IN THE SUPREME COURT OF INDIA

      CIVIL APPELLATE JURISDICTION  

(CIVIL APPEAL NOS.12025­12026 of 2018) ARISING OUT OF

Petitions for Special Leave to Appeal (Civil) Nos. 33765­ 33766/2017)

Bijay Kumar Manish Kumar HUF                  Appellant

VERSUS

Ashwin Desai               Respondent

WITH

Civil Appeal Nos.12029­12030 of 2018 (@Special Leave Petition (C) Nos.32909­32910 of 2018)

(@Diary No(s). 35069/2017)

Civil Appeal Nos. 12031­12032 of 2018  (@Special Leave Petition (C) Nos. 32911­32912 of 2018 )

(@Diary No(s). 35255/2017)

Civil Appeal Nos. 12027­12028 of 2018  (@SLP(C) Nos. 33767­33768/2017))

JUDGMENT

N.V.RAMANA, J.

REPORTABLE

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1. Delay condoned.

2. Leave granted.

3. Heard Mr. Jaideep Gupta, learned Senior counsel appearing for

the appellant and Mr. Siddharth Bhatnagar, learned counsel

appearing for the respondent.

4. These four appeals are filed against the orders dated

15/17.11.2016 and 20.7.2017 passed by the Calcutta High Court.

The appellant before us is landlord ofa building which is the subject

matter of lease. This  building  was leased  bythe erstwhile owner,

NanjeeShamjee& Comp.(lessor) to the respondent (lessee) for a

period of  99 years at  Rs.350/­ per  month  via  a Registered Lease

Deed on 20.11.1992. Later, on 30.8.1996 the appellant purchased

the entire premises of the disputed property from the erstwhile

owner  via  a Registered  Deed of Conveyance. Thus,the appellant

stepped into the shoes of the said lessor.

5. On account of default in payment of lease money, a suit,  viz.,

Title Suit No.2450 of 2007 was instituted by the appellant before the

XI City Civil Court, Kolkata for recovery of  khas possession, mesne

profits, permanent injunction and other reliefs. The respondent had

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filed an Order VII,  Rule 11 CPC application for rejection of plaint

which was dismissed by the trail court on 03.02.2015 and again by

High Court in revision on 31.03.2015. A second application under

Order VII, Rule 11 CPC was filed by the respondent claiming that

plaint ought to be rejected for non­issuance of statutory notice under

Section 6(4) of West Bengal Tenancy Act, 1997.  This was dismissed

by the trial court on 18.08.2016.  However, the revision petition

against this was allowed by the High Court on 15.11.2016 and it is

against this that the present appeal is filed.  

6. The contention raised by the appellant is that they are governed

by the provisions of Transfer of Property Act, 1882 because the lease

was executed in 1992 when the West Bengal Tenancy Act, 1997 was

not in force and the same cannot have retrospective effect. On the

other  hand, the  respondent  contended  that the  suit  was  filed  on

06.09.2007 when the West Bengal Tenancy Act, 1997 was in force.

7. Thus, the  question  involved  in  these appeals is  whether the

West Bengal Tenancy Act, 1997 or the Transfer of Property Act, 1882

applies.  

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8. This dispute can be resolved by framing an issue by the trial

court on the said point and by adjudicating the same as a

preliminary issue.

9. Taking into consideration the peculiar facts and circumstances

of the case, since the suit is still in the preliminary stage, we dispose

of the appeals directing the trial court to frame the issue, relating to

maintainability of suit and applicability of enactments, as mentioned

supra, and decide the same in accordance with law as a preliminary

issue as expeditiously as possible, preferably within a period of six

months from the date of communication of this judgment.

.......................J (N.V. RAMANA)

........................J (MOHAN M. SHANTANAGOUDAR)

NEW DELHI;  DECEMBER 12, 2018.

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