Nageswar Majumder and Another Vs Srimati Savita Dey.

A.M. Bhattacharjee J.

1. The main, if not the sole, question involved in this First Appeal is whether a lease for a certain term fixed by the deed of lease would cease to be if the lessor has the unfettered right or option to template the lease at any time before the expiration of the term so limited. An affirmative answer would require us to allow the appeal a negative answer would warrant its dismissal: While one may, as one should, respectfully agree with Sir Henry Maine that "the movement of progressive societies had" (at least upto the time when Maine wrote his ''Ancient Law''), "been from status to contract", one would also with respect, agree with Lord Simon (see, Johnson v. Merston. (1978) 3 All ER 37) that since the days of Maine, the movement of many progressive societies has been the reverse, that is, from contract to status.

2. The relationship of master and servant, or creditor and debtor or landlord and tenant, which used to be governed by contract alone, is now regulated by statutes which have invested the servant, the debtor or the tenant with appreciably secured status. Gone are the days when a hired servant or a hire tenant could be fired at whim or pleasure.

3. As is well-known, the West Bengal Premises Tenancy Act of 1956. like the other cognate legislations in other States, was enacted with the avowed object to give protection to the tenants and, as has been pointed by Division Benches of this Court in Kameswar vs. Sahadeb (74 Cal WN 715 at 729) and in Ruby Banerjee vs. Mechanico Enterprises 1987-2 Calcutta High court Notes 1 at 4) each time the legislature has amended the Act, the law is made more and more favourable to the tenants and unfavourable to the landlords.

4. Even if the tenant was granted a tecency under a deed of lease for a fixed period only, the contractual right of the landlord to recover back the demised property on the expiry of the period has been done away with. Whether one refers to the Federal Court decision in Kai Khusroo Bejonjee Capadia (AIR 1949 Federal Court 124) or to the decisions of the supreme court in Firm Sardarilal Vishwanath and Others Vs. Pritam Singh, or in V. Dhanapal Chettiar Vs. Yesodai Ammal, the position appears to be that the landlord, on the introduction of the rent Restriction Acts, cannot seek to evict a tenant only on the ground that the lease has determined by efflux of time and can eject the tenant only on the specified grounds mentioned in the Acts.

5. The West Bengal Legislation, like of her allied legislations in other states, has however thought it fit to preserve the contractual rights of the landlord unaffected by the statute, if a lease for considerably long period has been granted to the tenant. Section 3(1) of the West Bengal Premises Tenancy Act has accordingly provided that "nothing in this Act shall apply to any premises held under a lease for a period or more than 20 years. The Legislature obviously thought that once a tenant''s tenancy is secured for a considerably long period of more than 20 years, or more than 15 years, as the case may be, the landlord may reasonably be exempted from the rigours of the Act disentitling the landlord to evict tenant except on grounds specified in Section 13 and thus exploring him to recover possession on the ground of expiration of lease or other contractual grounds.

6. The Deed of Lease between the parties was executed in 1954 and ourported to be for 21 years and therefore the material provisions for our consideration would be Section 3(1) of the Act and not Section 3(2) which would apply only to leases executed after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965, i.e. after 24.8.65.

7. But, as already noted, in order to come within Section 3(1) and thus to go out of the rest of the Act, "the premises" must be "held under a lease for not less than 15 wars" or 20 years, as the case may be. "Premises", as defined in Section 2(f) of the Act. means a building (or hut) which is let out. Premises, so defined, can be owned by a landlord, but can be held only by a tenant or leases. The expression "Premises held under a lease for more than 20 years" or "for not less than 15 years" would mean a let-out building which the tenant or the lessee can hold for not less than 15 or for more than 20 years as of right. In order to stand out of the Act under the provisions of Section 3(1), the landlord must show that the landlord has granted and the tenant enjoys an unfettered ht to hold the premises for such period. But where, though otherwise purporting to grant a lease for, say, 21 years, the landlord reserves to himself the right to terminate the same at his option at any time before the expiry of the period, the tenant of such a precarious tenancy cannot be said to have the right to hold the premises for the specified period and once the tenant cannot be said to have such right to hold the premises for such period, the premises can no longer be regarded to be held under a lease for 21 years. As already stated, the Legislature in enacting Section 3(1) thought if fit that once a landlord has unreservedly granted such a long lease entitling the tenant to hold the premises without any right reserved to the landlord to determine the lease earlier, the landlord should be relieved of the rigours of the provisions of the Act.

