Subol Chandra Mullick vs Dwarka Prosad Jhunjhunwalla

R.M. Datta, J.—By an indenture dated April 8, 1914, the Plaintiff''s predecessors granted a lease for a period of 50 years in respect of premises Nos. 11 Rup Chand Roy Street and 12 Mullick Street to one Surajmall Jhunjhunwalla since deceased. The said two premises being Nos. 11 Rup Chand Roy Street and 12 Mullick Street were subsequently amalgamated into one single premises and became known as 11 Rup Chand Roy Street, Calcutta.

Under the said lease the said period of 50 years was to commence from May 15, 1913. It was provided in the said lease that the said lessee Surajmall Jhunjhunwalla would demolish the existing building and would erect thereon a new building within five years from the date of the said lease. The said lessee would keep the said premises in thorough good order during the period covered thereby and at the end or sooner determination of the said term would peacefully and quietly leave, surrender and yield up to the lessors the said demised premises together with the building to be erected thereon and together with all door, windows, fastenings, water closets and all such other things which might be fixed or fastened to the said demised premises or to the building to be erected thereon or to any part thereof as might not be removed without injuring the demised premises and the building erected thereon.

In the partition suit being Suit No. 367 of 1936 (Sm. Lahshmisona Dassi v. Sm. Kamalini Dassi and Ors.) filed in the year 1936 the said premises No. 11 Rup Chand Roy Street was partitioned and divided into four lots by the Receivers appointed therein. The Receivers by their letter of adornment dated September 19, 1959, attorney Subol as the landlord of the said entire back-east portion of the said premises No. 11 Rup Chand Roy Street, Calcutta, and intimated the same to the lessees of the said back-east portion of the said premises. A sum of Rs. 37 was fixed as the monthly rent of the said entire back-east portion of the said premises No. 11 Rup Chand Roy Street, Calcutta, which was allotted to Subol by way of partition.

Rent fell in arrears for the months of Bhadra to Kartick 1368 B.S. corresponding to the English year 1961. Subol filed a rent suit in the Court of Small Causes, Calcutta, being Suit No. 4131 of 1961 (Subol Chandra Mullick v. Dwarka Prosad Jhunjhunwala and Ors.) for the said period at the rate of Rs. 37 per month. The Jhunjhunwallas entered into a settlement with Subol by payment of all arrears of rent to Subol and the suit was thereby settled.

At all material times the lessees being the said Jhunjhunwallas had inducted sub-tenants in the said back-east portion of the said premises. The said sub-tenants had been made parties in this suit.

The term of the. said lease was due to expire on or about May 15, 1963.

By his letter dated March 29, 1963, the Plaintiff through his Solicitor gave a notice to quit, vacate and make over peaceful possession of the said back-east portion of the said premises No. 11 Rup Chand Roy Street, Calcutta, to the Plaintiff. The Defendants being the lessees under the Plaintiff failed and neglected to yield up possession in respect of the said back-east portion of said premises.

The Plaintiff instituted this suit on June 12, 1964, against the heirs of the said Surajmall who was the lessee of the said premises and also against the said sub-tenants.

On behalf of the lessee Defendants, except one Kashi Prosad Jhunjhunwalla, a written statement was filed. The main defence in the said written statement was to the effect that even after the expiry of the said lease the lessee Defendants were holding over as tenants of the Plaintiff in respect of the said back-east portion of the said premises.

It is to be noted that the lessee Defendants were not in actual physical occupation of any part of the said premises in suit. It has been pleaded in the said written statement that, in case it would be found that the said lessee Defendants were liable to vacate the said premises then the said Defendants would claim compensation for the value of the building and construction erected thereon by the said Surajmall Jhunjhunwalla deceased.

The further pleading was to the effect that all the heirs of the said Surajmall Jhunjhunwalla had not been made parties to this suit. Accordingly, the suit was not maintainable. In short, the suit was bad for non-joinder of parties.

Another written statement had been filed on behalf of the Defendant No. 7 who happened to be one of the sub-tenants. His defence was to the effect that his full name was Ghanashyamdas Nandalal, but he was wrongfully sued as Ghanashyamdas. According to him, he alone was the sub-lessee under the Jhunjhunwallas in respect of the first floor of the premises allotted to Subol and his father by the name of Nandalal had been wrongfully dragged into the suit as Defendant No. 7A. According to him, he alone was the sub-lessee in respect of the first floor of the premises allotted to Subol and his father had no interest in the said tenancy. It was contended on behalf of the said Defendant that in the absence of any notice to quit on the said Defendant the sub-tenancy had not been validly terminated and, as such, he could not be evicted from the said premises. It was pleaded in the written statement to the effect that the Plaintiff had demanded payment of rent from the said Defendant by treating him as a direct tenant under the Plaintiff. Accordingly, the said Defendant started depositing the rent with the Rent Controller in the joint names of the Plaintiff and the said M/s. Surajmall Brijlal in which name the business was carried on. Lastly, it was pleaded that the Plaintiff Subol had no independent right to sue alone and should have joined the other co-sharers or co-owners of the said premises as parties to this suit. In the absence of such parties the suit was bad for non-joinder of the parties.

Similar written statement had been filed on behalf of another sub-tenant, being the Defendant No. 6 Kathawalla Trading-Co. (P.) Ltd. This Defendant had been occupying the ground floor of the said premises.

It should be mentioned here that the lessee Defendants in the written statement'' took up the point that one Kashi Prosad Jhunjhunwalla, who was also one of the co-lessees of the said premises, was not joined as a party Defendant in the said suit. Upon coming to know of the position the Plaintiff joined the said Kashi Prosad Jhunjhunwalla as a Defendant in this suit. Kashi Prosad Jhunjhunwalla entered appearance but he did not file any written statement.

