Aloke Kr. Sirkar vs Ganapati Venkeeta Krishnan

Arun Kumar Mitra, J.—Challenging the Order No. 85 dated January 4, 2002 in an Ejectment Suit No. 187/ 1999 passed by the learned Judge, lllrd Court, Presidency Small Causes Court at Calcutta, this Revisional Application has been moved. The Plaintiff/opposite party No. 1 filed the Ejectment suit against the Petitioner and the opposite party No. 2.

The Petitioner filed an application in the said Suit u/s 17(2) of the West Bengal Premises Tenancy Act, 1956 within the time stipulated. In the said application, the Petitioner disputed landlord-tenancy relation with the opposite party No. 1, who is the Plaintiff, in the said application the Petitioner also stated that he is a thika Tenant in respect of a portion of land being Premises No. 26C, Nirmal Chandra Street. The said application u/s 17(2) of the West Bengal Premises Tenancy Act, 1956 has been made Annex. A to the petition.

On the said application the learned judge passed an order being Order No. 29 dated April 6, 1993 which is quoted hereinbelow.

Parties file Haziras. The application u/s 17(2) of the West Bengal Premises Tenancy Act is taken up for hearing. Heard the learned lawyers of both the sides.

The point raised in this petition viz. whether Defendant is a thika tenant or not will be decided with other issues at the trial. The Defendant to deposit rent in court. The applications u/s 17(2) of the Act be disposed of accordingly.

Challenging the Order No. 2.9 dated April 6, 1993 quoted above, the Petitioner moved a revisional application being CO. No. 1836 of 1993. Said revisional application was disposed of by Hon''ble Justice Bhaskar Bhattacharya. The gist of the Order of his Lordship passed in the revisional application on May 4, 1999 is quoted hereinbelow:

The present Petitioner filed an application u/s 17(2) of the West Bengal Premises Tenancy Act and thereby contending that he is a thika tenant. By the Order impugned, the learned judge has decided to hear the said application u/s 17(2) along with the main issue as to whether the Defendant is a thika tenant or not. I don''t find any illegality or material irregularity in the Order impugned justifying interference u/s 115 of the Code of Civil Procedure. Moreover, the Petitioner will not be prejudiced by the Order impugned. Thus, there is no merit in the application and the same is dismissed. The learned judge is directed to dispose of the suit which is pending for the last 10 years positively by December 1999.

After the said Order being passed by Hon''ble Justice Bhaskar Bhattacharya, the Plaintiff/opposite party No. 1 on July 28, 1999 filed an application u/s 17(3) of the West Bengal Premises Tenancy Act inter alia praying for striking out the defence of, the Defendant. The Petitioner herein did not comply with the Order No. 29, dated April 6, 1993 and accordingly the learned court fixed the petition filed by the Plaintiff u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 on August 30, 1999.

The said application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 came up for hearing on August 30, 1999 and the learned judge fixed up the hearing of the application u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 without deciding whether the Defendant is a thika tenant or not. Again being aggrieved by the said Order No. -42, dated August 30, 1999 passed by the learned Sixth judge, City Civil Court, Calcutta in Ejectment Suit No. 187 of 1999, the Petitioner filed a revisional application being CO. No. 2616 of 1999. The said application came up for hearing before Hon''ble Justice Bhaskar Bhattacharya on October 7, 1999. After hearing the learned Counsel for the parties, his Lordship on October 7,. 1999 by judgment and Order allowed the revisional application. His Lordship set aside the Order impugned and directed the learned trial Judge to dispose of the application u/s 17(2) of the West Bengal Premises Tenancy Act along with the main issue to the relationship of landlord-tenant between the parties positively within December 31, 1999. By that. Order his Lordship also disposed of the other application being C.A.N, No. 8322 of 1 999 filed by the tenant for clarification of earlier order passed by his Lordship.

In pursuance of the direction passed by his Lordship, the application u/s 17(2) of the West Bengal Premises Tenancy Act was taken up for hearing. By Order No. 85, dated January 4, 2002 (impugned order) the learned judge disposed of the application filed u/s 17(2) of the W.B.P.T. Act with the finding that the Defendants are not thika tenants in respect of the suit property but are tenants under the provision of W.B.P.T. Act and there exists relationship of landlord and tenant, between the parties to the suit. The learned judge also directed the tenant/Defendant to deposit the arrear rent with interest to the tune of Rs. 18,444 in 19 monthly instalments. The first 18 instalments will be of Rs. 1,000/- each. The balance amount will be paid in 19th instalment. The learned judge also directed that first of such instalments shall become payable by March 15, 20.02 and subsequent instalments by 15th of the succeeding months. The learned judge also directed that the Defendants will-also go paying rent for the current month from January 2002 onwards according to law.

Hence, this revisional application has been moved by the Defendant No. 2/Petitioner. The learned Counsel'' for the Petitioner Mr. Bagchi submitted that the Plaintiff is to prove that the Defendant is a premises tenant and not a thika tenant. The Plaintiff by any positive evidence would not prove that the Defendant is not a thika tenant and as such the impugned order should be set aside.

