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TMI Blog2005 (4) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... luding sheds on 'B' Schedule property, a part of 'A' Schedule property and set up an iron casting foundry under the name and style of D.L. Singha and Company, which was run by him till his death. After his death on 31st May, 1954, his legal heirs, original respondent nos. 1 and 2 settled the whole karbar (business) of iron casting foundry along with land and all fittings and fixtures in favour of one Kalipada Mondal and Bahar Bala Dassi on 27th July, 1954, for a period of five years starting with the month of Baisakha 1361 B.S. Bangabda Samvat (for short B.S. ) (Bangla year) to Chaitra 1365 B.S. at a monthly rent of ₹ 466/3 annas. By successive transfers, interest of original lessees/settlees came to be acquired by the appellant on 18th January, 1956 (A.D.). Settlement in favour of the appellant came to an end by efflux of time in Chaitra 1365 B.S., equivalent to, 13th April, 1959. Appellant failed to vacate the 'B' Schedule property as well as to pay the rent after 1363 B.S. Original plaintiff nos. 1 and 2 instituted suit no. 11/1959 against the appellant but the same was withdrawn due to some formal defects with liberty to file a fresh suit. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had raised construction on 'C' Schedule property illegally without taking permission from the landlord. With respect to 'B' Schedule property the judgment and decree passed by the Trial Court was set aside. It was held that since the Trial Court had found tenancy to be a premises tenancy, it must be governed by the provisions of the West Bengal Premises Tenancy Act, 1956 and, therefore, neither expiry of the period of settlement nor the assignment of the interest created thereunder in favour of the appellant can be a ground for eviction of the appellant. That tenancy of 'B' Schedule property could not be determined without issuing notice under Section 106 of the Transfer of Property Act. That the settlement dated 27th July, 1954 was made by the respondents in their character as a partnership firm and therefore suit for eviction filed by them in their individual capacity was not maintainable. Feeling aggrieved by the findings of the Appellate Court with respect to the trespasser over 'C' Schedule property, appellant preferred Second Appeal no. 646/1977 and being aggrieved by the setting aside of the decree with respect to 'B' Schedule pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the appellant had trespassed upon the same is a finding of fact based on evidence and, therefore, does not call for interference. Finding recorded by the High Court with regard to the requirement of issuance of notice under Section 106 of the Transfer of Property Act and the maintainability of the suit by the respondents in their individual capacity after the dissolution of the partnership firm has not been challenged before us. These two findings are also affirmed. With regard to 'B' Schedule property the High Court set aside the finding of the First Appellate Court on two counts. Firstly, that the appellant had committed a default in payment of the rent after 1363 B.S. and secondly, on the ground that what was let out to the appellant was not the premises within the meaning of Section 2 (f) of the Act but the business housed in a building along with machinery which was not covered under the provision of the Act. Learned counsel for the appellant is right in submitting that the High Court has erred in holding that the appellant had committed a default in payment of the rent. Plaintiff-respondents in their plaint did not take the plea that the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased building incidentally passes the fixtures of the machinery in regard to the Mill; in truth, it is the Mill which is the subject matter of the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill. It was further observed in the same paragraph:- The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies. Following the aforesaid judgment in Dwarka Prasad vs. Dwarka Das Saraf, AIR 1975 SC 1758 this Court held that where a cinema theatre equipped with projector and other fittings is let out it would not be a lease of 'accommodation' as defined in Section 2 (1) (d) of the U.P. (Temporary) Control of Rent and Eviction Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement the fittings and fixtures of the said karbar (business) which the second party is now receiving from the first party (the second party) shall return the same on the expiry of the period of agreement. If there be any loss or damage to the same the same shall be made good by the second party. Clause (v) provides that if necessary, second party can bring in new fixtures and appliances with prior notice to the settlers and on the expiry of the agreement the second party shall be entitled to remove the fixtures and appliances brought by them. Clause (vi) provides that settlers will be entitled to carry on the business in their own firm's name but they shall have to bear all the expenses for electricity and telephone. Clause (vii) provides that after the expiry of first term if the second party desires to carry on the said karkhana (business) the first party shall enter into a separate agreement for a stipulated period. Clause (ix) expressly excludes the tank and its three banks from the settlement so made. The High Court after referring to the above quoted terms of the settlement came to the conclusion that the dominant intention of the parties who entered into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the premises to run a business it was to the contrary. In Natraj Studios (P) Ltd. v. Navrang Studios and another, AIR 1981 SC 537 though this Court took the same view but keeping in view the peculiar provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, it was held the principle laid down in the earlier two judgements would not be applicable to the case. Referring to the amended provisions of the said Act it was held that the tenancy created was of the premises within the meaning of Section 5 (8) and 5 (8A) to which Part 11 of the Act has been made applicable by Section 6 (1) notwithstanding the fact that the building was not let out as such. We do not agree with the learned counsel for the appellant that this Court in Natraj Studios (P) Ltd. (supra) had revised its earlier view. The provisions of West Bengal Premises Tenancy Act, 1956 are altogether different from the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The West Bengal Premises Tenancy Act, 1956 can have application only if what is settled by way of lease is a premises and in order to decide whether the settlement is such or not, we are governed by the we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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