The following issues were settled at the trial:

(1) Was the divided back-east portion of premises No. 11 Rup Chand Roy, Street, Calcutta, allotted to the Plaintiff as alleged in paras. 10 and 11 of the plaint ?

(2) Was the Plaintiff attorney as landlord in respect of the premises as alleged in para. 13 of the plaint ?

(3) Is the Plaintiff entitled to any mesne profits as alleged in para. 20 of the plaint. If so, for what amount and at what rate.

(4) Are the Defendants Nos. 1 and 2 holding over as tenants as alleged in para. 16 of their written statement ?

(5) Are the Defendants Nos. 1 and 2 entitled to compensation as alleged in para. 17 of their written statement ?

(6) Is the suit bad for non-joinder as alleged in para. 18(a) of the written statement of the Defendants Nos. 1 and 2 ?

(7) Is the Defendant Nandalal a necessary party ?

(8) (a) Are the Defendants Nos. 6 and 7 entitled to a notice to quit ?

(b) Are the Defendants Nos. 6 and 7 liable to be evicted in the absence of such notice to quit ?

(9) To what relief, if any, is the Plaintiff entitled ?

Issue No. (l): Premises No. 11 Rup Chand Roy Street, Calcutta, was divided into four parts along with other properties under the said partition decree. The back-east portion was allotted by the Commissioner of Partition in favour of Dinanath Mullick, Hansa Gopal Mullick, Subol Chandra Mullick and Sm. Rati Manjari Dassi jointly. Thereafter, an application was made on behalf of Subdl whereupon an order was made on July 19, 1954, directing the Commissioner of Partition, inter alia, to sub-divide the share allotted to the branch of Subol''s father. Pursuant thereto the properties of this branch was sub-divided into four equal parts or shares by sub partition and this back-east portion of 11 Rup Chand Roy Street, Calcutta, comprising an area of 1 cottab 5J chittahs more or less with all buildings and structures thereon was allotted to the Plaintiff Subol exclusively and absolutely. The said allotment was shown in the decree in the said partition proceedings. Subol took possession of his share allotted to him including this back-east portion of this premises No. 11 Rup Chand Roy Street, Calcutta. Thereupon Subol was attorned as landlord of the said back-east portion of the said premises by a letter of adornment dated September 19, 1959, written by the Receivers appointed in the said partition suit on and from the month of Bhadra 1366 B.S. corresponding to, August 18, 1959, and by the said letter a sum of Rs. 37 per month was fixed as the rate of rent per month payable by the tenants Dwarka Prosad Jhunjhunwalla and others to Subol. The position was accepted on behalf of the tenants and the said sum of Rs. 37 as fixed by the Receivers was paid by the tenants Dwarka Prosad Jhunjhunwalla and others to Subol against rent receipts though not regularly.

I am satisfied from the evidence on record that the divided back-east portion of the premises No. 11 Rup Chand Roy Street, Calcutta, was allotted to the Plaintiff by the said partition decree. None of the Defendants appearing before me did put up any serious challenge with regard to this issue and the position was more or less accepted by all the appearing Defendants after evidence was led on behalf of Subol. Accordingly, I answer this issue No. (1) in the affirmative.

Issue No. (2): The letter of adornment dated September 19, 1959, is an admitted document. The (letter was written by the joint Receivers Jitendra Nath Mullick and Dinanath" Mullick to Dwarka Prosad Jhunjhunwalla^ Rupchand Jhunjhunwalla, Radheshyam Jhunjhunwalla, Govindram Jhunjhunwalla and Jankiprasad Jhunjhunwalla as heirs and legal representatives of Surajmall Jhunjhunwalla. It was intimated that the back-east portion occupied by the lessees under the lease had been allotted absolutely to Subol and that a sum of Rs. 37 had been assessed and apportioned as rent payable by the Jhunjhunwallas in favour of Subol with effect from Bhadra 1, 1366 B.S. corresponding with August 18, 1959. Thereafter, on September 22, 1959, Subol wrote to the said Jhunjhunwallas demanding rent at the rate of Rs. 37 per month in respect of the said back-east portion allotted to him. Subol gave reminders to the Jhunjhunwallas by letters dated March 10, 1960 and July 11, 1960. Thereafter, Subol had filed a rent suit which was ultimately settled after the writ of summons was served on the Defendants Jhunjhunwallas.. The Jhunjhunwallas paid off the entire dues of Subol. This constituted a clear proof of the fact that the tenancy was also split up in respect of the said back-east portion of which Subol became the owner.

From this it is quite evident that the Jhunjhunwallas recognised Subol as their landlord in respect of the said back-east portion of premises No. 11 Rup Chand Roy Street, Calcutta, which is the subject-matter of this suit.

Under those circumstances, this issue is also answered in �the affirmative.

