Dhanesh Chandra Bhattacharya vs Panna Lal Saha & Anr

This second appeal, at the instance of the defendant in an eviction suit, is directed against the judgment and decree dated February 11, 2007 passed by the learned Additional District Judge, 2nd Court at Nadia in Title Appeal No. 147 of 2006, upholding and confirming the judgment and decree for eviction dated August 17, 2006 passed by the learned Civil Judge, (Junior Division), 1st Court, Krishnagar, Nadia in T.S. No. 124 of 1998. 2. For the sake of convenience, the parties to this appeal are referred to by their array in the suit before the trial Court. The plaintiffs, as the sebaits of Sree Sree Raghunath Jew, Sree Sree Radhakanta/Radha Gobinda Jew, Sree Sree Jagganath Jew filed the eviction suit, before the learned Civil Judge, (Junior Division), 1st Court, Krishnagar at Nadia, claiming a decree for recovery of khas possession of the suit property, comprising one residential house over Holding No. Mahitosh Biswas Street, under Ward No. 22 of Krishnagar Municipality, P.S. Kotwali, District- Nadia (hereinafter referred to as "the suit property") by evicting the defendant therefrom and a decree for mesne profits. In the plaint it was the case of the plaintiffs that they had inducted the defendant as a tenant in respect of the suit property at, a rental of Rs.150/- per English Calendar month and the latter defaulted in payment of rent and he also damaged the suit property. By an agreement for sale dated December 11, 1994 between the plaintiffs and the defendant, the latter agreed to purchase the suit property but subsequently he failed to perform the said agreement for sale and did not pay the rent of the suit property. By a notice dated March 6, 1998 issued under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the Act of 1956"), the plaintiffs called upon the defendant to vacate the suit property within April 30, 1998, but in spite of the receipt of the said notice the latter failed and neglected to vacate the suit property and, as such, the plaintiffs filed the eviction suit seeking the defendant''s eviction from the suit property. The defendant contested the eviction suit. He filed written statement, as well as the additional written statement denying all the material allegations made in the plaint. The defendant alleged that on March 15, 1975 when the plaintiffs requested him to hand over vacant possession of the suit property, he drove them out of the suit property in presence of many people namely, Sambhu Muhuri, Asit Ghosh, Buro Pramanik, Bhabani Pal Chowdhury and others and, as such, he claimed his title to the suit property against the plaintiffs through adverse possession. In support of the claim of his title through adverse possession, he alleged to have paid the municipal rates and taxes in respect of the suit property. Based on the pleadings of the respective parties the learned trial Judge framed the following issues: 1. Is the suit maintainable in its present form? 2. Whether the suit is barred by the principle of estoppel, waiver and acquiescence? 3. Whether the suit is barred under Section 34 of Specific Relief Act? 4. Whether the plaintiffs have right, title, interest in the suit property? 5. Whether the defendant is a tenant under the plaintiffs? 6. Whether the notice u/s 13(6) W.B.P.T. Act has duly been served? If so whether the said notice is legal and valid? 7. Whether the defendant is a defaulter in respect of payment of rent for the suit premises? 8. Whether the plaintiffs are entitled to get any decree as prayed for? 9. To what other relief, if any, plaintiffs are entitled? 3. On the above issues the parties went for trial of the suit. On behalf of the plaintiffs the plaintiff no. 3 adduced evidence as PW1 and the clerk of the D.S.R. office of Krishnagar, adduced evidence as PW-2. The plaintiffs produced the certified copy of `Arpannama'' (the Deed of Dedication) on August 05, 1899 executed by Late Kunja Behari Saha (Ext.-7) whereby he dedicated the suit property in favour of the deties Sree Sree Raghunath Jew and Sree Sree Radhakanta Jew (hereinafter referred to as "the said deities") and appointed his wife Kalidasi Dassi, since deceased as the sebait. He also proved the agreement for sale dated December 11, 1994 whereby the defendant agreed to purchase the suit property from the plaintiffs (Ext.- "1"), the land revenue records recording the names Amulya Baran Saha, Shasibhusan Saha, Sushil Krishna Saha, Nrisingha Prasad Saha, Basudeb Saha, the predecessors of the plaintiffs, in respect of the suit property (Ext-2), the relevant C.S. record, recording the name of Kalidasi Dassi in respect of the suit property (Ext.-3), the Assessment Register of the Krishnagar Municipality disclosing the suit property belonging to Sree Sree Radhakanta Jew and of the sebaits Amullya Charan Saha one of the predecessors of the plaintiffs (Ext.-6), the notice under Section 13(6) of the Act of 1956 dated March 06, 1998 (Ext-5) together with the postal acknowledgement due card (Ext-5/2) disclosing the receipt of the said notice by the defendant. On behalf of the defendant, he himself as D.W.-1 and one Tarak Chandra Sadhukhan, as D.W.-2 adduced evidence. The defendant disclosed and proved two municipal receipts in respect of the suit property as (Exts.-A and Ext.- A/1). However, none of the said persons namely, Sambhu Muhuri, Asit Ghosh, Buro Pramanik, Bhabani Pal Chowdhury, before whom the defendant claimed to have drove the plaintiffs out of the suit property on March 15, 1975 adduced evidence and in his cross-examination D.W.-2 stated that Sambhu Muhuri, Buro Pramanik were still alive. Though, in his affidavit for examination-in-chief D.W.-2 stated that the defendant drove the plaintiffs out of the suit property in his presence, but the defendant in his written statement did not mention the name of the D.W.