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PETITIONER: SWADESH RANJAN SINHA

       Vs.

RESPONDENT: HARADEB BANERJEE

DATE OF JUDGMENT03/10/1991

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SAHAI, R.M. (J)

CITATION:  1992 AIR 1590            1991 SCR  Supl. (1) 245  1991 SCC  (4) 572        JT 1991 (4)    67  1991 SCALE  (2)802

ACT: West Bengal Premises Tenancy Act, 1956:     Sections  2  and 13(1)(ff)-Eviction  of  tenant-Premises allotted  by  sub-lease rented  out-Whether  allottee  owner entitled to evict the tenant ownership - Meaning of.

HEADNOTE:     The  appellant-plaintiff rented out to  the  respondent- defendant  the suit premises allotted to him, by  sub-lease, by  a  Housing Co-operative Society, which itself  held  the flat  under  a 99 years lease granted  by  the  Metropolitan Development Authority. Sometime later he issued a notice  of termination of the tenancy to the respondent and called upon him  to  vacate the premises within a  stipulated  time.  On respondent’s failure to vacate the premises, he/instituted a suit on grounds of default of payment of rent and reasonable requirement  for  occupation under Sections  13(1)  (i)  and 13(1)(ff) respectively. The trial court decreed the suit  on the  ground  of  reasonable requirement but  held  that  the respondent tenant was not in arrears of rent.     On  appeal by the respondent, the first appellate  court did  not  examine  the merits of the  appellant’s  claim  of reasonable  requirement, but examined  the  appellant-plain- tiff’s  title, though the respondent had not questioned  the same  and held that, since the appellant was only  a  lessee under a 99 years lease granted by the Society, which  itself was a lessee holding a 99 years lease from the  Metropolitan Development  Authority,  he was not an  ’owner’  within  the meaning of Section 13(I)(II) of the Act and was,  therefore, not entitled to seek eviction under that provision. The High Court  also did not examine the appellant’s claim for  evic- tion and affirmed the first appellate Court’s finding on the question of title. Hence the appeal by the  appellant-plain- tiff.     On the question: whether the appellant was the owner  of the suit premises for the purpose of instituting a suit  for eviction  in terms of the West Bengal Premises Tenancy  Act, 1956. 246 Allowing the appeal, this Court,     HELD:  1.1  Ownership  denotes the  relation  between  a

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person  and  an  object forming the  subject-matter  of  his ownership. It consists in a complex of rights, all of  which are right’s in rem, being good against all the world and not merely against specific persons. [249 G] Salmond  on Jurisprudence, 12th ed. Ch. 8, p. 246  et.  seq. referred to.     1.2  There are various rights or incidents of  ownership all of which need not necessarily be present in every  case. They may include a right to possess, use and enjoy the thing owned;  and  a right may be indeterminate  in  duration  and residuary in character. A person has a right to possess  the thing which he owns, even when he is not in possession,  but only  retains  a  reversionary interest, i.e.,  a  right  to repossess  the thing on the termination of a certain  period or on the happening of a certain event. [249 G-H; 250 A]     1.3 All that a plaintiff needs to prove is that he has a better  title than the defendant. He has no burden  to  show that  he has the best of all possible titles. His  ownership is  good  against all the world except the true  owner.  The rights  of  an owner are seldom absolute, and often  are  in many  respects  controlled  and regulated  by  statute.  The question,  however,  is whether he has a superior  right  or interest vis-a-vis the person challenging it. [250 B]     1.4  In the instant case, the appellant-plaintiff is  an allottee in terms of the West Bengal Co-operative  Societies Act,  1983.  He has a right to possess the  premises  for  a period of 99 years as a heritable and transferable property. During  that period he has a right to let out  the  premises and enjoy the rental income therefrom, subject to the statu- tory  terms and conditions of allotment. The certificate  of allotment is the conclusive evidence of his title or  inter- est.  No doubt he has to obtain the written consent  of  the Society before letting out the premises. But once let out in accordance  with  the terms of allotment  specified  in  the statute, he is entitled to enjoy the income from the proper- ty. Although he is a lessee in relation to the society,  and his rights and interests are subject to the terms and condi- tions of allotment, he is the owner of the property having a superior  right in relation to the defendant. As far as  the respondent  is concerned, the appeliant is his landlord  and the owner of the premises for all purposes dealt with  under the provisions of the Act. [250 C-E]     1.5 Hence. the High Court and the first appellate  court were  wrong in setting aside the decree of the  trial  court solely on the question of 247 appellant’s title, which was never an issue at any stage  of the  trial.  There was no plea to that effect and  no  issue was,  therefore,  framed  on the question.  This  being  the position,  the  appellant’s claim has to be decided  on  the basis  of  the pleadings, i.e. on the basis that he  is  the owner  of the premises in question. Accordingly,  the  Judg- ments  of the High Court and first appellate court  are  set aside  and the matter remanded to the first appellate  court for fresh disposal of respondent-tenant’s appeal on  merits. [250 E-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4075 of 1991.     From  the  Judgment  and Order dated  3.12.1990  of  the Calcutta High Court in Second Appeal No. 1063 of 1982.     D.N. Mukherjee, N.R. Choudhary and Ranjan Mukherjee  for the Appellant.