Mr. Bagchi, the learned Counsel for the Petitioner submitted that the learned judge discarded some documents since those documents were made during the pendency of the suit but the learned judge did not apply to same principle in the case of the Plaintiff.

The learned Counsel then submitted that there is no evidence regarding status of Asutosh Sarkar''s predecessor.

The learned Counsel then submitted that Exit. 9 submitted by the predecessor in interest of the present Plaintiff in a Probate Proceeding No. 139, Case No. 34 of 1963 cannot be discarded in this manner.

The learned Counsel submitted that the presumption of genuinity as provided in Section 80 of the Evidence Act was in favour of the Petitioner/Defendant but the learned court did not consider the same.

The learned Counsel placed a Citation in this regard and prior to consideration of the said Citation, Section 80 of the Evidence Act is quoted hereinbelow:

Section 80. Presumption as to documents produced as record of evidence.

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

The said citation is a judgment of the Hon''ble Apex Court reported in P.C. Purushothama Reddiar Vs. S. Perumal, .

The observations made in para. 18 of this judgment on which the learned Counsel for the'' Petitioner mainly relied upon is quoted hereinbelow:

Before leaving this case it is necessary to refer to, one of the contentions taken by Mr. Ramamurthi, learned Counsel for the Respondent. He contended that the Police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection, Hence it is not open to the Respondent now to object to their admissibility see Bhagat Ram v. Khetu Ram AIR 1929 P.C. 110.

The learned Counsel then submitted that the learned judge did not consider the Affidavit of Asset which is a part of Probate Proceeding as provided u/s 276 of the Indian Succession Act but the learned judge did not consider the contents of the said affidavit where it has been categorically stated that the Petitioner/Defendant is a thika tenant. The learned Counsel then submitted that in view of the provisions of Section 31 of the Evidence Act, such admissions may not be conclusive proof but they may operate as estoppels and there is evidenciary value of such admissions.

The learned Counsel relied on the observations made in para. 8 of the judgment reported in Framjee Cursetjee Heerjeebhoy Rustomjee Vs. Board of Revenue and Others, .

It appears to me that the practice followed so long, namely, that the valuation declared by an Appellant is checked and verified by the Probate Deputy Collector has worked well all these years. It is on the report of the Probate Deputy Collector that deficit court fees, if any, that is to say, when smaller amount was paid than was actually due, was recovered from the estate of the deceased and it is again on this report that refund was granted in appropriate cases where over-payment was made by an applicant. I do not see any reason why a departure should be made from this practice, parties cularly because no instance has been cited before me where the practice followed so far has found to be wanting in any respect whatsoever.

Mr. Gupta, however, submitted that u/s 19A of the Act, the Respondent No. 1 had a discretion in the matter and that the discretion should not be interfered with. It is not my intention by the observations made in this judgment, in any way to interfere with or curtail any discretion which the statute has given to the Respondent No. 1. I, therefore, direct that the Respondent No. 1 should accept the report of the Probate Deputy Collector, with regard to the valuation of the estate of-a deceased person, and act upon it. But the manner in which relief .is to be given to an applicant is a matter entirely within the discretion of the Respondent No. 1 and it would be for him to consider what relief would be granted to the applicant. That discretion vested in the Respondent No. 1 by. the statute cannot be taken away from him except by amendment of the statute itself.

In that view of the matter, this Rule is made absolute and the Respondent No. 1 is directed to act according to law in the light of the observations made in this judgment. Each party to pay its own costs.

The learned Counsel Mr. Bagchi then relied on the provisions of Section 31 of the Evidence Act and also on Section 32, Sub-section 3 of the said Act. Both the Sections i.e. 31 and 32(3) are quoted hereinbelow:

Section 31. Admissions not conclusive proof, but may estop. - Admissions are not conclusive proof the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.

Section 32(3) or against interest of maker: When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

The learned Counsel relied on a decision of the Hon''ble Supreme Court reported in Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, .

The learned Counsel relied on the observations made in para. 17 of this judgment which is quoted hereinbelow:

It was, however contended that once sub-contract Ext, A was admittedly signed and executed .by the Managing Director, of the Appellant company, subsequent attempt on behalf of the Appellant to repudiate a part of the contract would be of no avail and the court cannot given effect to it except if the novation suggested by the Appellant is unreservedly accepted and agreed to by the Respondent. In the facts of a given cause acceptance of a suggestion may be sub-silention reinforced by the subsequent conduct. True it is that the general rule is that an offer is not accepted by mere silence on the part of the offeree. There may, however, be further facts which taken together with the offeree''s silence constitute an acceptance. One such case is where a part of the offer was disputed at the negotiation stage and the original offeree communicated that the fact to the offerer showing that he understood the offer in a particular sense. This communication will probably amount to a counter-offer in which case it may be that mere silence of the original offerer will constitute his acceptance (see Halsbury''s Laws of England, 4th edn., Vol. 9, para. 251). Where there is a mistake as to terms of a document as in this case, amendment to the draft was suggested and a counter-offer was made, the signatory "to the original contract is not estopped by his signature from denying that he intended to make an offer in the terms set put in the document; to wit, the letter and the cable (Ibid, para. 295). It can, therefore, be stated that where the contract is in a number of parts it is essential to the validity of the contract that the contracting party should either have assented to or taken to have assented to the something in the same sense or as it is sometimes put, there should be consensus ad. idem. And from this it follows that a party may be taken to have assented if he has so conducted himself as to be estopped from denying that he has so assented (Ibid, para. 288). Even apart from this, it would still be open to the party contending novatio to prove that he had not accepted a part of the original agreement though it has signed the agreement containing that part. It would in this connection be advantageous to refer to R. v. Fulhan, Hammersmith and Kensington Rent Tribunal ex parte Zerek (1951) 1 All.E.R. 482 wherein an oral agreement Was entered into between the landlord and a tenant for lease of unfunished premises at a weekly rent of 35s, The landlord subsequently refused to grant the tenant possession unless he agreed to hire his furniture to the landlord for one year at a rental of 12 and to execute a document certifying, inter alia, that the letting was a furnished letting at a rent of 35s, a week. The tenant signed the document and entered into possession. Later the tenant applied to a rent tribunal to fix a reasonable rent for the premises as an unfurnished dwelling house under the Landlord and Tenant (Rent Control) Act, 1949. The tribunal accepted the tenant''s evidence that the premises were originally let unfurnished and came to the conclusion that the document signed by the tenant did not constitute a valid agreement and did not modify or replace the earlier oral agreement and that the premises were not bona fide let furnished. The tribunal reduced the rent to 1.5s. a week. On an application by the landlord for an order for certiorari, motion for certiorari was refused and in so doing the subsequent written agreement was ignored and the previous oral agreement was accepted as genuine and binding. It would therefore, be inappropriate to say that because the Appellant has signed the sub-contract, every part of it is accepted by him even though there is convincing evidence pointing to the contrary. It was, however, said that a subsequent negotiation or a repudiation of part of the contract cannot in any manner affect the concluded agreement. Reliance was placed on Davies v. Sweet (1962) 2 W.L.R. 525, the pertinent observation at p.,529 being as under:

If there was originally a concluded bargain between the parties, this could only be got rid of by either (a) a mutual agreement to call off the sale, or (b) an agreement for a variation of the terms of the original contract. The mere fact that there have been negotiations which prove to be abortive and do not result in an enforceable agreement does not destroy the original contract: see Perry v. Suffields Ltd. (1916) 2 Ch. 187(C.A.).

If on the evidence in this case it can be held that the sub-contract Ext. A was a concluded contract in respect of all clauses of it including the arbitration agreement, a subsequent repudiation of a part of it by a party to the contract cannot affect the concluded agreement. But as clearly pointed out hereinbefore an amendment was suggested to the draft of the intended contract and immediately after the signing ceremony, a letter pointing out that the part in respect of which amendment was sought and not carried out was not acceptable and it was followed by a cable it would indicate that the parties were not consensus ad idem with regard to a severable portion of contract and there was thus lack of mutuality on the question of arbitration agreement. Therefore, the conclusion is inescapable that there was no concluded arbitration between the parties. The High Court rejected the contention of the Appellant holding that when the Managing Director of the Appellant signed the contract at Belgrage on July 10, 1961 ; the sub-contract contained the arbitration agreement and his signature was only less than half an inch away from the arbitration clause and that he has not entered the witness box and offered himself for cross-examination and that the Respondent''s contention that the letter and the cable were not received appeared to be acceptable. The High Court totally overlooked and ignored the admission of receipt of letter and cable in para. 6 of the affidavit of llija Kostantinovic. The High Court attached importance to the denial of the receipt of the letter and the cable by Mr. Panich Stojan in his oral evidence and did not attach importance to his subsequent admission that Mr. Kos-tantinovie must have replied to the letter and the cable. Admission, unless explained, furnishes the best evidence. With respect, the High Court overlooked the material evidence, drew impermissible inference and came to the conclusion which on evidence we find utterly insustainable. A finding of fact recorded by the High Court overlooking the incontrovertible evidence which points to the contrary and, therefore, utterly unsus-tainable cannot come in the way of this Court reaching a correct conclusion on facts and the examination of the evidence by this Court cannot be impeded by a mere submission that this Court does not interfere with finding of fact.

The learned Counsel then cited one judgment of the Hon''ble Apex Court reported in Bhim Singh and Anr. v. Kan Singh and Anr. AIR 1960 S.C. 727

The learned Counsel laid stress on the observations made in para. 25 of this judgment which is quoted hereinbelow:

The above passage, we are of the view, does not really assist the Defendant in this case. What was held by the House of Lords in the case of Shephard (supra) was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their interest as they acted without the knowledge of the facts. In the instant case, we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest. The evidence regarding such conduct and declarations is not being used in his favour but against the legal representative of Bharat Singh i.e., the Defendant who would have become entitled to claim a share in the suit house if it had formed part of his estate. Such conduct or declaration would be admissible even according to the above decision of the House of Lords in which the statement of law in Snell s'' Equity to the effect ''but subsequent declarations are admissible as evidence only against the party who made them, and not in his favour'' is quoted with approval. The declarations made by Bharat Singh would be admissible as admissions under the provisions of the Indian Evidence Act being statements made by him against his proprietary interest under Sections 21 and 32(3) of the Indian Evidence Act.