Issue No. (4): On this issue the correspondence exchanged between Subol and the sub-tenants would require consideration. The lease was for 50 years. The lease expired on May- 14, 1963. But before that date Subol had already filed a suit for recovery of arrears of rent and the Jhunjhunwallas paid off the arrears of rent due to Subol and settled the suit filed by Subol in the Court of Small Causes, Calcutta. Since thereafter Subol was carrying on correspondence with the Jhunjhunwallas asking them to effect repairs of the said portion allotted to him and threatening to take steps in case the Jhunjhunwallas would fail to effect such repairs. Such correspondence was started in 1961 and had continued in 1962 till about the early part of 1963 as well. By letter dated March 28, 1963, M/s. R.C. Basu & Co., the Solicitors for Subol, wrote to the Jhunjhunwallas calling upon them to quit and vacate and deliver up peaceful possession of the said back-east portion of the said premises on or before the expiry of Baisakh 31, 1370 B.S-, corresponding with May 14, 1963, when the said lease was due to expire. A sum of Rs. 1,000 per month was claimed as damages so long the Jhunjhunwallas would remain in possession of the said premises. Similar letters were written on April 3, 1963, to the three sub-tenants Matilal Bhatika, Ghanashyamdas Nandalal and Kathawalla Trading Co. (P.) Ltd. by the said Solicitors the contents whereof, inter alia, were as follows:

�our client instructed us to serve ejectment notice to the said persons (Jhunjhunwallas) and we have done so. Copies of the said notices are sent to you herewith.

Please therefore do not pay rents after the month of Baisakh 1370 B.S. corresponding to 14th day of May 1963 next of the said premises to your said landlords and pay the rent to our said clients the owner of the said, premises above-named. In default our client will look to you for all costs and damages that he may incur by reason of your acting against the direction �f our said client as contained in this letter and our client will sue against you for realisation of his dues and damages against you. One Sri S.N. Dey, Advocate for Messrs Ghanashyamdas Nandalal and M/s. Kathawalla Trading Co. (P.) Ltd., by his letter dated May 20, 1963, replied, inter alia, to the effect that if the Jhunjhunwallas would surrender the lease there could be no difficulty on his (clients'' part to pay rent of the flat occupied by them as a monthly tenant under the said lessees to Subol. If, on the other hand, the said lessees would not surrender the lease and would go on enjoying the premises so long as they would not be ousted by an ejectment suit, there could be risk on the part of his clients to stop payment of rent to the lessees as non-payment of rent to their immediate landlord M/s. Surajmall Brijlal might result in default and there was every chance of losing the flat. In the circumstances, his clients regretted that they would be unable to comply with Subol''s request in the matter of payment of rent to Subol. It appears from the letter dated May 24, 1963, written by the said Advocate Sri S.N. Dey to Messrs Surajmall Brijlal that the said sub-tenants Messrs Kathawalla Trading Company Private Limited were in doubt as to who should have been paid the rent.

By letter dated June 19, 1963, the Solicitors Messrs R.C. Basu & Co. wrote to the said Advocate Sri Sachinandan De in reply to his said two letters dated May 20, 1963, inter alia, to the following effect:

It makes little difference whether the said lessees, whose lease has expired and relationship between landlord and the tenant has been terminated are occupying the premises or enjoying the same. There is no risk on your client''s part to stop payment to them.

On the other hand our client states that occupying the portion and enjoying thereof without any legal right is illegal and your clients paying rent to them will on the contrary make them open to risks of paying rents twice over because our client will not let your clients go without payment of rents to him and will also expose your clients to costs and damages. Your clients should reconsider the matter and pay our client rent direct as demanded.

On July 3, 1963, Sri S.N. De wrote back on behalf of M/s. Kathawalla Trading Co. (P.) Ltd., inter alia, as follows:

My clients have reconsidered the question of payment of rent of the above tenancy held by them under M/s. Surajmall Brijlal in the light of the explanation given in your aforesaid letter under reply. They are willing to pay rent of the said tenancy held by them direct to your client on condition that they will collect the same by issuing rent bills in favour of my said clients after they are recognised by your clients as direct tenants under them and undertake to compensate my clients in any loss that they may suffer in the hands of their present landlords who have not vacated the premises held by them under your clients even after termination of their lease.

There was a similar letter written on behalf of Messrs Ghanashyamdas Nandalal.

On July 11, 1963, M/s. P. D. Himatsingka & Co. on behalf of Dwarka Prosad Jhunjhunwalla and others denied the validity of the said notice served by Subol''s Solicitors on his clients. By another letter dated July 11, 1963, the said P. D. Himatsingka & Co. demanded rent from Kathawalla Trading Co. (P.) Ltd. and agreed to indemnify the said Kathawalla Trading Co. (P.) Ltd. in respect of payment of such rent in case any action would be taken against the said company by Subol. On July 23, 1963, Subol''s Solicitors wrote to M/s. P. D. Himatsingka & Co. claiming damages at the rate of Rs. 1,000 per month and by the said letter returned the cheque for Rs. 74 which was sent to the said Solicitors by M/s. P. D. Himatsingka & Co. on behalf of the Jhunjhunwallas.

On August 8, 1963, Messrs R.C. Basu %c Co. wrote to the three sub-tenants to the following effect:

As you have failed to pay rents as demanded by us on behalf of our said client Subol Chandra Mallick our client will institute a suit against you for ejectment of the portion occupied by you and we are instructed to give you notice which we hereby do to quit and give up vacant possession of the portion of the premises No. 11 Rup Chand Roy Street, Calcutta, above-named on or before 31st Bhadm 1370 B.s. failing which our instructions are to sue in ejectment and to make you liable for costs.

