C.N. Ray, J.@mdashThis appeal arises out of judgment and decree passed by the learned Judge, 4th Bench, City Civil Court, Calcutta in Title
Suit No. 1412 of 1978. By the aforesaid judgment a decree has been passed for eviction of all the defendants impleaded in the said Title Suit. The
defendants Nos. 3 to 14 have preferred the instant appeal impleading the plaintiff as respondent No. 1 and defendants Nos. 1 and 2 as pro forma
respondents Nos. 2 and 3. The said Title Suit was instituted by the plaintiff respondent No. 1 for eviction of the defendants from the disputed
premises being the back portion of 83, Rafi Ahmed Kidwai Road, Calcutta containing 18 rooms more fully described at schedule to the plaint. The
case of the plaintiff appellant No. 1 is inter alia that one Ranjit Kumar Bose since deceased was the owner of the entire premises No. 83, Rafi
Ahmed Kidwai Road, Calcutta and the said Ranjit Kumar Bose died on 30th June, 1968 after executing a Will whereby he bequeathed the entire
property to his wife, viz., the plaintiff and the said plaintiff was also appointed as sole executrix by the said Will.
2. The plaintiff applied for probate of the said Will in this Court and the said Will was duly probated by this Court and the plaintiff was appointed
as sole executrix of the said will to the estate of deceased Ranjit Kumar Basu. By an indenture of lease dated 12th Aug., 1959 entered into
between the said Ranjit Kumar Basu and one Haji Ansarullah, the said Ranjit Kumar Basu had demised the back portion of the said premises No.
83, Rafi Ahmed Kidwai Road, as described in the schedule to the plaint to the said Haji Ansarullah for a period of 21 years commencing from 1st
Sept., 1959 at a rental of Rs. 211/- per month payable according to English Calendar on the terms and conditions contained in the said indenture
of lease dated 12th August, 1959. A copy of the said lease was annexed to the plaint being Annexure ''A''. The plaintiff''s further case is after the
death of Haji Ansarullah, the defendants Nos. 1 and 2 became his heirs and legal representatives and as such became joint lessees under the
plaintiff on the terms and conditions contained in the said indenture of lease. The lessees had committed various breaches of covenants and the
plaintiff has set out instances of such breach of covenants in various clauses under paragraph 6 of the plaint. The plaintiff has contended that in view
of the said breaches committed by the said defendants Nos. 1 and 2 viz., heirs of Hazi Ansarullah the said lease stood forfeited and the plaintiff got
the right of re-entry to the premises and to recover the same from the possession of the defendants. It is also case of the plaintiff that the plaintiff
determined the said lease by a registered notice sent through her Advocate calling upon the said defendants Nos. 1 and 2 to quit, vacate and
deliver up the vacant and peaceful possession of the said premises on expiry of last date of Sept., 1977. A copy of the said notice dated 10th
August, 1977 has been annexed to the plaint being Annexure ''B''. The plaintiff has also contended that in spite of such termination of lease, the
defendants Nos. 1 and 2 have failed and neglected to deliver the vacant possession of the said premises and they are continuing as trespassers in
the said premises. It has also been stated by the plaintiff that defendants Nos. 3 to 14 are the sub-tenants and they have been impleaded in the suit
in order to avoid any future complicity of the proceedings and to avoid further litigation. It appears that the plaint was subsequently amended by
incorporating para 8A to the plaint wherein it has been stated that the said registered lease dated 12th August, 1959 made between lessor Ranjit
Kumar Basu since deceased and the said lessee Haji Ansarulla for a period of 21 years commencing from 1st day of Sept., 1959 has been
