has not been reserved as the building was let out to the defendants at a monthly rent of Rs. 25 which was subsequently raised to Rs. 50, which, according to him, even in the year 1925 was let out at a rental of Rs. 75 to the Marwaries themselves. Against this decree the, present appeal has been filed by the defendants. Mr. Suhrawardy; the learned counsel appearing on behalf of the appellants, very strongly relied on the finding arrived at in Money Suit No. 15 of 1937 as to the title of the Marwaries, after their purchase on 16th September, 1935 and asserted that the Marwaries acquired the interest of the mortgagor, owner and in fact were in possession of the disputed holding as such and while in such possession they inducted the present defendant‑appellants into the building as monthly tenants and thereby .a relationship of landlord and tenant has been established between them since then, and that when the plaintiff's have acquired the right, title and interest of the Marwaries by virtue of the compromise decree of the year 1951, they stepped into the shoes of the Marwaries and have become the landlords of the defendant‑appellants and cannot evict them without notice under section 106 of the Transfer of Property Act and also without permission from the House Rent Controller under the East Bengal Premises Rent Control Act. So Mr. Suhrawardy, the learned counsel for the appellants, contends that the lower Court is absolutely wrong in holding that the suit for khas possession of the disputed premises after evicting the defendants without notice under section 106 of the Transfer of Property Act and without permission from the House Rent Controller is maintainable. His further contention is that in the facts and circumstances of the case, section 65‑A of the Transfer of Property Act has got no application though he is not willing to commit whether defendants are in occupation of the whole building or a portion of it at a monthly rental of Rs. 25 or Rs.

50. On the other hand, Mr. Roy, the learned Advocate for the plaintiff respondents, strongly relies. on the decree in money suit No. 11 of 1939 filed by the mortgagee Bank for money due on account of use and occupation by the Marwaries and on the fact of realisation of the decretal amount in execution of that decree as well as on the findings of the Subordinate Judge in title suit No. 20 of 1945 decreed on 28‑2‑50 which was ultimately com promised on appeal in 1951 and the fact that in the compromise petition the effect of that decree has been preserved and contends that all through the Marwaries were treated as persons in unau thorised occupation liable to pay for use and occupation from 1935 and they were treated as such at least from 1935 and that while they were in such possession they, if at all, inducted the defendant‑appellants into the land. So it is contended by Mr. Roy that the defendant‑appellants are not entitled to .any notice under section 106 of the Transfer of Property Act nor any permission from the House Rent Controller is necessary for filing a suit for ejectment of the defendants from the disputed premises. Mr. Roy also asserted that in title suit No. I of 1938 nowhere the Court found that the possession of the Marwaries was that of mortgagor‑owners. On the other hand, their prayer for confirmation of possession on the basis of their Court‑purchase was refused in that suit. Therefore, according to Mr. Roy, the judgment and decree passed by the learned Subordinate Judge in this suit are quite right and legal and the appeal as against those judgment and decree is without substance. Mr. Roy also asserted that the defendants‑appellants, are hit by section 65-A of the Transfer of Property Act. From the facts relevant for the purpose of this appeal as stated above, it appears that the question of title and right of possession between the Marwaries and the mortgagee Bank vis‑a‑vis Umesh Chandra Mahajan, the transferee from the mortgagee, the predecessor‑in‑interest of the plaintiffs in this suit, has got a chequered career. The ultimate result from the final analysis of the facts comes to this: The Marwaries were in occupation of the disputed building as Bharatias (monthly tenants) from before the mortgage in 1933. They subsequently on 16‑9‑35 purchased the equity of redemption in execution of a money decree obtained on account of money due on a promissory note executed by the mortgagors; Dhar brothers. At the time when they purchased the property it was subject to the mortgage to the Mahaluxmi Bank. Therefore, what they purchased was the right, title and interest of the judgment‑debtors who had no right to be in possession without redemption as possession of the disputed property had already been given to the mortgagee Bank. Though the Marwaries were in actual possession of the disputed building their possession could not have been attributed to that of the mortgagor even after their purchase in Court‑sale, because, as holders of equity of redemption they were not entitled to possession before redemption. Their possession all through and