It would appear from the aforesaid correspondence that Subol intended to get vacant possession of the premises from the Jhunjhunwallas and intimated his intention by his Solicitors'' letters in clear and unmistakable terms. Sometime prior to the expiry of the said lease the lessees were reminded of the expiry of the lease so that on or immediately after the said expiry Subol could recover possession of the premises from the Jhunjhunwallas. Subol was quite conscious of the fact that the rent was too low and, accordingly, claimed a sum of Rs. 1,000 per month as damages so long as Jhunjhunwallas would remain in possession. Subol also intimated the sub-tenants about the said intention to get back possession from the Jhunjhunwallas. There was no need on Subol''s part to send any notice calling upon the Jhunjhunwallas to deliver up possession except for the purpose of intimating them about the expiry of the lease and, accordingly, whether the notice was good or bad that was immaterial, but in spite thereto M/s. P. D. Himatsingka & Co. by their letter dated July 11, 1963, complained about the validity of the said notice. Thereafter on July 16, 1963, Messrs P. D. Himatsingka & Co. sent a cheque for Rs. 74 as rents for the months of Jaistha and Ashar 1370 B.S. payable in respect of the back-east portion of the said premises� No. 11 Rup Chand Roy Street, Calcutta. Nothing was stated about the expiry of the lease or about the right of the Jhunjhunwallas to remain in possession after such expiry. By their letter dated July 20, 1963, M/s. R.C. Basu & Co. returned the said cheque to M/s. P. D. Himatsingka & Co. There is another letter in Ex. ''A'' which is dated July 23, 1963, whereby M/s. R.C. Basu & Co. were said to have returned the cheque for Rs. 74 to M/s. P. D. Himatsingka & Co. The second paragraph of that letter would suggest that the Plaintiffs were then the lessees of the premises. Obviously that was not the position on the date of the letter, but if the letter is read as a whole it clearly gives the impression that what was intended was to describe the Jhunjhunwallas as the lessees until the expiry of the lease. The very next sentence of the letter states that Subol wanted possession of the premises and, therefore, was not in a position to accept any rent. Subol further intimated that unless the Jhunjhunwallas would vacate, Subol would institute proceedings and would claim Rs. ''1,000 per month by way of damages.

In the background of this correspondence, in very opinion, there was no assent on the part* of Subol to continue the tenancy of the Jhunjhunwallas under the said lease or at all. Subol''s attitude had been consistent all throughout from March 1963 till the date of the filing of the suit and, in my opinion, the Defendants Nos. 1 and 2 could not be said to be holding over as tenants under Subol in respect of the said portion of the said premises.

As regards holding over, Mr. Bachawat develops his point by contending that there is a clear case of holding over as against the sub-tenants as would appear from the aforesaid correspondence exchanged by and between Subol and the sub-tenants. Subol has demanded rent from the sub-tenants. Subol purported to give notice to the subtenants before the filing of the suit and the gist of the notice was that inasmuch as they failed to pay rent to Subol directly that was the reason why Subol was going to institute the suit against them calling upon them to quit and vacate the said premises. According to Mr. Bachawat, firstly, it was not necessary for Subol to give such notices to the sub-tenants and, secondly, since it was done, Subol purported to determine their tenancy which they held under the lease by virtue of his assent to continue the said lease u/s 116 of the Transfer of Property Act, 1882. According to Mr. Bachawat, the language of Section 116 of the Transfer of Property Act, 1882, would suggest that the lease with the Jhunjhunwallas became renewed by virtue of Subal''s demanding rent from the sub-lessees and thereby assenting to their continuing in possession. The lease which was sought to be renewed under such circumstances was a lease between Subol and the Jhunjhunwallas and not the lease or subleases between the Jhunjhunwallas and the sub-lessees.

Those contentions would require careful consideration. Section 116 of the Transfer of Property Act, 1882, and the illustration set out thereunder provide as follows:

If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his. continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.

Illustrations (a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C''s lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A''s assent. B''s lease is renewed from year to year.

Illustration (a) above would suggest that Mr. Bachawat''s contention is not correct. There A assented to G''s continuing in possession by accepting rent from C and as such the monthly tenancy of C was renewed and not the lease granted by A to B for five years. The essence of holding over is that the person claiming to hold over after the expiry of the lease or under lease, must be in possession of the property. It is only such person or persons who can become tenants under the provisions of Section 116 of the Transfer of Property Act. 1882, and no others. Accordingly, Jhunjhunwallas admittedly not being in possession of the property or any part thereof cannot, under any circumstances, claim any right of tenancy u/s 116 of the Transfer of Property Act, 1882.

In the case of AIR 1949 124 (Federal Court) the provisions of Section 116 of the Transfer of Property Act, 1882, was considered by the Federal Court. The Federal Court observed to the effect that the tenancy which would be created by the holding over of a lessee or under-lessee Would be a new tenancy in law liven though many of the terms of the old lease might be continued in it by implication and accordingly in order to arrive at the consensus ad idem must be a bilateral act in the sense that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee�s. or sub-lessee''s continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise.

In that case the lessee after the expiry of the lease vacated the premises under his occupation and intimated his inability to deliver up possession with regard to the other portion of the property where Defendants Nos. 2 and 3 were in occupation as sub-tenants. Subsequently, Defendants Nos. 2 and 3 sent their respective cheques for the amount payable as rent and the Plaintiff accepted the same as damages and encashed the same. On the facts of that case it was held that such acceptance amounted to an assent on the part of the landlord to continue the tenancy of the Defendants Nos. 2 and 3.

It is true that in the case before the Federal Court there was no contest on behalf of the lessee to assert his right to hold over as tenant u/s 116 of the Transfer of Property Act, but the said case clearly decided that the lease that was renewed was lease of the sub-tenants who were in possession of the said premises and on the basis of that findings it was held that a monthly tenancy under the provision of Section 116 of the Transfer of Property Act did come into existence.

Accordingly, I hold that insofar as the Jhunjhunwallas were concerned they did not hold over as tenants as pleaded in the written statement.

There is no issue as to whether the sub-tenants did hold over as tenants under Subol by virtue of Subol''s demanding rent from them and for issuing notice to quit in the manner as indicated above. But in deciding the issue raised on behalf of the sub-tenants that question would incidentally have to be decided. Accordingly, I propose to take up the issues Nos. (8)(a) and (8)(b) at this stage.