-2 and the latter in his evidence stated that he cannot say the suit holding number and on what basis the defendant resides of the suit property. 4. Upon elaborate consideration of the evidence adduced on behalf of the plaintiffs and the defendant, the learned trial Judge held that the certified copy of the `Arpannama'' (Ext-7) executed by the said Kunja Behari Saha on August 5, 1899, proved the dedication of the suit property in the name of the said deities, as well as the appointment of the said Kalidasi Dassi as the sebait of the said deities. Applying the provisions contained in Order I Rule 9 of the Code of Civil Procedure providing that misjoinder of the parties does not entail dismissal of the suit, the learned trial Judge held that in the present case the plaintiffs are presumed to have filed the eviction suit as the sebaits of the said deities and the plaintiffs have proved their title to suit property. It was held that the notice dated March 06, 1998 (Ext. 5) issued by the plaintiffs to the defendant under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 was a valid and lawful notice and the same was duly received by the defendant. The learned trial Judge further held that the plaintiffs have proved the defendant to be a monthly tenant in respect of the suit property under them and since the defendant did not produce any rent receipt or in any other document showing payment of rent in respect of the suit property. He was a defaulter in payment of rent to the suit property to the plaintiffs. 5. Following the decision of a learned Single Judge of this Court in the case of Jai Krishna Arora v. Maulvi Abdur Rab Firoze Ahmed and Co. reported in (2006) 1 CHN 27, the learned trial Judge held that it is settled position of law that long occupation of the suit property does not create any right by way of adverse possession and a right adverse to the original owner has to be claimed and asserted. Further, following the Division Bench decision of this Court in the case of Premendu Bhusan Mondal v. Sreepati Ranjan Chakravarty reported in AIR 1978 Cal 55, the learned trial Judge also held that in the present case when the defendant admitted title of the plaintiffs in respect of the suit property, the municipal tax receipts (Exts. A and A/1), recording payment of municipal tax in respect of the suit property by him, in unauthorised possession admitting title of the true owner do not go to prove his adverse possession. The learned trial Judge further held that once it is proved that the plaintiffs his right, title and interest in the suit property and since they filed the suit for eviction and for recovery of khas possession, the suit is not barred under Section 34 of the Specific Relief Act and the same is well maintainable. 6. On these findings, the learned trial Judge passed a decree for eviction against the defendant directing him to quit, vacate and give delivery of the suit property in favour of the plaintiffs, as the sebaits of the said deities within sixty days from the date of the decree, failing which the plaintiff will be at liberty to put the decree in execution through the Court. The learned trial Judge also passed a decree for mesne profits and that the sum of Rs.538.90/- be paid by the defendant to the plaintiff. The defendant carried the said judgment and decree for eviction passed by the learned trial Judge in appeal, being Title Appeal No. 147 of 2006 before the learned Additional District Judge, 2nd Court at Nadia. 7. The learned appellate Court below considered the pleadings of the respective parties and re-appreciated the oral and documentary evidence adduced by the parties through their respective witnesses before the learned trial Judge. The learned appellate Court held that by producing the certified copy of the `Arpannama'' dated August 5, 1899 the plaintiffs proved the dedication of the suit property of the said Kunja Behari Saha in favour of the deities namely, as well as the appointment of his wife, Kalidasi Dassi as the sebait of the said deities. The learned appellate Court below also found that the name of the said Kalidasi Dassi, since deceased was recorded in respect of the suit property in the revenue records, the name of the deity Sree Sree Radha Gobinda and the sebait, the predecessor of the present plaintiffs is recorded in the Assessment Register of the Krishnagar Municipality in respect of the suit property. The learned appellate Court below also agreed with the finding of the learned trial Judge, that the defendant failed to prove that on March 15, 1975 he drove out the plaintiffs from the suit property, which was the sheet anchor of his defence in the eviction suit that he acquired title of the suit property by adverse possession against the plaintiffs and that in the present case, the municipal receipts issued by the Municipality (Exts.- A and A/1) towards payment of municipal tax in respect of the suit property by him did not prove his adverse possession. The learned appellate Court below also considered the agreement dated December 11, 1994 (Ext.