determined and has come to an end by efflux of time on the first day of Sept., 1980 and as such neither the legal heirs and representatives of the
deceased lessee Haji Ansarullah nor anybody holding under the said Haji Ansarullah has got any right, title, interest or to use, hold and to occupy
the suit premises. It appears that four sets of written statements have been filed. The defendant No. 1 Amina alias Anwara Khatoon has filed a
written statement inter alia denying the material allegations made in the plaint and it has been contended by the said Anwara Khatoon in her written
statement that there is no rent actually or legally due from the defendants and the claim for arrears rent since July, 1964 is illegal and fraudulent. It is
also contended by the said defendant No. 1 that the plaintiff even during the continuance of the said indenture of lease illegally trespassed up to
demised premises and on such re-entry collected monthly rents from the defendant tenant Md. Abbas at the rate of Rs. 30/- per month since
1974. The said defendant No. 1 has also contended that the plaintiff had collected illegally Rs. 362/- each month at the rate of Rs. 22/- from
fourteen tenants of the defendant lessee. In view of such realisation of rent by the plaintiff, the lease agreement was no longer pending and
enforceable. The defendant No. 1 has also contended that the plaintiff by her own illegal action has forfeited her right of re-entry and/or to
determine the said lease. The defendant No. 2 Noorjahan Begum has also filed a written statement and has contended that on the death of said
Haji Ansarulla the defendant No. 1 has inherited the tenancy right. It has also been contended that the defendant No. 2 did not commit any breach
of any of the covenants and as such the question of forfeiture of lease does not arise. The said defendant has also denied the service of any notice
and determination of the lease by the plaintiff. A separate written statement has also been filed by the defendant No. 5 Abdul Aziz and the said
defendant No. 5 has stated that he is neither the tenant under the plaintiff nor under the defendant No. 1. It has been further stated by defendant
No. 5 that his wife is the tenant under the defendant No. 1 and the said wife has been paying rent to the defendant No. 1 regularly and she
possesses the rent receipts for such payment. Defendant No. 5 has also denied that there is any relationship of landlord and tenant between him
and the plaintiff. A joint written statement has been filed on behalf of the defendants Nos. 3, 4, 6 to 14. The said defendants have stated in their
written statement that they are tenants under defendant No. 1 Amina Khatoon and they have been occupying their respective rooms as tenants of
Amina Khatoon on payment of rent to the said defendant No. 1 against receipts granted therefore. The said defendants have also denied the
existence of any relationship of the landlord and tenant between plaintiff and the said defendants and they have categorically stated in their written
statement that they are the tenants under the defendant No. 1. On the pleadings of the parties several issues were framed by the learned Judge
including issues Nos. 2 and 4 to the following effect : --
Issue No. 2 : Did Haji Ansarutlah commit breaches of the covenant in the lease deed dated 12-8-59 as alleged? Is the plaintiff entitled re-entry to
the said premises and recover possession from the defendants?
Issue No. 4 : Has the registered deed of lease dt. 12-8-59 made between Ranjit Kumar Basu and Haji Ansarulla for a period of twenty one years
commencing from 1-9-59 in respect of the suit premises been determined by efflux of time? If so, is the plaintiff entitled to get a decree for
recovery of khas possession of the suit premises?