The learned Counsel submitted that the learned judge wrongly referred to the sale deed of Kanailal Mukherjee inasmuch as in the sale deed, the Petitioner was not a party and. as such he is hot bound by it.

The learned Counsel for the Petitioner then relied on two decisions reported in Pramatha Nath Choudhuri and Ors. v. Krishna Chandra Bhattacharjee and Ors. 28 C.W.N. 1092 and Ajit Narain Chattopadhyay v. Aswatha Narain Chattopadhyay and Ors. 62 C.L.J. 430.

The learned Counsel submitted on these propositions that the admission by a person is not conclusive but may be shown to be wrong, otherwise, it is binding on the party making it or those claiming through him.

Then, the learned Counsel submitted that in view of the facts and circumstances of the case and in view of his submissions made above, the impugned order should be set aside and this revisional application should be allowed.

Mr. Dasgupta, the learned senior counsel, appearing for the opposite party No. 1 /Plaintiff submitted that definition of tenant under the West Bengal Tenancy Act has been given in Section 2(h) and the said definition is quoted hereinbelow:

2(h). tenant [means] any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and "''[includes any person continuing in possession after the termination of his tenancy or in the event of such person''s death, such of his heirs as were ordinarily residing with him at the time of his death] but shall not include any person against whom any decree or order for eviction has been made by a Court of, competent jurisdiction.

Mr. Dasgupta then referred to the definition of thika tenant as has been given in Section 2(8) of the Calcutta Thika Tenancy Acquisition & Regulation Act, 1981 (hereinafter referred to as ''Thika Tenancy Act'').

Mr. Dasgupta submitted that the suit was filed in'' 1989, rent was paid upto 1988. Thika Tenancy Act has been made effective from 1982 and Lilabati expired on July 11, 1963 keeping her will dated November 10, 1961.

The learned Counsel submitted that whether the Defendant is a thika tenant or a premises tenant is a question of fact which has been decided by the court below on consideration of the evidence on record and no interference can be done in such a case.

The learned Counsel relied on a decision reported in Shri Raja Durga Singh of Solan Vs. Tholu,

The learned Counsel relied mainly on para. 5 of this decision which is quoted hereinbelow:

We are not concerned with the second proviso. Below the second proviso the kind of suits which are triable by the revenue courts are set out in three groups. It is contended on behalf of the Respondents that the suit in question would fall under entry (e) in the second group. That entry reads thus:

Suits by a landlord to eject a tenant''. They also contend that their suit before the revenue court was one under entry (d) which reads thus:

Suits by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right.

It would, however, appear that not only items (d) and (e) but every other item in the three groups relates to a dispute between tenants on the one hand and the landlord on the other. There is No. entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits from the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant. This is precisely what has been held in the two decisions of the Lahore High Court relied upon by Mr. Achhru Ram. In the first of these two cases Tek Chand J., observed:

It is obvious that the bar under Clause (d) is applicable to those cases only in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy i.e., whether the status of the tenant fails under Sections 5, 6, 7 or 8 of the Act.

In that case the suit was instituted by someone claiming to succeed to the tenancy of certain land on the death of the occupancy tenant.-The learned Judge observed:

In a suit like the one before us the point for decision is not the nature of the tenancy, but whether the Defendant is related to the deceased tenant and if so whether their common ancestor had occupied the land. If these facts are established, the claimant ipso facto succeeds to the occupancy tenancy, But if they are found against him, he is not a tenant at all.

Mr. Dasgupta then submitted that scope of Section 115 of the CPC has been clarified in para. 7 of the judgment of Hon''ble Apex Court reported in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, .

The said observations made in para 7 is quted here-inbelow:

The submissions made by Shri Gupte, in our opinion, possess merit. The revisional jurisdiction has been conferred on the High Court by Section 115, CPC in these terms.

The High Court1 may call; far the record of any case which has been decided by any Court Subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears -

(a) to have exercised a jurisdiction not vested in it by law or

(b) to have failed to exercise a jurisdiction so vested or

(c) to have acted in the exercise of its jurisdiction illegaly or with material irregularity, the High Court may make such order in the case as it thinks fit.

The mass of reported Gases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section. The legal position was authoritatively laid down by the Privy Council as far back as 1894 in Raja Amir Hassan Khan v. Sheo Baksh Singh (1883-1884) 2 Ind. App. 237 (P.C.). The Privy Council again pointed out in Balakrishna Udayar v. Vasudeva Ayyar 44 Ind. App. 261 : AIR 1917 PC 71 that this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. This view was approved by this Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , and has since been reaffirmed in numerous decisions,

Mr. Dasgupta submitted that in view of the specific observations made in the instant Para of the said judgment of the Hon''ble Apex Court, there is no scope for interference by the Court u/s 115 of the Code of Civil Procedure.