Issues Nos. (8)(a) if (S)(b): It appears to me from the correspondence set out above that Subol was not sure of his position with regard to the sub-tenants. He knew beforehand that there were subtenants from whom Jhunjhunwallas were realizing large amount as rents. According to his evidence he was apprehending that if after the expiry of the lease the sub-tenants would continue to pay rent to the Jhunjhunwallas then it would not be possible for Subol to recover the said large sum from the sub-tenants and, as such, he asked for the rent to be paid directly by the sub-tenants to him pending the filing of the suit and the disposal thereof. Subol also stated in his evidence that he wanted the money so that with the help of the said money he could prosecute this suit. Whatever be the reason for demanding the said rent the fact remains that he actually demanded the said rent to be paid directly to him. Not only that, before the filing of the suit he also demanded possession from the sub-tenants for the reasons that they failed to pay rent as demanded by him. This notice which was given to the sub-tenants before the institution of this suit would clearly show that the subtenants were holding over as tenants under Subol within the meaning of Section 116 of the Transfer of Property Act, 1882. It is true that the sub-tenants did not accept that position inasmuch as they did not agree to Subol''s demanding rent from them and instead they deposited the rent with the Rent Controller but, in my opinion, that will not alter the position. The bilateral act as contemplated u/s 116 of the Transfer of Property Act, 1882, on the part of the sub-tenants was their continuance in possession of their respective portions in their occupation after the expiry of the lease and Subol''s assenting'' thereto in such continuance of possession in the manner as indicated above.

On behalf of the two sub-tenants, viz. Kathawalla Trading Co (P.) Ltd and Ghanashyamdas Nandalal, Mr. Guha submitted that demanding rent from the sub-tenants would amount to assent by Subol within the meaning of Section 116 of the Transfer of Property Act, and in support of the said contention he referred to the case of AIR 1949 336 (Nagpur) . In that case the Court observed:

That the mere act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. Something more must be shown to establish that the lessor assented to the lessee or sub-lessee continuing in possession. Thus if there is evidence to show, that rent was demanded from the lessee or sub-lessee or a suit for rent had been filed against him or something of the kind was done, a presumption would arise under the section that" the lessor assented to the lessee or sub lessee continuing in possession.

From the aforesaid observation Mr. Guha contended that a mere demand for rent would constitute the lessors assent.

In the case of Sheo Dulare Lal Sah Vs. Anant Ram and Another, the Division Bench of the Allahabad High Court considered a case where rent was demanded by the landlord after the expiry of the lease and that was construed as constituting assent on the part of the landlord to the tenant''s continuing in possession in accordance with the provisions of Section 116 of the Transfer of Property Act.

In this case, Subol has not only demanded rent from the sub-tenants but has also served a notice to quit on the sub-tenants before filing the suit herein. It is true that the'' said notice was not a formal notice of ejectment or a notice of suit either u/s 106 of the Transfer of Property Act or u/s 13(6) of the West Bengal Premises Tenancy Act, 1956, yet the language of the notice would suggest that the Plaintiff was proceeding on the basis that the sub-tenants were continuing in possession by reason of Subol''s assent. Under those circumstances, in my opinion, the Defendants Nos. 6 and 7 had. acquired a right of monthly tenancy in respect of their respective portions in their occupation at such rents as were being paid by them to the Jhunjhunwallas and, as such, those two Defendants Nos. 6 and 7 were entitled to a notice to quit under the provisions of the West Bengal Premises Tenancy Act, 1956, and the notice u/s 106 of the Transfer of Property Act. No such notice appears to have been served on the Defendants Nos. 6 and 7 and the notice dated August 8, 1963, written by M/s. R.C. Basu & Co. to the three sub-tenants did not seem to have complied with all the requirements of a notice to quit under the law. In any event, the ground made out in the notice, viz. failure to pay rent to Subol was not a good ground for ejectment because the sub-tenants had been depositing the rent month by month and every month and had never made any default in respect thereto. Accordingly, issues Nos. (8)(a) and (8)(b) are answered as follows:

Issue No. (8)(a): Yes.

Issues No. (8)(b): No.

Issue No. (6): The lessees Defendants contended that all the heirs of the then lessor should have been made parties to this suit because the allotments had taken place during the subsistence of the lease. The allotments were made on partition between the different heirs of the original lessor during the subsistence of the lease. By reason of such partition the original tenancy covered by the lease was not severed. In other words, the joint Receivers attorned Subol in respect of the back-east portion of premises No. 11 Rup Ghand Roy Street, Calcutta, by calling upon the lessees to pay rent at the rate of Rs. 37 per month which was assessed by them in respect of the said back-east portion. Accordingly, it was urged that the suit by the Plaintiff alone was not maintainable and was bad for non-joinder of parties. On the question of splitting up of the tenancy it is in evidence before me that the said back-east portion of the said premises had been completely separated from the other three portions thereof. The interest of the sub-tenants in occupation are also limited to the said portions of the said premises and the same did not extend beyond the said back east portion. The premises had been partitioned by metes and bounds. The Jhunjhunwallas paid rent to Subol at the rate of Rs. 37 per month. In other words, they accepted the position as indicated in the said letter of adornment written by the joint Receivers. It is further in evidence that the rent suit was filed by Subol against the Jhunjhunwallas and the said suit was settled by payment of all arrears of rent claimed by Subol. These facts would go to show that the tenancy was split up or severed and the Jhunjhunwallas also accepted the said position. In any event, the lease has since expired by efflux of time and there could be no point in joining all the other co-sharers whose rights over the said premises had all been defined and apportioned under the partition decree.