It may be noted in this connection that in the prayer made by the plaintiff in the plaint no decree for eviction was prayed for against the other
defendants excepting the defendants Nos. 1 and 2 although the plaint was amended incorporating para 8A, the prayer was not amended. It
appears from the exhibits filed in the said suit that the plaintiff had realised rents from 7 tenants in respect of respective rooms under occupation of
such tenants for about four months from April, 1964 to June, 1964. On behalf of the plaintiff, the daughter of the plaintiff got herself examined and
the said witness being P. W. 1 has specifically stated in her deposition that the defendants Nos. 1 and 2 being heirs and legal representative of the
original lessee Haji Ansarullah failed and neglected to pay rent in respect of the said premises and on their request, rents were realised by the
plaintiff for few months from some of the sub-tenants. The plaintiff herself also deposed in the suit and she has also stated in her deposition that
such rents had been realised from some of the sub-tenants for few months at the instance of the defendants Nos. 1 and 2 but plaintiff had never
accepted the said sub-tenants as her direct tenants. It may be noted in this connection that the defendants Nos. 3 to 14 viz. sub-tenants declined to
give any evidence in the suit. The learned Judge after considering respective cases of the parties and evidences adduced in the case has inter alia
come to the findings that there is no evidence of any transfer or assignment of lease adduced on behalf of the plaintiff but there is some evidence of
sub-letting. The learned Judge has further observed that there is contention that some of the subtenants had been inducted even before the time of
the Haji Ansarullah and P. Ws. 1 and 2 have also deposed to that effect. But the learned Judge has not come to any finding as to whether or not
any sub-tenancy was created prior to execution of the indenture of the lease in favour of Haji Ansarullah by the lessor Ranjit Kumar Basu. The
learned Judge has come to the finding that since by efflux of time the lease has come to an end, the defendants Nos. 1 & 2 and also the sub-lessees
viz. the defendants Nos. 3 to 14 are bound by such determination of lease by efflux of time. In that view of the matter, the learned Judge has
decreed the suit on contest with costs against the defendants and it has been directed by the learned Judge that the defendants shall vacate the suit
premises within one month from the date of the judgment, failing which the plaintiff would get khas possession through Court by executing the
decree.
3. As aforesaid, the defendants Nos. 1 and 2 have not preferred any appeal against the said judgment and decree passed by the learned Judge in
the aforesaid title suit but the defendants Nos. 3 to 14 have preferred the instant appeal. Mr. Dutt the learned Counsel appearing for the said
defendants Nos. 3 to 14 viz. the appellants in the instant appeal has contended that the defendants Nos. 3 to 14 do not intend to contend that the
decree for eviction passed against the defendant Nos. 1 and 2 are illegal or not binding on the said defendants. He has, however, contended that in
the facts and circumstances of the case no decree should have been passed by the learned Judge against the present appellants viz., the defendants
Nos. 3 to 14, Mr. Dutt has contended that in the prayer made by the plaintiff in the plaint, no decree for eviction has been prayed for against the
defendants Nos. 3 to 14. He has contended although the plaint was subsequently amended by incorporating para 8A in the plaint, the plaintiff did
not amend the prayer in the plaint seeking for a decree of eviction against defendants Nos. 3 to 14. Mr. Dutt has contended that in the aforesaid
circumstances, the defendants Nos. 3 to 14 did not intend to oppose the prayer for eviction of the defendants Nos. 1 and 2 and hence the said
defendants Nos. 3 to 14 chose not to give any evidence in the suit. Mr. Dutt has submitted that it is an admitted case of the parties that the plaintiff
had realised rents from 7 sub-tenants who are some of the defendants in the instant suit and the plaintiff has granted receipts for such realisation of
rent from the said sub-tenants. He has contended that by such acceptance of rent, the plaintiff has not only approved the continuance of the said
sub-tenants in the demised premises but the plaintiff has also accepted them as direct tenants under the plaintiff. Mr. Dutt has contended that if a
landlord recognises the sub-tenants and accepts rents from sub-tenants directly, then by such payment and acceptance of the rent between the
parties a relationship of landlord and tenant comes into operation and since the landlord has accepted the said defendants Nos. 3 to 14 as direct
tenants and has not also prayed for a decree of eviction against them, the learned Judge was wrong in passing a decree for eviction against
defendants Nos. 3 to 14 along with the defendants Nos. 1 and 2. Mr. Dutt has submitted that the defendants Nos. 3 to 14 viz. the appellants in the
instant appeal have no objection against the decree for eviction passed against defendants Nos. 1 and 2 but the decree passed against defendants