Mr. Dasgupta further submitted that rent receipts were allegedly with the Petitioner but he did not produce it inspite of the notice being given for the purpose of production and in such a circumstances interference will be adverse against the Petitioner.

Mr. Dasgupta relied on a decision of the Hon''bie Apex Court reported in Hiralal and Others Vs. Badkulal and Others, .

Mr. Dasgupta made special reference on the observations made in para. 4 of this judgment which is quoted hereinbelow:

The fact that the entry was signed by both the Defendants who represented their family was not denied. Hiralal, Defendant, in the witness bos admitted that the Defendants deal in gold, silver and kirana and maintain regular books of account. It was also admitted that two or three muneems are in their employ for maintaining regular books of the business dealings. Hiralal was questioned. ''How much money was due, from the Defendants firm to the Plaintiffs firm?'' The answer was evasive, viz., ''He could not say how much was-due''. When questioned about his accounts, he replied that he had not filed them as he was ill. He further deposed that ''he had looked into his accounts, and Rs. 10,000 to Rs. 15,000 as principal and interest were due but he could not say what was the correct amount. When asked whether on the date of signing the acknowledgment he looked into the books to see what amount was due from him, his answer was in the negative. He further said that even after receiving notice he did not look into his own accounts to check as to what the correct balance was. A leading-question was put to him whether on Bhadon Sudi 11 Samvat 2006 there was an entry of Rs. 34,000 in the Defendants'' khata as being the balance due from them to the Plaintiffs. The answer was again evasive. He said ''I could not say whether there was any such entry in his books''. In these circumstances there was no justification for throwing out the Plaintiffs'' suit on the ground that the accounts were not explained'' to the Defendants by the Plaintiffs The Defendants had written the accounts in their own books from which the true'' balance could be ascertained. An inference from the statement of Hirala can easily be raised that the balance entry of Rs. 34,000 also existed in his own books. Mr. Bindra tried to get out of this situation by urging that it was no part of the Defendants'' duty to produce the books unless they were called upon to do so and the onus rested on the Plaintiffs to prove their case. This argument has to be negatived in view of the observations of their Lordships of the Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sanna A.l.R. 1917 P.C. 6 (A), which appositely apply here. This is what their Lordships observed:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, & failing, accordingly, to furnish to the Courts the best material for its decision; With regard to third parties this may be right enough - they have no responsibility for the conduct of the suit; but ..with regard to the parties to the suit it is in their Lorclships'' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.

This rule was once again reiterated in Rameshwar Singh v. Bajit Lal Pathak AIR 1929 P.C. 95(B)

Mr. Dasgupta then relied on another decision of the Hon''ble Apex Court reported in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, .

Mr. Dasgupta made special reliance on para, 5 of this judgment which is quoted here in below:

On behalf of the Appellant reference was made to the Area Book, Ex. 66 of the year 1890. The entry shows the name of Laxmibai widow of Govind Gopal Ketkar under the hearing (name of the person). Exhibit 67 is the entry from the Phalani Book for the year 1897 and shows the land as ''Kilvacha Dongar'' and under the column ''name of the person'' is shown the name of Laxmibai widow of Govind Gopal. Exhibit 68 is of the same year from the revision Phalani containing similar entry with the map attached. In Ex. 70 the name of Laxmibai is shown as ''khatedar'' for the year 1906. In the remarks column there is an entry ''one built well, one pakka built masjid, one Dargah, one tomb''. Exhibit 71 is an entry for the year 1915 from Akar Phod Patrak and in the column of ''Kabjedar'' the name of Rukminibai Hari appears with regard to plot 134. Thereafter, in the record of rights for the year 1913, Ex.76, the name of the predecessor of the Appellant is shown. On the basis of these entrues it was submitted by Mr. Gokhale that the ownership of the plot was with the Appellant and not with the Dargah. But there are important circumstances in this case which indicate that the Appellant is not the owner of Survey plot No. 134. Exhibits 64 and 65 are significant in this connection. Exhibit 64 is an entry from the ''Sud'' in Marathi for the year 1858 in connection . with Survey plot No. 134 (Revisional Survey Number). The original Survey number of this plot was 24 and it was known as ''Kilyacha. Dongar''. The total area shown to be 249 acres and 24 Gunthas. It is shown as ''Khalsa'' land. Kharaba is shown as 89 acres 24 Gunthas and the balance of the area is shown as 160 acres. In the last column the name of the cultivator is not mentioned but it is shown as ''Khapachi''. It is significant that the name of the Ketkar family is absent from this record. No convincing reason was furnished on behalf of the Appellant to show why his name was not entered in the ''Sua". It is also important to notice that the Appellant has furnished no documentary evidence to show how his family acquired title to the land from the earliest time; there is no sanad or grant produced by the Appellant to show that he had acquired title to the land. It further appears that the Appellant''s family did not assert any title to the land at the time of the survey made in 1858 ; otherwise there is no reason why its name was not entered in the !Sud'' of the year 1858. It is true that there are a number of entries subsequent to the years 1890 and 1897 in which the Ketkar family is shown as the ''khatedar'' or the occupant but these entries are not of much significance since the Ketkar family was in the fiduciary position of a Manager of the Dargah and was lawfully in possession of Survey plot No. 134 in that capacity. There is also another important circumstance that the Appellant has no lands of his own near ploot No. 134 and the nearest lands he owns are in Bandhanwadi which are admittedly 3 1/2 to 4 miles, away from the top of the hill. There is also the important admission made by the Appellant in the course of his evidence that ''there is no cemetery or burial ground in Survey No. 134''. But this evidence is in direct conflict with the statement of the - Appellant in the previous case that ''Round about the Dargah many people die devery year''. Anyone that died there, whether Hindu, Muslim or Parsee if he has no heirs is buried there. He also conceded that there is one public tank known as ''Chasmyachi Vihir'' near the Dargah and there are 5 wells near the Dargah and five boundary ''Aranas'' about one mile from the Dargah. Lastly, reference should be made to the important circumstances that the Appellant has not produced the account of the Dargah income. In the course of his evidence the Appellant admitted that he was enjoying the income of plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that ''he had got recor''d of the Dargah income and that account was (sic)ept separately''. But the Appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from plot No. 134 was dealt with. Mr. Gokhale, however, argued that it was no part of the Appellant''s duty to produce the accounts unless he was called upon to do so and the onus was upon the Respondents to prove the case and to show that the Dargah was the owner of plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lied on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts-at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state, of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus proof. In Murugesam Piilai v. Ghana Sambandha Pandara Sannadhi (supra), Lord Show observed as follows:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the courts the best material for its decision. With regard to third parties, this may be right enough -they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships'' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which "would throw light upon the proposition.