admittedly was that of a tenant. These Marwaries, in their title suit No. 1 of 1938, asserted that by an .arrangement with the representative of the Bank they purchased the disputed premises free from all incumbrances and got possession through Court and prayed for confirmation of that possession, but their prayer for confirmation of possession was refused up to the High Court though their tile was found on account of their purchase (vide Exh. 6/a) and their title could not have been better than that of the mortgagor himself, i. e., they purchased only the equity of redemption, in other words, subject to the mortgage of the Mahaluxmi Bank. In fact, they prayed for redemption by way of alternative and the trial Court grantea them a decree for redemption on payment of Rs. 15,

000. But on appeal by the Marwaries themselves the High Court, unfortunately for them not only dismissed their appeal but also refused the redemption granted to them by the trial Court on the ground that under the law there cannot be any partial redemption (vide Ext. S (a) page 17 part II of the paper‑book). We have already stated that Title Suit No. of 1938 and Money Suit No. 15 of 1937 on account of the rent of the disputed premises were heard analogously and disposed of by one and the same judgment‑vide Exh. 6 (a), (not printed in the paper‑book). In the said judgment of the trial Court there is the following observation on which the learned counsel for the appellants very strongly relied: "It appears that up to Bhadra, 1342, the plaintiff Bank is entitled to realise rent from the Marwari defendants, but subsequent events have made the position different, so far as the claim of the Bank for rents from Aswin, 1342 are concerned. The lessees auction‑purchased the interest of the lessors on 16‑9‑35 and there was a merger. So, the plaintiff Bank cannot realise rent from the Marwari defendants after that period. The plaintiffs Bank could not have realised rent from its mortgagors, as there is a stipulation for payment of interest in the mortgage deed, and as such, the plaintiff Bank's claim for rent from Aswin, 1342 is disallowed." What would be the effect of this finding when, on appeal by the Marwaries against that decree of the trial Court in that Title Suit No. 1 of 1938, High Court set aside the decree of the lower Court upholding the decree only in so far as it refused the prayer for confirmation of possession : "In the result, this appeal fails. The decree of the lower Court in so far as it refused the prayer for confirmation of possession is upheld. The decree in so far as it allowed the prayer for partial redemption is set aside on the ground that the suit so far as it related to redemption was not properly con stituted inasmuch as all the parties interested in the equity of redemption in the mortgage property were not made parties to the suit." Mr. Pal, the learned advocate who appeared along with Mr. Suhrawardy, the learned counsel for the appellants, contends that the finding of the lower Court as to. rent for period subsequent to Marwaries' purchase quoted above was in Money Suit No. 15 of 1937 while the learned Subordinate Judge was dealing with the claim of the plaintiffs of that suit for rent and that when there was no appeal by the Bank, the plaintiff of that suit, that finding is there undisturbed. Be that as it may, it is apparent that as purchaser of the equity of redemption (right, title and interest of the judgment debtor in execution of the money decree) the Marwaries were not entitled to possession without redemption, and though they alleged that they got possession through Court, as purchaser free from incumbrance, their possession as such was not confirmed tip to the High Court. We do not understand how the learned Subordinate, Judge refused the claim of rent of the plaintiff of Money Suit No. 15 of 1937 though he refused confirmation of possession to the plaintiffs of Title Suit No. l~ of 1938, on the basis of their purchase in Court sale. The fact remains that their claim was refused on the ground that there was a merger of the tenants' interest with that of the mortgagors' interest, though in fact there could not have been any merger as the auction purchaser in execution of the money decree was not entitled to get possession of the disputed property which was already in possession of the mortgagee through tenant. Therefore, the position is this that the Marwaries as tenants of the mortgagor were in occupation of the disputed premises which was in possession of the mortgagee Bank and the same Marwaries got the equity of redemption (the right, title and interest of the said mortgagor as their judgment -debtor) on account of their purchase in execution of money decree, in the property already in possession of the mortgagee, Mahaluxmi Bank. Confusion arose, because the same Marwaries who were in occupation of the disputed premises as monthly tenants also purchased the equity of redemption of the mortgagor while the mortgaged property was in possession of the mortgagee Mahaluxmi Bank through monthly tenants, the