Swadesh Ranjan Sinha vs Haradeb Banerjee

This appeal is directed against the judgment and decree dated May 25, 1982 passed by the learned Subordinate Judge, 3rd Court, Howrah in Title Appeal No. 142 of 1981 reversing those of the learned Munsif, 3rd Court at Howrah dated April 24, 1981 passed in T. S. No. 165 of 1977.

The plaintiff-appellant instituted the said suit against the defendant-respondent for eviction from the suit premises and mesne profit. The suit premises comprises a third floor flat of a Howrah Improvement Trust building located at Kadamtola within P. S. Bantra. The plaintiffs case is that the plaintiff is the owner of the said flat and the defendant was a monthly tenant under him in respect of the flat at a monthly rental of Rs. 110/-payable according to English calendar month. The defendant defaulted in payment of rent from February, 1976. The plaintiff reasonably requires the suit flat for his own use and occupations. He has no alternative suitable accommodation. The defendant''s tenancy was determined by service of a combined notice u/s 106 of the T. P. Act and Section 13(6) of the West Bengal Premises Tenancy Act expiring on the last date of December, 1976 but the defendant did not comply with the notice. Hence the suit.

The defendant contested the suit by filing a written statement in which the alleged grounds of ejectment were denied. The service of the notice and the legality and validity thereof was also challenged.

Upon consideration of the evidence the learned Munsif has held that the tenancy was determined on the expiry of December, 1976 by service of a valid notice of ejectment. He has further held that the defendant was a defaulter but was entitled to protection against eviction under S. 17(4) of the West Bengal Premises Tenancy Act. He has accepted the plaintiffs case that he is the owner of the suit premises and he reasonably requires the suit premises for his use and occupation and that he is not in possession of any other reasonably suitable accommodation. He has accordingly passed a decree in favour of the plaintiff.

In the appeal preferred by the defendant being Title Appeal No. 142 of 1981, the lower appellate Court has held that the plaintiff being a lessee of the disputed premises is not owner within the meaning of S. 13(1)(ff) of the West Bengal Premises Tenancy Act and as such he has not considered the question whether the plaintiff reasonably requires the suit premises for his own occupation and whether he is in possession of reasonably suitable accommodation and allowed the appeal setting aside the judgment and decree of the trial court. Being aggrieved the plaintiff has preferred this second appeal.

The appellant has filed an application under O.41, R. 27 of the C.P. Code for accepting the bye-laws of the Kadamtola Housing Cooperative Society Limited of which the appellant is a member, the share certificate and the registered deed of lease dated 22nd March, 1990 between the Calcutta Metropolitan Development Authority and the Kadamtola Housing Cooperative Society by which the said Housing Society was granted lease of the disputed four storied building containing 16 flats for a period of 99 years with an option of renewal for another 99 years with right to grant sub-lease for the same period to its members under its own rules and regulations. There is no dispute that the plaintiff is a member of the said Kadamtola Housing Corporative Society and that the dispute flat has been allotted to him and that the plaintiff is a sub-lessee under the said Housing Society. The documents annexed to the petition may be admitted as additional evidence. It appears that the erstwhile Board of Trustees of the Howrah Improvement Trust, in implementation of a Housing accommodation Scheme for providing residential accommodation to persons of Low Income Group having annual income not exceeding Rs.6,000/- erected 16 units four storied building in question as Scheme No. I and allotted those fiats to persons within the income group mentioned above on long-term lease basis after formation of Registered Cooperative Society amongst themselves. The disputed flat was allotted to the plaintiff who paid the entire consideration of Rupees 15,500/-. Thereafter, all the allottees formed a Registered Cooperative Housing Society named Kadamtola Cooperative Housing Society Limited registered under the Registration No. 4 dated 16-7-74. Thereafter, the Calcutta Metropolitan Development Authority granted lease in favour of the said Housing Cooperative Society in respect of the entire building with effect from 19-11-73 and the said Housing Society in its turn granted sub-lease to the plaintiff for the same term in respect of the disputed flat. The admitted position, therefore, is that the plaintiff a sublessee under the Kadamtola Housing Cooperative Society Limited who in its turn as a lessee under the Calcutta Metropolitan Development Authority for a term of 99 years with an option of renewal for another 99 years.

The question that arises for consideration in this appeal is whether a lessee or a sub-lessee is owner of the premises within the meaning of S. 13(1)(ff) of the West Bengal Premises Tenancy Act. Mr. Bhattacherjee, learned Advocate for the appellant has contended that the term ''owner'' in S. 13(1)(ff) of the West Bengal Premises Tenancy Act does not mean absolute owner. Simultaneous existence of all the incident of ownership is not imperative to constitute the ownership of the property and the lessee or sub-lessee for a long term of 99 years with an option for renewal for another 99 years having uninterrupted right of possession and enjoyment is ''owner'' within the meaning of S. 13(1)(ff) of the Act. Mr. Samaddar has, on the other hand, contended that ''owner'' and ''lessee'' are different concepts. The expression ''owner'' occurring in S. 13(1)(ff) must be given its ordinary connotation and usual meaning i.e. a person having full and absolute ownership of the disputed property and would not include even a permanent lessee.