This passage was ''cited with approval by this Court in a recent decision Biltu Ram v. Jainandan Prasad Civil Appeal No. 941 of 1965, D/- 15.4.1968 (SC). In that case, reliance was placed on behalf of the Defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh 42 Ind. App 202 p. 206 : AIR 1915 P.C. 96 p. 98

But it is open to litigant to refrain from producing any documents that he considers irrelevant ; if the other litigant-is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him is such affidavit to be relevant and proper. If he fails so to do, neither - he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents,

Mr. Dasgupta submitted in this context that with a view to proving the fact, the Defendant/tenant could not prove the status from any document of Calcutta Municipal Corporation and pucca structure does not come within the thika tenancy provision.

Mr. Dasgupta also relied on the decisions reported in Monmatha Nath Mukherjee Vs. Sm. Banarasi and Others, and Annapurna Seal v. Tinkari Dutia 66 C.W.N. 338.

The learned Counsel then relied on a full bench decision of this High Court reported in Lakshmimoni Das and Others Vs. State of West Bengal and Others, .

Mr. Dasgupta submitted that only lands comprised in thika tenancy and khatal lands vest in State and no other lands.

Mr. Dasgupta made a special reference to the observations made in para. 43 of this decision which is quoted hereinbelow:

Keeping in mind of the principle of interpretation indicated hereinabove, an attempt should be made to ascertain what .was the mischief sought to be remedied by the impugned legislation. If the interpretation put forth by Mr. Gupta, the learned Additional Advocate General appearing for the State Respondents is accepted in toto, it appears to us that the same would undoubtedly produce palpable injustice, anomaly, contradiction and lead to absurd results and in order to avoid such peculiar situation, a reasonable meaning to those words should be given which does not cause any ambiguity and/or absurdity and the mischief sought to be remedid is also properly achieved. In this connection, the title of the impugned Act may supply some guidance to the construction of Section 5 of the impugned Act. Although, the title does not override the plain meaning of the section but in case of ambiguity and doubt, the title serves as a good guideline. The title of the impugned Act only refers, to acquisition and regulation of thika tenancy (by repealing the Calcutta Thika Tenancy Act, 1949). Looking into the history of the legislation and purpose of the legislation, it appears to us that the impugned legislation is plainly to abolish the rights of the landlord over the lands held by thika tenants which were so long governed by the provisions of Calcutta Thika Tenancy Act, 1949. The passage quoted from Cooley''s ''A'' Treatise on the Constitutional Limitations'' at pages 143 and 149 since referred to by Mr. Pal appearing for same of the Petitioners may not be wholly applicable while construing a provision of statute in our country. The legislation in our country is not bound by the title to an Act strictly and the legislature can travel beyond the title but at "the same time Constitution makers did not intend that the legislature will pass an altogether different Act under the cover of a title thereby misleading the legislators themselves and also the authority requiring to give assent to the legislation. In our view, it should be the endeavour for the Court to strike a balance by giving a meaning which has connection with the title of the Act and the intention of the legislature and the evil sought to be remedied. At the same time, the Court has to interpret the Act in such a manner so that it may not read to any destructive result and/or absurd or inconsistent situation. In our view, while interpreting the words ''other lands'' after the words ''thika tenancy'' the legal-maxim ''noscitur a sociis'' (a thing is known by its companion) should be borne in mind. Applying these legal''maxims, it appears to us that ''other land'' appearing in Section 5 of the impugned Act must-mean land falling under the category of thika tenancy land. This general words following specific word must apply not to different objects of a widely differing character, but something which, can be called as a class or kind of objects. In this case, from the title, preamble of the Act, the intention of the legislature as also on consideration of the mischief sought to be remedied by the impugned Act it must be held that ''other land'' must be land coming within the category of thika tenancy land, if, however, appears that besides the lands comprising tbika tenancies lands used as khatals and the right, title and interest of landlord in such khatals are intended to be vested u/s 5. Land comprising pucca and permanent structures erected by the tenant for user of the land for khatals and lands used for khatals held under a lease for a period beyond twelve years cannot comprise thika tenancy within the meaning of ''thika tenancy'' under the Calcutta Thika Tenancy Act. It also appears to us that the. expression ''thika tenancy'' under the aforesaid Act has been judicially noted in various decisions of this Court as referred to by Mr. '' Pal and it must be accepted that the Legislature is aware of the meaning of such expression and has, therefore, used the expression on the basis of the said accepted meaning But it appears to us that Section 5 expressly envisages vesting-of khatals although all khatals may not conform to ''thika tenancy'' within the meaning of thika tenancy under the Calcutta Thika Tenancy Act, 1949 which is repealed by the impugned Act. In view of express reference of khatal without any. reservation in Section 5, we are inclined