Nos. 3 to 14 should be set aside. He submits that the decree for eviction should be confined only against the defendant Nos. 1 and 2. Mr. Roy
Chowdhury, the learned Counsel appearing for the plaintiff respondent No. 1 has, however, contended that in the written statement filed on behalf
of the defendants Nos. 3 to 14 it has been specifically contended that the said defendants Nos. 3 to 14 are tenants under the said lessees viz. the
heirs of Haji Ansarullah and the said defendants have been paying rents to their landlords viz. the said lessees. In view of such positive statement
made in the written statement, Mr. Roy Chowdhury has contended that it is not permissible for the defendants Nos. 3 to 14 to contend that they
have become direct tenants under the plaintiff by payment of rent and as such no decree for eviction can be passed against the said defendants and
the decree for eviction should be modified by confining the decree for eviction only against defendants Nos. 1 and 2. Mr. Roy Chowdhury has also
contended that although the defendant No. 1 has contended in her written statement that the plaintiff has trespassed into the demised premises and
has collected rents from her tenants directly, the said fact has not been established by the said defendants. Mr. Roy Chowdhury has contended that
the plaintiff and her daughter have deposed categorically that it was only at the instance of the defendants Nos. 1 and 2, the plaintiff had realised
rents from some of the sub-tenants for few months and in no case, the amount realised from such sub-tenants exceeded the amount payable for
any particular month by the said lessees to the plaintiff under the said indenture of lease. Mr, Roy Chowdhury has further contended that the
defendants Nos. 3 to 14 declined to give any evidence in the suit and in view of specific statement made in their written statement that they are the
tenants under the lessee and had been paying rents to the said lessee, the case of the plaintiff should be accepted and the evidence led on behalf of
the plaintiff should also be accepted. Mr. Roy Chowdhury has also contended that in the plaint, specific pleading has been made that the
defendants Nos. 3 to 14 are sub-tenants and they are in occupation of the demised premises under the lessee and the plaintiff is entitled to get a
decree for eviction against all the defendants including the said sub-tenants because of the determination of lease by efflux of time. Mr. Roy
Chowdhury has contended that in view of such specific pleadings and incorporation of para 8A by way of amendment of plaint, the plaintiff is
entitled to get a decree for eviction against all the defendants. He has also submitted that Issue No. 3 has been specifically framed by the learned
Judge for deciding as to whether or not the plaintiff is entitled to get a decree for eviction of the defendants including defendants Nos. 3 to 14.
Mr. Roy Chowdhury has submitted that simply because in the prayer of the plaint specific prayer has not been made for passing a decree for
eviction against the defendants Nos. 3 to 14, it cannot be contended that the Court cannot pass such decree for eviction against the defendants
Nos. 3 to 14. In this connection, Mr. Roy Chowdhury has referred to the provisions of Order 7 Rule 1 and Order 7 Rule 7 of the Civil P. C. Mr.
Roy Chowdhury has contended that the particulars required to be pleaded in the plaint under Rule 1 of Order 7 have been pleaded in the instant
plaint and on the face of such pleading, the Court is quite entitled to pass a decree for eviction against all the defendants. Referring to Rule 7 of
Order 7, Mr. Roy Chowdhury has contended that it shall not be necessary to ask for general or other relief which may always be given as the
Court may think just to the same extent as if it had been asked for. Mr. Roy Chowdhury has submitted that it has been specifically pleaded in the
plaint that the defendants being sub-tenants in the premises in question have been impleaded in order to avoid any multiplicity of proceedings in
future. The plaintiff has also categorically stated that the plaintiff is entitled to get recovery of possession of the demised premises from the said
defendants. In the aforesaid circumstances, the learned Judge is quite justified in passing a decree for eviction against all the defendants and no
exception can be taken by the present appellants against such decree for eviction simply on the score that the plaintiff has not incorporated any
specific prayer for eviction against the defendants Nos. 3 to 14 in the plaint. Mr. Roy Chowdhury has also contended that by the said sub-lease in
favour of defendants Nos. 3 to 14 there has been an assignment of the demised premises by the lessee in favour of the said sub-lessees although
there is no privity of contract between the lessor and the said sub-lessees. In such circumstances the said sub-lessees had a liability to pay rent to
the landlord for the demised premises at least to the extent in their occupation,
4. In this connection, Mr. Roy Chowhdury has referred to a Bench decision of this Court made in the case of Dwijendra Nath Mukherjee Vs.