Marwaries. On account of this confusion the learned Subordinate Judge was misled and be came to a wrong conclusion in the Money Suit No. 15 of 1937 about the merger of one interest into the other and about . the right of the mortgagee Bank to realise rent from the Marwari tenants. Right or wrong the judgment is binding between the parties and that was the position to law since the decree in that Money Suit No. 15 of 1937. But that position the Marwaries could not, or they were not allowed to, retain longer. The Bank filed Money Suit No. 11 of 1939 treating these Marwaries as persons in unauthorised possession of the building for money due on account of the use and occupation and got a decree. These Marwaries, as it appears from the judgment in Title Suit No. 20 of 1945, Exh. E contested that Money Suit by filing a written statement "repudiating the plaintiff's claim on assertion ‑of their paramount auction‑purchased title. Ultimately, however, they did not appear and the suit decreed ex parte on 12‑1‑44." From Exh. 9 pages 7‑9. of Part II of the paper‑book it appears that the decretal amount in that Money Suit No. I 1 of 1939 was realised in execution of a decree against the Marwaries. Whatever might have been the position of the Marwaries on account of the finding in the Money Suit No. 15 of 1937, thier relationship with Mahaluxmi Bank was found in the Money Suit No. 11 of 1939 to be that of tenants‑at- will or person in unauthorised possession from the 17th of September 1935 as that Money Suit No. 11 of 1939 was filed against the Marwaries claiming money due from them on account of use and occupation of the premises from that date. That is also the view taken by the learned Subordinate Judge in Title Suit No. 20 of 1945. According to the learned Subordinate Judge the decision in Money Suit No. 1 5 of 1937 was conclusive in that the tenancy relationship between the parties finally terminated by reason of that decision, and when their prayer for confirmation of possession in suit No. 1 of 1938 in their auction- purchased right and refused, their possession was not that of owners. Therefore, it was held‑: "That being so, the claim of the plaintiff to get khas possession on eviction of defendants Nos.l and 2, who are, as pointed out above, no more than trespassers or tenants‑at‑will appears to be irresistable." While in possession of the building as such, the Marwaries were said to have inducted one Aparna and Dhirendra into the disputed building. Therefore, the induction of Aparna and Dhirendra in the building by the Marwaries was not while they were in possession of the building either as tenants or as holder of equity of redemption, but while they were in possession of the same as tenants‑at‑will or as trespassers. The position of Umesh Chandra Mahajan on final analysis comes to this :‑He was at first the mortgagee‑purchaser from Mahaluxmi Bank in 1943 having the right to possess the building in possession of persons in unauthorised possession and by a sodenama decree in 1951 (Exhs. 4 and 4/a) he also acquired whatever right, title and interest the Marwaries had, that is, the equity of redemption by their auction purchase in execution of the money decree in 1935. There is no doubt in our mind that by virtue of their purchase in execution of the money decree, the Marwaries did not acquire any right other than the right, title and interest of the judgment‑debtor, namely the equity of redemption and in that capacity they were not entitled to possession of the mortgaged property and in fact their possession on that basis was not confirmed in Title Suit No. 1 of 1938 though in the judgment of that suit, which was tried analogously with the Money Suit No. 15 of 1937 it was found that the relationship of landlord and tenant between the Mahaluxmi Bank and the Marwaries‑defendants ceased to exist. Though in fact these Marwaries were continuing in possession of the disputed building, their possession could not be attributed to anything other than as tenants. There was an improvement in their position no doubt by virtue of the finding arrived at in the judgment of the two suits, namely, Money Suit No. 15 of 1937 and Title Suit No. 1 of 1938, but that improved position they could not maintain on account of the subsequent Money Suit No. 11 of 1939 which was decreed ex parte on the basis that their possession was that of trespassers or tenants‑at‑will and they were liable for damages for use and occupation. That position has further been confirmed in Title Suit No. 20 of 1945 between these Marwaries and Umesh Chandra, purchaser of the right, title and interest of the Bank, in spite of the fact that these Marwaries also acquired the equity of redemption. It is not disputed that a mortgagor having a right of equity of redemption was not. entitled to possess the mortgaged land given in possession of the mortgagee until and unless there is redemption of the mortgage. Mr. Suhrawardy's contention is that whatever might have been the position of the Marwaries, when Umesh Chandra Mahajan by virtue of the compromise decrees Exhs. 4 and 4(a) stepped in to the shoes of the Marwaries the tenancy created by the Marwaries while they were in possession, became a tenancy of the plaintiff's predecessor Umesh Chandra Mahajan This contention of the learn ed counsel is not sound By the two compromise decrees Umesh's right of khas possession decreed was recognised and accepted and their, i.e., the Marwaries claim of equity of redemption was given up on receipt of Rs 5,