to hold that although the impugned act is essentially a piece of legislation for vesting of thika tenancy lands and temporary or kutcha structures thereon and for regulation of such lands and structures and the title of the Act and the provision for repealing the. Calcutta Thika Tenancy Act, 1949 also conform to such intention and purpose of the impugned legislation, khatal lands held on lease even if such lands do not comprisethika tenancy within the meaning of thika tenancy under the Calcutta Thika Tenancy Act also vest u/s 5. It appears to us that most of the khatals comprise kutcha or temporary structure and they also comprise thika tenancies within the meaning of ''thika tenancy'' under the said 1949 Act.. We may also take judicial notice that in majority cases, thika tenancies comprise bustees and/or slums and the legislature has intended to vest thika tenancies and structures thereon for regulating such thika tenancy lands. It therefore appears to us that with an intention to regulate khatal lands, along with other underdeveloped lands and structures mainly comprising bustees or slums, the legislature has expressly included khatls in Section 5 for the purpose of vesting of such khatals and consequential control, and regulation of khatals. We therefore approve the interpretation of Section 5 of the impugned Act as made in the Bench decision of this Court in Jatadhari Daw''s case (1986)1 Cal. H.N. 21, Appeal No. 239 of 1978. Save as aforesaid, no other land or structure vest under the impugned Act.

Mr. Dasgupta submitted that evidenciary value of an affidavit, per se don''t become evidence and Mr. Dasgupta placed reliance on a Division Bench judgment of this High Court reported in Parekh Brothers Vs. Kartick Chandra Saha and Others, .

Mr. Dasgupta made special reference of the observations made in para 15 of this judgment which is quoted hereinbelow:

As for the learned Judge''s argument that since one of the Plaintiffs is admitted by the Appellant to the landlord, one can take the names of the two others as surplusage, Mr. Ghosh argued, -and in our opinion argued correctly, that the contract that has been pleased in this case is different from the contract that has been proved by evidence and the Plaintiffs can only succeed on the case that he makes out in his evidence. There can be cases where three Plaintiffs found their claim on one and the same fact and though two of them fail to prove their claim on the basis of that fact even so the third Plaintiff may succeed. If does not matter that more than one person tried to found a claim on the same fact, the only party that will succeed in such a case is the party which succeeds in establishing his claim on that. fact. Here, however, the situation is entirely different. The contract that has been pleaded is a contract in which the Defendant is a party on one side and the three Plaintiffs are the party on the other side. On the other hand, the contract that seems to have been proved in evidence is a contract in which one of the parties was the Appellant and other party was Kartick Chandra Saha. This contract is not the. same contract as the alleged contract between the Appellant and the three Plaintiffs. Therefore, one cannot say that the contract that has been proved is the same as the contract. that has been alleged. Therefore, Kartick cannot succeed in his plea that the names of the other two brothers which appear as co-Plaintiffs in the plaint or in the notice should be treated as surplusage. Mr. Ghosh went further the said that Kartick cannot even take the plea that if he has failed to prove his case, he ought to succeed on the Defendant''s admission in the written statement. This is to say, Kartick cannot invoke the principle laid down in Srinivas Ram Kumar Vs. Mahabir Prasad and Others, where it had been held that a Plaintiff even though fails on the case that he made out in the plaint can succeed on the case admitted by the Defendant. The rule in Srinivasan''s case (Supra) must be taken as confined to cases where liability is clearly admitted without reservations. In this case, however, the Defendant does not admit liability at all. He contests practically every allegation of the Plaintiffs and on top of everything, the Defendant says: ''These Plaintiffs are not my landlords at all and who are they to eject me ?'' It cannot be said, therefore, that the written statement of the Defendant contains any admission of liability. It is clear that the evidence on which the learned trial Judge relies does not support the Plaintiffs case at all. Let us assume for the sake of argument that the premises in question belonged to the three Plaintiffs and Kartick Chandra Saha had no right to let out the premises in his own name alone. Even so, the three Plaintiffs cannot say that they are the landlords of the Defendant. Tenancy is a matter of contract. If the other Plaintiffs were nowhere in the picture when the tenancy agreement was made if the Defendant did not know about the existence of the other two brothers or at least did intend or contemplate entering into an agreement of tenancy with them, it is impossible to argue that there was in fact, an agreement of tenancy between the Defendant and all the three Plaintiffs. The two other Plaintiffs must seek for relief against Kartick. They can move against the Defendant but in that case they must ask for a different kind of relief and they cannot found their .claim for relief on an alleged contractual relationship between themselves and the Defendant when, in fact, no such relationship existed. In these circumstances, one cannot escape the conclusion that the Plaintiffs were not at all the landlords of the Defendant: Issue no! 4, therefore, should have been decided in favour of the Appellant.