Mr. Bachawat, appearing on behalf of the lessees Defendants Nos. 1 and 2, relied on the case of Smt. Durgarani Devi v. Mohiuddin and Ors. 86 C.L.J. 198 (213) and particularly drew my attention to the passage as follows:

It is, therefore, quite clear that one of the joint landlords could-not terminate the tenancy before partition by a notice to quit I do not see how his position is improved after partition. There is no severance of the tenancy by reason merely of such partition. There is no separate demise in respect of the divided part of the reversion and the landlord to whom a divided part of the reversion has been allotted acquires no right by reason merely of the partition to terminate the tenancy by giving notice to quit as to that part.

In that case an ancestral property was partitioned between five branches of co-sharers. The plot of land in suit was partitioned in five plots and the divided plots were allotted to the five several groups of co-sharers. The Defendants who were the tenants were aware of the partition. They paid rent to several groups of co-sharers in respect of their undivided plots of land. Upon the tenants'' committing default in payment of rent regularly the several groups of co-sharers instituted separate suits in the Court of Small Causes against the tenants for realisation of arrears of rent. Several decrees were passed in such suits against the Defendants. The plot of land which was the subject-matter of the said suit was allotted to Monilal. On May 14, 1945, Monilal obtained a decree for rent in respect of his divided portion, ex parte against the Defendant No. 1 and by consent against the other Defendants tenants. There was correspondence exchanged by and between the Solicitor of Monilal and the tenants wherein Monilal was described as the land-. lord and that the tenants were holding the premises as monthly thika tenants under Monilal. In October 1945, Monilal and two others conveyed the said plot in favour of the Plaintiff. The Plaintiff gave a notice to quit on the Defendants and "filed a suit on August 13, 1946. The question arose in that case as to whether the tenancy of the Defendants in respect of the entire plot of land was split up or did it remain a single tenancy and, if so, what was the effect of the notice to quit in respect of that particular plot. The point was of first impression. Bachawat J. (as he then was) considered the said point from various aspects and came to/the finding that after partition the Defendants voluntarily paid to Monilal rent in respect of the divided portion of the premises allotted to him. There was further finding that the tenants were aware of the partition between the co-sharers landlords and on the basis of such partition paid rent to Monilal and to several other co-sharers landlords. The Court also took notice of the fact that the suits were lied to realize rents in respect of the said divided portion and that such suits were decreed and the tenants except one consented such decree. On those findings it was held that the tenants recognised the severance of the reversion and acknowledged the title of )f the owner of the severed part and, accordingly, it was held that he notice to quit in respect of the separate plot of land was good notice to quit and the suit was decreed for possession.

In the case before me also the facts are somewhat similar. After partition the tenants paid rent to Subol from time to time. There was default in payment of rent. Subol filed suit for arrears of rent. The suit was settled by consent. There is enough evidence, both documentary and oral, wherefrom I come to the finding and I hold that the tenancy in respect of the said back-east portion was severed from the rest of the premises and from the rest of the tenancy and the tenants recognised the same all throughout.

Under those circumstances, the above-quoted passage in the said judgment of Bachawat J. cannot apply to the facts of this case just as the same was not applied in the facts of the case before Bachawat J. In my opinion, Durgarani''s case (Supra) is not in favour of the Jhunjhunwallas and, accordingly, I negative his contention on the materials before me.

Mr. Bachawat also wanted to raise another point on this issue. His contention was that one of the heirs of the original tenant by the name of Kashi Prosad was not intimated about the said partition and a copy of the letter of adornment of the said joint Receivers was not addressed to him. When the point was taken in the written statement that Kashi Prosad was a necessary party the Plaintiffs joined him as a party Defendant after obtaining an order for amendment to that effect. Accordingly, Mr. Bachawat contended that the letter of adornment was bad and insufficient.

I have already discussed under what circumstances the rent was paid and how the suit for rent was filed and settled by consent of the parties. In my opinion, the purpose of serving a letter of adornment is to fix the tenants with notice that he would be liable to pay rent to the person named in the notice and if, after receiving such letter of adornment, he would go on paying rent to any other party the tenant would remain liable to the proper party who has given the letter of adornment. The letter of adornment cannot go to affect the title to the property which passes on partition: See Shankar Shaw Vs. Anukul Ch. Bose, .

That being the position, in my opinion, Mr. Bachawat''s contention cannot hold good. In any event, the point could have been urged in the additional written statement after the order for amendment was made and the direction to that effect was given. But no such additional written statement was filed nor the said point was ever pleaded. Furthermore, Kashi Prosad did not him self come forward to take this point, or to contend that he did not accept Subol as his landlord or that he had no contribution in the sum of Rs. 37 which was paid as monthly rent to Subol, ever though he entered appearance in this suit. Under those circum stances, I answer issue No. (6) in the negative.

Issue No. (5): On the question of payment of compensation for the building after the expiry of the lease, the document of lease is silent. Clauses 3 and 9 of the lease would require consideration for the purpose of finding as to whether the lessees would be entitled to compensation after the expiry of the lease. The said provisions are as follows:

That the lessee shall erect on the demised premises within five years from the date of these presents a hew building in accordance with such plan as the lessee shall in his own discretion think fit subject to "the sanction of the municipality and that such building shall be a three storied one. Provided the height thereof is sanctioned by the municipality and that the lessee shall before submission of any plan of the building to the Corporation for its sanction show the same to the lessors and supply them free of cost with a copy thereof, but such plan shall not in any way be subject to the lessors approval and that the lessee shall for the purpose of such building be at liberty to use such building materials as they think fit and proper. Provided always that they shall not use any old building materials provided also that the costs of the new building to be erected as aforesaid shall not be less than the sum of Rupees twenty thousand and provided also that the lessee shall keep the same in thorough good order during the term hereby erected by repairing'' the same in such manner as is usually done to houses in Calcutta and for the purpose of building as aforesaid it shall be lawful for the lessee to demolish and sell the existing buildings on the demised premises belonging to the lessors.