Promode Kishore Mondal and Others, . It has been held in the said decision that in a covenant of lease running with the land, there is a privity of
estate between the assignee of the lessee and the lessor and such assignee is liable for rent so long as the right exists. Relying on the said decision,
Mr. Roy Chowdhury has contended that in the indenture of lease, there is a covenant running with the land and as such, the tenants of the lessee
namely the sub-tenants being the assignees of the lessee will be bound by the privity of estate between the lessor and the said sub-tenants to pay
rent. Accordingly, the landlord was quite justified in realising rents from them.
5. Mr. Roy Chowhdury has also referred to another Bench Decision of this Court made in the case of Sailendra Nath Bhattachrjee Vs. Bijan Lal
Chakravarty and Others, . It has been held in the said decision that a sub-lessee would be bound by a decree for possession obtained by the
lessor against the lessee, whether the sublease was created before or after the suit, if the eviction is based on a ground which determines sub-lease
also, unless the decree is obtained by fraud or the same is collusively suffered. When the sub-lessee is so bound, he can be ousted in execution of
the decree obtained against his lessor under Order 21. Rule 35 C.P.C., although a sub-lessee was not a party to the suit itself. The fact that the
lessee granted a permanent right to sub-lessee would not avail the latter if in a judgment properly obtained, it is held that a superior interest is not
permanent and has been properly determined. But a decree for possession obtained on a ground which by itself does not annul the sub-lease is not
binding on the sublessee. Relying on the said decision Mr. Roy Chowdhury has contended that even if the said defendants Nos. 3 to 14 would not
have been impleaded, they would have been bound by the decree for eviction passed against their lessors namely the defendant No. 1, the lessee
under the plaintiff. Mr. Roy Chowdhury has also contended that in the instant case the decree for eviction has neither been obtained by collusion
nor on any ground which by itself does not annul the lease. It is the specific case of the plaintiff that the lease stands determined by efflux of time
and as such, the sub-lessees are bound to suffer the decree of eviction along with the lessor. He has, therefore, submitted that the appeal has no
merit whatsoever and should be dismissed.
6. In reply to the aforesaid contention of Mr. Roy Chowdhury, Mr. Dutt appearing for the respondents, has submitted that a sublease in India does
not stand on the same footing as an assignment. Mr. Dutt has contended that until the entire interest of the lessee is transferred in favour of a sub-
lessee, there cannot be any occasion for assignment of interest, Mr. Dutt has contended that so far as the sub-lease is concerned, there is neither
privity of contract nor privity of estate between the head-lessor and the under-lessee. In this connection he has referred to a Bench decision of this
Court made in the case of Akhoy Kumar Chatterjee Vs. Akman Molla and Others . It has been held in the said decision that law is well settled
that there is neither privity of contract nor privity of estate between the head-lessor and under-lessees and hence the under-lessees are not
personally liable to pay rent reserved in the covenant between the head-lessor and the lessee. Mr. Dutt has also referred to a decision of the Privy
Council made in the case of AIR 1930 59 (Privy Council) . The Privy Council after taking into consideration the provision of Sections 105 and
108(j) of the Transfer of Property Act, has come to the finding that under Transfer of Property Act, having regard to Sections 105 and 108(j), an
underlease for the entire residue of the under-lessor''s term operates, in the absence of a contract to the contrary, as an underlease, and does not,
as ordinarily under English law, constitute an assignment of the lease. Mr. Dutt has contended that in view of the said decision, the plaintiff cannot
contend that the plaintiff can lawfully realise rent from the subtenants directly without changing the status of sub-tenants. Mr. Dutt has contended
that unfortunately, this aspect has not been taken into consideration by the trial Court and simply because the lease was determined by efflux of
time, the trial Court has passed the decree for eviction against all the defendants ignoring the fact that the defendants Nos. 3 to 14 have been
recognised as direct tenants under the plaintiff and as such no decree for eviction could be passed against them.