Mr. Dasgupta then submitted that there is no scope for filing an application u/s 17(2) of the Premises Tenancy Act, if it is a thika property,

Mr. Dasgupta further submitted that all along the Defendant/tenant paid rent as Premises Tenant and only by filing of return or deposition of rent with the Thika Controller does not make a property thika tenancy property.

Mr. Dasgupta emphatically submitted that inspite of the rent receipts being in possession with the Defendant/tenant, they did not produce it and the Defendant only relied on the affidavit filed by the, Plaintiff in a different probate proceeding and according to Mr. Dasgupta if it is an admission, then admission must be clear and unambiguous and Section 17 of the Evidence Act clearly provides this proposition.

For the purpose of ctiscussional convenience Section 17 of the Evidence Act. is quoted hereinbeiow;

Section 17. Admission defined. An admission is a statesment, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

Mr. Dasgupta further submitted that-after the promulgation of Thika Tenancy Act, they submitted a petition u/s 17(2) of the West Bengal Premises Tenancy Act which is not at all relevant or applicable, if Defendant takes it as a thika tenancy property.

Mr. Dasgupta further submitted that in a Corporation bill only insertion of word ''ground'' does not make a property a thika tenancy property.

Mr. Dasgupta concludingly submitted that the order impugned is failed on law and there is no scope for interference in the impugned order and the learned court below has rightly come to a finding that the Defendant/tenant is a premises tenant and not a thika tenant.

Heard the learned Counsel for the parties, considered their submissions, perused the documents on records and the order passed by the learned court below:

It goes without saying that if somebody makes a claim, the onus is on him to prove his claim by oral or documentary evidence and it is not the duty of the other side to disprove the claim, here the Defendant suddenly, took a plea that the property is a thika tenancy property and there is no landlord-tenant relation in between the Plaintiff and the Defendant. It is not known that if the tenant/Defendant accepts the property as a thika property. Then why the tenant filed an application u/s 17(2) of the West Bengal Premises Tenancy Act and it is also not known that why inspite of notice, the Defendant/tenant did not produce the same and best evidence should not be shut out, which is a common principle. Here accordingly, the inference goes against the Defendant/tenant; The Defendant/tenant upto 1988 accepted that he is a premises tenant by offering'' rent and thereafter, suddenly, he started depositing rent with the Rent Controller which bears no meaning or no reason.

The evidenciary value of an affidavit is not much and ipso facto does not come out as evidence and the Defendant/tenant, Petitioner herein only relied on the said affidavit filed in connection with probate proceeding. If the Petitioner wants to take it as admission, it cannot be said that this is unambiguous and clear admission. This affidavit was deposited from the landlord''s side in a different context and the tenant/Defendant cannot rely on such affidavit accepting it to be granted as evidence ipso facto. The tenant/Defendant, Petitioner herein tried to shift the onus on the Plaintiff/ opposite party No. 1 regarding proving of the status of the tenant/Defendant as thika tenant and not'' the premises tenant. But the law is also very clear in the subject that he, who asserts anything, he must have to prove the samething in the same style and in the same manner.

In view of the discussions made above, I respectfully agree with the submissions made by the learned Counsel for the opposite party No. 1 /Plaintiff, Mr. Dasgupta and in my view there is no scope for interference in this impugned order u/s 115 of the Code of Civil Procedure.

The revisional application therefore fails and is dismissed.

In the circumstances, however, there will be no order as to costs.

Urgent xeroxed certified copy, if applied for will be given to the parties expeditiously.

LATER 01.07.2004

Since the suit is pending, the same may be disposed of as expeditiously as possible preferably within a period of six months from the date of communication of this judgment and order.