The expression ''if he is the owner'' in Cl. (ff) of S. 13(1) refers to the ownership of the premises. The question is not who is the owner as between the lessee and his sublessee, but the question is who is the owner of the premises.

The word ''owner'' has been defined in Black''s Law Dictionary as follows : "The person in whom is vested the ownership, dominion, or title of property; proprietor. He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right". In the 7th Edition of the Jurisprudence at page 367 Salmond expresses his view as follows:

"Ownership in its most comprehensive signification denotes the relationship between a person and any right that is vested in him. That which a man owns in this sense in all cases a right".

If ownership is understood in the sense that it is a right, then, when two persons have certain rights in a thing it cannot be said that both of them are owners. When the rights are the same and equal rights both the persons are joint owners of the thing. But when rights are different or unequal, namely, one having lesser right than the other, both the persons cannot be regarded as owners in view of the well established principles of jurisprudence that "ownership has the characterstic of being indeterminate in duration" and the "ownership has a residuary character". The rights of the owner when contrasted with the lesser rights of the possessor and the encumbrancer, "are indeterminate and residuary in a way in which these other rights are not" (Salmond''s Jurisprudence 12th Edition pages 247-248). So, in the case of persons having unequal rights in a thing, the person whose rights are indeterminate and residuary is the owner of the thing and not the other persons having only lesser rights.

According to R.W.M. Dias a person is owner of a thing when his interest will outlast the interest of other persons in the same thing. This is substantially the view of many modern writers who have variously described ownership as the ''residuary'', the ''ultimate'' or "the most enduring interest". An owner may be divested of his right to such an extent that he may be left with no immediate practical benefit. He remains owner nonetheless. This is because his interest in the thing, which is ownership, will outlast that of other persons, or if he is not presently exercising any of his rights, this will revive as soon as those vested in other persons have come to an end. The view of Dias substantially agrees with that of Salmond. According to Dias ownership is the outlasting interest; according to Salmond ownership has the characterstic of being indeterminate in duration and residuary in nature.

From the above it is clear that a lessee of a property who has sub-leased the same in favour of another is not owner, for obviously the interest of lessee is not the most enduring interest and will not outlast the interest of the lessor. His right is not better as it does not last longer. "The right of an owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees, and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet he nonetheless remains the owner of the thing, while all others own nothing more than rights over it". (11th Edition of Salmond''s Jurisprudence at page 302 under Art. 90). The decision in Kally Das Ahiri v. S. M. Monmohini Dassi 1 CWN 321 which was approved by the Privy Council in 14 CWN. IPC may also be referred to. In that case it has been observed by Jenkins, J, that a man who being the owner of the land grants a lease in perpetuity, carves a subordinate interest out of his own and does not annihilate his own interest; that this result is to be inferred by the use of the word ''lease'' which implies an interest still remaining in the lessor; that before the lease the owner had the right to enjoy the possession of the land and by the lease he excluded himself during its currency from that right, but the determination of the lease is a removal of that barrier and that there is nothing to prevent the enjoyment from which he had been excluded by the lease.

It is clear from the above discussion that a lessee or a sub-lessee for a long term is not the owner of the premises within the meaning of the expression ''if he is the owner'' in S. 13(1)(ff) of the West Bengal Premises Tenancy Act. This view is supported by the decision of M. M. Dutt, J. in Nishikanta Roy Vs. Monmohon Sen Gupta,

The word ''owner'' in the unamended Cl. (f) has been interpreted and construed by a Division Bench of this court consisting of P. N. Mookerjee and A. K. Dutt, JJ. in Yoga-maya Pakhira v. Santi Sudha Bose ILR (1968) 2 Cal 70. It has been held that the word ''owner'' must be given its ordinary connotation or usual meaning, that is, a person having full and absolute ownership of the premises and that a lessee and even a permanent lessee cannot be said to be the owner within the meaning of Clause (f). The two expressions ''owner'' and ''permanent lessee'' are not synonymous. The said decision has been followed in the subsequent Bench decision in Carritt Moran & Co. (P) Ltd. v. Ranco Limited ILR (1969) 1 Cal 347. These Bench decisions are binding on me and I am bound to follow the same. It may be mentioned here that in the substituted Class (ff) the expression ''if he is the owner'' is retained and the two Division Bench decisions referred to above would equally apply to Clause (ff) of S. 13(1) of the West Bengal Premises Tenancy Act.

The appeal is, therefore, dismissed and the judgment and decree of the lower appellate court are affirmed. I make no order as to costs.

Appeal dismissed.