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   Manoj  Swarup, Ms. Lalita Kohli, Ms. Sarla  Chandra  and S.K. Mitra for the Respondent. The Judgment of the Court was delivered by THOMMEN, J. Leave granted.     This  appeal  by the plaintiff in a  suit  for  eviction arises from the judgment of the Calcutta High Court dismiss- ing  his  appeal against the judgment of the  1st  appellate court allowing the defendant’s appeal against the decree  of the  trial court. The trial court found that  the  plaintiff was entitled to evict the tenant on the ground of reasonable requirement  specified under Section 13(1)(ff) of  the  West Bengal  Premises  Tenancy Act, 1956 (the  "Act").  Reversing that  finding, the 1st appellate court held that the  plain- tiff  was not the owner of the premises and was,  therefore, not entitled to seek eviction. This finding was affirmed  by the High Court by the judgment under appeal.     The only question which arises in the present appeal  is whether or not the plaintiff is the owner of the suit  prem- ises  for the purpose of instituting a suit for eviction  in terms  of the Act. The dispute concerns a flat  allotted  to the plaintiff by the Kadamtola Housing Co-operative Society, Calcutta (the "Society"). This was one of the 16 flats  held by the Society under a 99 years lease granted by the Calcut- ta  Metropolitan  Development Authority under  a  registered document.  The Society in turn allotted these flats  to  its members, among whom the appellant is one, by a sub-lease for a  term  of 99 years. The appellant, being an  allottee,  is thus  a  sub-lessee under the Society with a  heritable  and transferable title. The 248 appellant subsequently inducted the respondent into the flat on  a rent of Rs. 110 per month. On 29.10.1976, a notice  of termination  of the tenancy was issued by the  appellant  to the  respondent calling upon him to vacate the premises  not later  than  December, 1976. Since the  respondent  did  not vacate the premises, title suit No. 165/77 was instituted by the appellant on the ground of default of payment of rent as specified under Section 13(1)(i) of the Act and also on  the ground of reasonable requirement for occupation as  provided under  Section  13(1)(ff). The trial court  found  that  the premises were reasonably required by the appellant, and  the suit  was accordingly decreed on the ground mentioned  under Section 13(1)(ff). It was, however, held that the tenant was not in arrears of rent.     It is important to note that the defendant in his  writ- ten  statement  did not question the  plaintiff’s  title  or claim  of ownership. No issue regarding ownership  had  been framed  as it was never questioned by the defendant  at  any stage  of the proceedings in the trial court. On  appeal  by the  defendant, the 1st appellate court examined the  plain- tiffs title and held that, since he was only a lessee  under a 99 years lease granted by the Society, which itself was  a lessee holding a 99 years lease from the Metropolitan Devel- opment  Authority, he was not an ’owner’ within the  meaning of  Section  13(1)(ff) of the Act and  was,  therefore,  not entitled to seek eviction under that provision. Accordingly, the merits of the plaintiffs claim were not examined by  the 1st  appellate court. This finding was affirmed by the  High Court,  and, like the 1st appellate court, it also  did  not consider the merits of the plaintiffs case for eviction.     Section 13 protects a tenant from eviction except on one or  more of the grounds specified thereunder. That  Section, in so far as it is material, reads:               "S.(13)(1)--Notwithstanding  anything  to  the               contrary in any other law, no order or  decree