8. In the Division Bench decision of this Court in Mahindra & Mahindra Vs. Kohinoor Debi 1989-1 Calcutta High Court Notes 1 at 11) this question has been adverted to, though not finally decided as not being necessary for the disposal of the matter therein. It has been pointed out in Mahindra &Mahindra (supra) that there are authorities for the view that a lease, even though evowedly for a fixed term, would not be considered as such a term-lease if the same is determinable before its expiration at the option of the landlord and reference was made to the English decision in Morton vs. Woods (LR 3 Queen''s Bench 658). The Division Bench found good reasons for that view and pointed out that if a landlord while purporting to grant a lease for more than 20 years reserves to himself the unconditional right to determine the same at any point of time before the term fixed, the premises may not be regarded to be held under a lease for the term fixed for the purpose of Section 3(1) in order to go out of the provisions of the Act. The fixation of the period of lease in such a case may only be a camouflage and manoeuvre to evade the provisions of the premises Tenancy Act, not to be countenanced by any Courts

9. The same view has been held in an old Division Bench decision of the Allahabad High Court in Khuda Baksh vs. Sheo Din ILR 8 All 405) where Mahmood, J., held that If a Kabuliyat provided for ejectment at any time on the giving of a notice, any term in it with respect to the period of the lease would fall to the ground. To the same effect is also a single - judge decision of that Court in Sahu Bisheshar Nath and Another Vs. Abdul Wahid, In the Division Bench decision of the Rajasthan High Court in Lal Chand Vs. Radha Ballabh, Wanchoo, C.J. (as his Lordship then was) relied on the decision of Mahmood, J. in Khuda Baksh Vs. Sheo Din (supra) and held that if a Kabuliyat fixed a period for the tenancy for a number of years and at the same time provided for ejectment of the lessee on notice at any time, the term of years fixed would fall through.

10. The Deed of lease in this case, Ext. 1, though purporting to be for 21 years clearly reserves to the landlord the right to terminate the lease by notice at any time after four years and two months from the commencement of the lease in July. 1964. The lease was therefore, only for fouryears and two months certain which was so arranged for the adjustment of rent received in advance. A lease for such fixed period of 4 or 5 years do not and cannot cease to be governed by the provisions of the premises Tenancy act in any view of the matter.

11. For the reasons stated herein before and in view of the observations of this court in Mahindra & Mahindra (supra) and the decisions of the Allahabad High Court in Khuda Baksh Vs. Sheo Din (supra) and in Ghasi Ram Vs. Malomy Club (supra) and of the Rajasthan High Court in Lal Chand Vs. Radha Ba Uabh (supra), we would hold that in view of the clear right reserved to the landlord to terminate the lease by a notice to quit, the period of 21 years purported to be fixed by the Deed of Lease was of no effect to bring the case within Section 3(1) and to take it out of the provisions of the West Bengal Premises Tenancy Act.

12. It should, however, be noted that the deed of Lease. Ext. 11 also reserved a similar right to the tenant also to terminate the lease by notice to quit. The lease having been executed before the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance of 1965, would be governed by the provisions of Section 3(1) and, as held in Mahindra &Mahindra (supra, at 11), a lease for fixed term would not cease to be so. If it is determinable before its expiration at the option of the tenant only, as the security and duration of the term of his tenancy is in no way affected by any action of the landlord and he continues to have the unfettered right to hold the premises for the period fixed. It is true that u/s 3(2), such an option even in favour of a tenant also In respect of post-ordinance leases, would bring such lease within the purview of the Act to be governed by its provisions. This is another instance where the legislature has amended the Law in favour of the tenant. But since we are in this case concerned with a pre-ordinance lease governed by Section 3(1) this aspect need not detain us.

13. As stated at the out-set, this is the main question involved in this appeal as the other ground urged by the learned Counsel for the respondent does not appear to have any substance. It has been urged that in a previous suit filed by the respondent-landlord against the appellants-tenants, the copy of Judgment whereof has been marked Ex. 3, the Court has observed that the lease in question, being for 21 years, the provisions of the West Bengal Premises Tenancy Act were not to apply in view of section 3. But the Suit was nevertheless dismissed on the ground of defect in notice under the Transfer of Property Act and was thus decided entirely in favour of the tenants-appellants who could have no occasion to file any appeal. Therefore, any observation made therein, including the applicability or otherwise of the premises Tenancy Act, 1956 to Ex.3 cannot operate as res Judicata.

14. The learned Counsel. for the landlord-respondent has however placed strong reliance on the decision of the Supreme Court in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, in support of his contention that the finding as to the non-applicability of the provisions of the Premises Tenancy Act would nevertheless be res judicata against the tenants notwithstanding the dismissal of the Suit in their favour. The contention appears to us to be rather startling and we are relieved to find nothing In the said decision against the well-settled view that where a Suit is entirely dismissed, adverse findings made therein against the defendant would not operate as resjudicata. All that has been decided in Gangappa Gurupadappa (supra) and in the decision relied on therein in Vithal Yeshwant Jathar Vs. Shikandarkhan Makhtumkhan Sardesai, is that if the final decision in any matter at issue between the parties is based by a Court on its decision on more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res Judicata between the parties. But this has in no way gone contrary to the well established principle that if a Suit is wholly decreed, no adverse finding against the plaintiff, of where a Suit is entirely dismissed, no adverse finding against the defendant, can found a plea of res-judicata against the successful party. There are myriads of precedents on the point, but a reference to the leading decision of the Privy Council in AIR 1922 241 (Privy Council) would suffice. A whole-sale decree in favour of the defendant wipes off, so to say, any adverse finding against the successful parry. As already noted, it has not been disputed by the learned Counsel for the landlord-respondent that once it is held, as we do hold, that the Deed of Lease, though in form for 21 years was in substance not so. the appeal must be allowed. The appeal is accordingly allowed and the Judgment and decree under appeal are set aside, but with no Order as to Costs.

Sunil Kumar Guin, J.

I agree.