That the lessee shall peacefully and quietly leave surrender and yield up unto the lessors the said demised premises together with the building to be erected thereon at the end or sooner determination of the said term together with all doors windows fastenings water closets and all such other things which within the said term may be fixed or fastened to the said demised premises or- to the building erected thereon or any part thereof as may not be removed without injuring the demised premises and the building erected thereon.

From the aforesaid clauses it appears that there was an existing structure at the time of the said demise and the lessees were'' given liberty to demolish and sell the existing building and to construct thereon a new three storied building. The lessees were further to leave, surrender and yield up to the lessors not only the land but also the building to be erected thereon upon such expiry. The clause ''as may not be removed without injuring the demise premises'' would clearly suggest that only, the movables could be removed and anything which was attached to the building or so fixed or fastened to the demise premises, could not be taken away by the lessees. In my opinion, had the parties intended that the lessees were to get compensation for the building the same would surely have been provided in the lease expressly. Mr. Bachawat drew my attention to the several precedents from Kelley''s on Draftsman (15th ed., pp. 86 and 87) and Key and Elphinstone''s Precedents in Convincing (1953 ed., p. 1110). I have considered those precedents and, in my opinion, the same are not applicable to a case like the one before me. In my opinion, in a lease of this nature in order to get compensation from the lessors in respect of the buildings or structures there must be a specific and express provision to that effect. In the absence of such express provision the Court would be inclined to hold that the parties did not intend that any compensation would be paid to the lessees for the said structures on the expiry of such lease.

My attention had been drawn to Section 108(h) of the Transfer of Property Act which provides to the effect that in the absence of any contract to the contrary the lessee would be entitled to remove while in possession all things which he had attached to the earth provided he would leave the property in the state in which he received it. One of the terms of the said lease is that the lessees were to demolish the existing structures and to construct a new three storied building. The building was built in terms of the contract. If the lessees would have failed to erect the said three storied building then the lessees would have been guilty of breach of contract and the lessors would have re-entered into the premises. Accordingly, the expression ''all things which he has attached to the earth'' as provided in Clause (h) of Section 108 of the Transfer of Property Act would not include such a building which was erected in terms of the lease. During the subsistence of the lease the lessees had no doubt the right of enjoyment over the said building, but after the expiry of the lease the position of the lessees is that of trespassers and the right over the immoveable property is also extinguished and, accordingly, no compensation is payable for building. In my opinion, after the expiry of the lease the building formed part of the demised premises and the lessors became entitled thereto. Accordingly, I hold that the Defendants are not entitled to any compensation in respect of the structures or buildings standing on the said demised premises. The issue is accordingly answered in the negative.

Issue No. (3): On the question of mesne profits Mr. Bachawat contended that the Plaintiff was not entitled to any mesne profits from the date of the expiry of the lease because after such expiry the sub-tenants were made the tenants by the Plaintiff in terms of Section 116 of the Transfer of Property Act. Mr. Bachawat''s contention was that the Plaintiff could not claim mesne profits from the lessees Defendants and also rent from the sub-tenants for the same occupation. Mr. Bachawat also contended that by reason of the Plaintiff''s acts and conduct in the matter of holding over tenancy by the sub-tenants the lessees Defendants could not be liable for any further mesne profits inasmuch as the Plaintiff himself could have collected the rent from the sub-tenants. Mr. Bachawat cited before me the case of Sudhir Kumar Bose v. Phanindra Kumar Sanyal.

In my opinion, that case has no application to the facts of the case before me. In that case, Sen J. considered a case where the tenant wanted to surrender his tenancy and intimated the landlord by a notice stating, inter alia, that the tenant was not in a position to make over possession of the portion occupied by the subtenants because of the provisions of the relevant Rent Act. On the basis thereof Sen J. held that, under such circumstances, the tenant was not liable to pay mesne profits because he was unable to give up his possession on the expiry of the notice of the determination of the lease. In the case before me the lessees Defendants did nothing of the kind and instead contended all throughout that they were also tenants by holding over. In view of my finding that the lessees Defendants were not tenants by holding over, in my opinion, the lessees Defendants would be liable to pay mesne profits. They asserted a right which they did not possess.