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             for the recovery of possession of any premises               shall  be made by any Court in favour  of  the               landlord  against  a tenant except on  one  or               more of the following grounds, namely:--               (fl’) Subject to the provisions of sub-section               (3A),  where the premises are  reasonably  re-               quired by the landlord for his own  occupation               if  he is the owner or for the  occupation  of               any person for whose benefit the premises  are               held and the landlord or such person is not in               possession of any reasonably suitable accommo-               dation. 249     On the facts of this case, the provision of  sub-section 3(A)  of  this  Section are not attracted.  Clause  (ff)  is attracted  as a ground for eviction if the landlord is in  a position to prove that the premises are required by him  for his  own occupation, if he is the owner of the premises,  or for  the  occupation  of any person for  whose  benefit  the premises are held, and the landlord or such other person, as the  case  may be, is not in possession  of  any  reasonably suitable accommodation.     The ’landlord’ is defined by Section 2 in wide terms  so as  to include any person who, for the time being, is  enti- tled  to  receive or but for a special  contract,  would  be entitled to receive the rent of any premises, whether or not on his own account:’ This definition shows that even if  the rent  is received by a person not on his own account but  on account  of any other person, such as his principal  or  his ward, he is for the purpose of the Act a landlord. Any  such person  is,  therefore,  entitled to institute  a  suit  for eviction.  But to attract clause (fl’), the  requirement  of the landlord must be either for his own occupation, if he is the  owner, or, for the occupation of any person  for  whose benefit  the premises are held. This clause is,  of  course, available only when no reasonably suitable accommodation  is available to the person for whose occupation the eviction is sought.     It  is  submitted on behalf of the respondent  that  the appellant,  although  a  ’landlord’ within  the  meaning  of Section 2, is not an owner so as to be able to seek eviction on the ground specified under clause (ff) of sub-section (1) of Section 13. The contention is that the appellant is  only a  lessee, and that too in terms of a sub-lease of 99  years granted by a Society which is itself holding a lease for the same  period. Such a lessee is not an owner, for his  rights are  not  absolute. He cannot claim to be an owner  for  the purpose of seeking eviction by recourse to the provisions of an  Act which is intended to protect the tenant and  prevent eviction  except on specified grounds. The expression  owner should  be  so strictly construed as to exclude  any  person having less than full ownership right.     Ownership  denotes the relation between a person and  an object  forming  the  subject-matter of  his  ownership.  It consists in a complex of rights, all of which are rights  in rem, being good against all the world and not merely against specific persons’. (Salmond on Jurisprudence, 12th ed.,  Ch. 8,  p. 246 et. seq.). There are various rights or  incidents of ownership all of which need not necessarily be present in every  case.  They may include a right to possess,  use  and enjoy  the thing owned; and a right to consume,  destroy  or alienate  it. Such a right may be indeterminate in  duration and residuary in character. A person has a right to  possess the thing which he owns, even when he is not in  possession, but only retains a rever-

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250 sionary  interest, i.e., a right to repossess the  thing  on the termination of a certain period or on the happening of a certain event.     All  that  a plaintiff needs to prove is that he  has  a better  title than the defendant. He has no burden  to  show that  he has the best of all possible titles. His  ownership is  good  against all the world except the true  owner.  The rights  of  an owner are seldom absolute, and often  are  in many  respects  controlled  and regulated  by  statute.  The question,  however,  is whether he has a superior  right  or interest vis-a-vis the person challenging it.     The plaintiff is an allottee in terms of the West Bengal Co-operative Societies Act, 1983: (See Sections 87 and  89). He  has a right to possess the premises for a period  of  99 years as a heritable and transferable property. During  that period he has a right to let out the premises and enjoy  the rental income therefrom, subject to the statutory terms  and conditions of allotment. The certificate of allotment is the conclusive  evidence  of his title or interest. It  is  true that  he  has to obtain the written consent of  the  Society before letting out the premises. But once let out in accord- ance  with the terms of allotment specified in the  statute, he  is entitled to enjoy the income from the  property.  Al- though  he is a lessee in relation to the Society,  and  his rights and interests are subject to the terms and conditions of  allotment,  he  is the owner of the  property  having  a superior  right in relation to the defendant. As far as  the defendant  is concerned, the plaintiff is his  landlord  and the owner of the premises for all purposes dealt with  under the provisions of the Act.     In view of what we have stated above, the High Court and the  1st  appellate court were wrong in  setting  aside  the decree  of  the trial court solely on the  question  of  the appellant’s title. The appellant’s title was never an  issue at any stage of the trial. There was no plea to that  effect and  no issue was, therefore, framed on the  question.  This being the position, the appellant’s claim has to be  decided on the basis of the pleadings, i.e., on the basis that he is the owner of the premises in question.     Accordingly, we set aside the judgment of the High Court and that of the 1st appellate court and remand this case  to the  1st appellate court for fresh disposal of the  respond- ent-tenant’s appeal on the merits.     This  appeal  is accordingly allowed with costs  of  the appellant throughout. N.P.V                                                 Appeal allowed. 251