-1) between the plaintiffs and the defendant whereby the latter agreed to purchase the suit property from the plaintiffs admitting their title in respect of the suit property, as well as the fact that the defendant in his evidence admitted the said agreement for sale dated December 11, 1994. Upon these findings, the learned appellate Court below also held that the plaintiffs as the sebait of the said deities have a good title in respect of the suit property and the defendant failed to prove his defence in the suit claiming title to the suit property against the plaintiffs by way of adverse possession. Considering the evidence adduced by the plaintiffs, the learned appellate Court below also held that the notice dated March 7, 1998 issued by the plaintiffs under Section 13(6) of the Act of 1956 issued to the defendant was a valid and lawful notice which was received by the defendant but the latter did not reply to the said notice and the defendant is the defaulter in payment of rent of the suit property. Upon these findings, the learned appellate Court below agreed with and upheld the findings of the learned trial Judge in the suit in respect of each of the aforementioned issues, as well as the decree for eviction passed against the defendant appellant. By the judgment dated December 11, 2007 the learned appellate Court below dismissed the appeal filed by the defendant on contest and confirmed the judgment and decree dated August 17, 2006 passed by the learned trial Judge in the eviction suit. As stated earlier, it is the said judgment and decree dated December 11, 2007 which has been assailed by the defendant in the second appeal. 8. On February 19, 2008 the Division Bench of this Court admitted the second appeal by framing the following the substantial question of law. "Whether the learned Courts below erred in law in holding that the appellant/defendant has failed to prove his claim of ownership in the suit property by way of adverse possession?" During the pendency of the second appeal the defendant was required to deposit Rs.150/-, per month with the learned executing Court on account of occupation charges of the suit property. 9. On April 13, 2017 when the second appeal was taken up for hearing by this Court the only ground that was urged by the learned advocate appearing for the defendant was the aforementioned question framed by the Division Bench of this Court at the time of admission of appeal. 10. It is settled law that under Section 100 of the Code of Civil Procedure, (in short "the Code") a second appeal before the High Court can only be maintained and admitted provided the same involves a substantial question of law which is to be framed by the Court at the time of admission. Sub-section (5) of Section 100 of the Code provides that at the time of hearing of the second appeal, the respondent can raise an argument that the case does not involve any question of law. In the present case, at the very outset of the hearing of the appeal Mr. S.K. Kundu, learned advocate appearing for the plaintiffs, the respondents in the appeal raised an objection that the above question framed on February 19, 2008 at the time of admission of the second appeal does not involve any question of law. He further urged that even a reading of the Memorandum of Appeal filed by the defendant in the second appeal goes to show that none of the grounds urged therein raise any question of law and all the said grounds pose questions of fact. Even Mr. Rajdeep Bhattacharyya, learned advocate appearing for the defendant, the appellant in the second appeal could not dispute the contention raised on behalf of the plaintiffs that the aforementioned question framed on February 19, 2008 does not involve any question of law, nor could he point out any of the grounds urged by the defendant in the Memorandum of Appeal filed in this second appeal, raises any question of law. 11. From a reading of the above question framed at the time of admission of the present appeal on February 19, 2008 it is clear that the same involves a question relating to findings of facts arrived at by both the learned Courts below. Even in the Memorandum of Appeal any ground has not been urged by the defendants that in the instant case any of the findings of fact arrived by the learned Courts below after appreciating the evidence adduced by the parties is vitiated by any wrong test or on the basis of any assumption and conjectures or there is an element of perversity involved therein. Further, even the learned advocate appearing for the defendant appellant did not make any submission pointing out any error in any of the findings of the learned Courts below to be based on without any evidence or based on inadmissible evidence or to be perverse. 12. It is settled law that a substantial question of law framed by the High Court at the time of admission of the second appeal is not final and it is open to the respondent to demonstrate during the hearing of the appeal that no substantial question of law arose for consideration in the case and the second appeal should be dismissed. An order admitting a second appeal is neither a final order nor an inter locutary/interim order, it does not decide any issue but merely entertains an appeal for hearing. In this regard, ready reference may be made to the decision of the Supreme Court in the case of S.B. Minerals v. MSPL Ltd. reported in 2010(1) R.C.R.(Civil) 558 : (2010) 12 SCC 24. 13. For all the foregoing reasons, I accept the contention raised on behalf of the plaintiffs respondents in the appeal that the present second appeal involves no substantial question of law. Accordingly, the second appeal stands dismissed with costs assessed at Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the appellant to the respondents, as the sebaits of the deities Sree Sree Raghunath Jew and Sree Sree Radhakanta Jew to be utilised for the maintenance and seba puja of the said deities. The interim order passed in the appeal also stands vacated. In view of dismissal of the second appeal, the application, being CAN 4845 of 2016, filed by the respondents, claiming enhancement of occupation charges payable by the petitioner in respect of the suit property has become infractuous and the same stands dismissed accordingly. The Department is directed to forthwith send down the lower Courts'' records to the learned Court below. Let, urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.