7. After considering the respective submissions made by the learned Counsel for the parties it appears to us that although the plaintiff has not
specifically prayed in the plaint for a decree for eviction against defendants Nos. 3 to 14 there is specific pleading that the lease against the
defendants Nos. 1 and 2 stands determined by efflux of time and the plaintiff is therefore entitled to recover possession from the defendants. In our
view, Mr. Roy Chowdhury is justified in his contention that there is no impediment in passing the decree for eviction against the defendants Nos. 3
to 14 even in the absence of any specific prayer for eviction against the said defendants Nos. 3 to 14 in the plaint when the requisite pleadings for
such decree for eviction against the said defendants have been made in the plaint. It however appears to us that the defendants Nos. 3 to 14 being
the sub-tenants, cannot be held to be the assignees of the lessees namely the defendants Nos. 1 and 2 under the said indenture of lease between
Ranjit Kumar Basu and Hazi Ansarullah. Mr. Dutt, in our view, is right in his contention that there is no privity of contract or privity of estate
between a subtenant and the head lessor by which there is any obligation of a sub-tenant to pay rent to the head lessor. But in the facts and
circumstances of the case, we are of the opinion that the plaintiff had realised rents from seven sub-tenants for a few months between April, 1964
to June, 1964 not by treating the said subtenants as per direct tenants but such realisation of rent from them was made at the instance of her lessees
namely the defendants Nos. 1 and 2 to liquidate the arrears of rent payable by such lessees to the plaintiff. The defendants Nos. 3 to 14 in their
written statement have specifically stated that they are the tenants under the said lessees and they are paying rents all along to their landlords against
receipts. The said defendants have also declined to lead any evidence in the suit. In our view, Mr. Dutt is not right in his contention that in view of
the pleadings of the parties and the issues framed by the learned Judge there was no occasion for the defendants Nos. 3 to 14 to depose. There is
a specific pleading that the plaintiff is entitled to recover possession of the demised premises from all the defendants including defendants Nos. 3 to
14 and a specific issue has also been framed to that effect. If the defendants Nos. 3 to 14 had really intended to oppose the said prayer, it was
their duty to lead positive evidence in support of their case of direct tenancy. It appears to us that as the said defendants have specifically admitted
that they are the tenants under the lessees of the plaintiff, there was no occasion for them to give any evidence contrary to such specific pleading
made by them. Needless to say, that even if they had led any evidence contrary to their written statement, such evidence should not have been
accepted. The depositions of the plaintiff and her daughter are in conformity with the written statement filed by the defendants Nos. 3 to 14 and we
are inclined to accept the case of the plaintiff that the plaintiff had never intended to accept the said defendants Nos. 3 to 14 as her direct tenants
and rents for few months from some of such sub-tenants had been realised at the instance of the defendants Nos. 1 and 2 liquidate the arrears of
rent payable by such lessees to the plaintiff. By such realisation of rents, the plaintiff had not accepted the sub-tenants as her direct tenants and the
said sub-tenants also did not pay rent for the purpose of creating a relationship of landlord and tenant between the plaintiff and the said sub-tenants
and the written statement filed on behalf of the defendants Nos. 3 to 14 clearly supports the case of the plaintiff in this regard.
8. In the aforesaid circumstances, we do not find any reason to interfere with the decree passed in the instant suit. This appeal, therefore, fails and
is dismissed.
9. There will be no order as to costs.
Sankari Prasad Das Ghosh, J.
10. I agree.