000. Umesh got decree for khas possession on the basis that the Marwaries were persons in unauthorised possession. It is not stepping into the shoes of the Marwaries. These Marwaries; as pointed out above, inducted Aparna and Dhirendra, in the building while in such unauthorised possession. So far that decree for khas possession Aparna and Dhirendra could not claim any protection, either under section 106 of the Transfer of Property Act or under the House Rent Control Act. Nor did the surrender or equity of redemption, by the Marwaries give Umesh the right to get khas possession, to enable them to contend that Umesh by compromise stepped into the shoes of the Marwaries to have a relationship of landlord and tenant between them because the Marwaries as holders of equity of redemption were not entitled to nor in the posession of the building to induct Aparna and Dhirendra into the building as tenants. Even assuming for argument's sake that Dhirendra Chowdhury and Aparna Charan Chowdhury were inducted by the Marwaries in some portion of the disputed building as their tenants, after the death of Dhirendra and Aparna that tenancy ceased to exist. It is not clear how the present defendants can claim tenancy. Monthly tenancy is not heritable nor is there any evidence to show that these defendants inherited any interest or they were ever recognised by the Marwaries as their tenants. It is no doubt true that in order to prove their tenancy the defendants produced certain rent receipts‑Exhs. A series (Exhs. A/3 to A/5) at pages 31‑33 of part II of the paper‑book. The first one (Exh. A/3) relates to rent not only of several months but also of several years commencing from Bhadra 1351 B. S. to Kartic 1354 B. S. corresponding to September, 1944 ' to October, 1947 and that too was granted not to the defendants but to the firm Girish Aparna Chowdhury through Chandra Kumar Chowdhury. So also the rent receipt Exh. A (4) showing payment of rest frown Agrahayan, 1354 B S. to 30th Chaitra, 1356 cor responding to 1947 to 1950 was granted to the firm Tajendra Prafulla Chowdhury and Exh. A (5) relates to rent for 14 months from 1357 B. S. to 10th Asar, 1358 B. S. corresponding to 25‑6‑1951. It is also in the name of the firm Tajendra Prafulla Chowdhury. By these three receipts the defendants tried to cover the payment of rent for the entire period from 1944 to 1951. But unfortunately none of these rent receipts stands in their individual name, but in the name of a firm. It is very difficult to rely on these rent receipts. It seems to us that it was introduced at the time of hearing of this suit for the purpose of creating future trouble. They did not go to establish the relationship of landlord and tenant between the Marwaries and the defendants nor constitute recognition of the defendants as tenants of the Marwaries. The learned Subordinate Judge also referred to the provisions of section 65‑A of the Transfer of Property Act. It is not denied that in 1925 when the building was let out to the Marwaries, it was let out at a monthly rental of Rs.

75. The learned Subordinate Judge has pointed out that these Marwacies in 1940 inducted the defendants on the disputed premises at a monthly rental of Rs. 25 i e., far less than the rent. they were paying to their landlord. For this reason the learned Subordinate Judge has pointed out that the lease is not only mala fade belt also in contravention of the pro visions of section 65‑A of the Transfer of Property Act. In order to meet this point the learned counsel Mr. Suhrawardy has referred to the answers given by the Marwaries to the inter rogatories served by the plaintiffs (Exh. B at page 37, Part II of the‑paper‑book) wherein paragraph 6 these Marwaries admitted that the top floor of the building was occupied by the Marwari defendants and the ground floor also was in their occupation along with Tajendra Chowdhury. If that is the basis of their occupa tion, then it clearly shows that they were in possession of only a portion of the ground floor. We do not find any reason why the plaintiffs should not be given a decree for khas possession in any view of the matter in respect of the remaining portion of the disputed holding. In the circumstances, we think the judgment and decree passed by the learned Subordinate Judge are perfectly right and there is no substance in this appeal. The appeal is accordingly dismissed with costs. In view of the decision in the appeal, the connected Rule has become infructuous and it is accordingly discharged without any order as to costs. M. R. KHAN. J. ‑I agree with my Lord, the Chief Justice. A. H. Appeal dismissed.