Of the question of quantum of rent payable by the subtenants to the lessees Defendants, neither the lessees Defendants nor the sub-tenants have produced the relevant documentary evidence. No rent bills have been produced by any of those parties. Subol has given oral evidence on this point on the basis of information collected by him. The Bhotika subtenants have not appeared before me. According to Subol, Bhotikas were paying Rs. 250 per month to Jhunjhunwallas for occupying the entire second floor of the said premises allotted to Subol. There are four rooms of medium size on the second floor. Excepting a mere suggestion by Mr. Bachawat that Subol was not in a position to contradict him if he had suggested that Bhotikas were paying Rs. 10 per month, there is no other evidence which was adduced on behalf of the Jhunjhunwallas. The Jhunjhunwallas were in a position to disclose the rent receipts and to adduce the positive evidence on the actual rent which was payable by the Bhotikas to them. In my opinion, they have deliberately withheld that evidence from Court. Accordingly, on the basis of Subol''s evidence I have come to the finding that the Bhotikas were paying Rs. 250 per month as rent. As regards M/s. Kathawalla Trading Co. (P.) Ltd. the evidence before me is that they had been occupying the entire ground floor of the said premises. The ground floor is being utilized as a godown. According to the evidence (6) Sudhir Kumar Bose Vs. Phanindra Kumar Sanyal, adduced on behalf of the said company originally the rent was fixed at Rs. 300 per month and in the rent control proceedings the rent was standardized by consent at a sum of Rs. 200 per month in May 1963. In cross-examination the director of the said company Sriram Bari told the Court that they were tenants of the said premises in suit since about 20 years back and they were paying rent at the rate of Rs. 300 per month. This continued for about a year and upon request being made the landlord reduced the rent to Rs. 250 per month. The witness has also admitted that the Jhunjhunwallas gave a notice of enhancement of rent, but the said document had not been disclosed on behalf of his company because they were not advised to do that. In the absence of rent control records or the orders passed by the Rent Controller which have not been called for, it is difficult to believe the oral testimony of Sriram Bari on this point. Accordingly, I shall proceed on the basis that rent was Rs. 250 per month. I should also mention here that in cross-examination of this witness Mr. Guha showed me the rent bill but ultimately for reasons best known to his clients the same was not tendered by him. (Q.7).

On behalf of the Defendants Nos. 7 and 7A Mr. Guha called one Natwarlal Govindji. He is an accountant of a firm known as Bombay Stainless Steel House where, according to the witness, Ghana-shyamdas Nandalal is a partner. According to him, Ghanashyamdas Nandalal is the name of a single person. Nandalal is the father and he has no connection with the said Ghanashyamdas Nandalal who is the son. The oral testimony of the witness is that the said Ghanashyamdas Nandalal pays Rs. 100 per month. When asked as to where the said Ghanashyamdas Nandalal was, the witness stated that he was out of the station and he left Calcutta about four or five days ago for Bombay.

In my opinion, there is no reason why the evidence of this witness should be accepted in the absence of Ghanashyamdas Nandalal who could have come to the witness-box. Furthermore, in this case also the rent receipt has been withheld from this Court. According to the witness there is one room and in the vacant space there is a shed overhead and a verandah on the south side. According to the witness, he father Nandalal also lives in the same premises. From the said firm of Bombay Stainless Steel House Ghanashyamdas Nandalal withdraws a sum of Rs. 300 per month as his personal expense. The monthly sum of Rs. 100 which is deposited with the Rent Controller''s Court would not find any place as an entry in the books of account of the Bombay Stainless Steel House. In any event, the books of account have not been disclosed nor produced before this Court. In cross-examination it appears that the witness was appointed as an employee of the said firm some time in 1964. There-fore, it is clear that he could not be in a position to say what was the monthly rent that used to be paid by Ghanashyamdas Nandalal or by the Defendants Nos. 7 and 7 A prior to his appointment, i.e. at the relevant point of time. According to Subol, the said father and the son were paying rent at the rate of Rs. 300 per month and he came to know about the same from enquiries made from the local people. When asked as to what could be the reason why the rent should be reduced to Rs. 100 Subol stated that there was reason for that and the reason was that before the lease came to an end this arrangement was arrived at with the lessees and the tenants amongst themselves to deprive Subol of his legitimate dues and this he came to know from enquiries.

I am convinced that the Jhunjhunwallas Defendants deliberately withheld evidence of monthly rental payable by the said three sub-tenants in collusion and in conspiracy with each other.

Considering the floor area and considering the evidence on record and the position of the premises in the heart of Burrabazar in Calcutta, in my opinion, a sum to the extent of Rs. 700 per month could have been realised by Subol if the Jhunjhunwallas had delivered possession to Subol in May 1963, i.e. on the date of the expiry of the said lease. By reason of the wrongful act on the part of the Jhunjhunwallas in continuing in possession of the said premises Subol lost the benefit of the same by way of damages and of mesne profits and on the basis thereof I hold that a sum of Rs. 700 per month should be assessed as the mesne profits which is to be payable by the lessees Defendants to the Plaintiff.

Issue No. (7): The only other issue that remains to be decided is whether Nandalal is a necessary party. I have already discussed the evidence of Natwarlal Govindji, and on this point I am inclined to believe his testimony and come to the finding that Ghanashyamdas Nandalal is the name of the son and the son only was a tenant under the Jhunjhunwallas and even though the father resided with the son the father had no interest in the tenancy. That being the position, I hold that Nandalal is not a necessary party. The suit as against Nandalal is dismissed with no order as to costs.

Issue No. (9): The result is that the Plaintiff has partly succeeded and partly failed. The Plaintiff is entitled to a decree for possession as against the Defendants Nos. 1, 2, 3, 4A, 5 and 5A only. There will be a decree for mesne profits at the rate of Rs. 700 per month from May 15, 1963, till the date of the decree as against the aforesaid Defendants. The suit as against Defendants Nos. 6, 7, 7A, 8, 9, 10 and 11 except as hereinafter provided is dismissed. The Plaintiff will be entitled to costs of this suit as against the Defendants Nos. 1 to 5A. The Plaintiff will be entitled to all sums deposited with the Rent Controller and with the Official Receiver, by and on behalf of the Defendants Nos. 6 to 7A or by Ghanashyamdas Nandalal as the case might be or by any of the Bhotikas and would apply the same in pro tanto satisfaction of the decree for mesne profits. Mr. Banerjee has not pressed for his client''s claim for damages on account of repairs. There will be no order as to costs against Defendants Nos. 6 and 7.

Certified for two counsel. The operation of the decree is stayed for a month from date.