Smt. Reena Das vs M/S. Air Constructions and Consultants Pvt. Ltd.

Hon''ble Mr. Justice, Maharaj Sinha

The plaintiff instituted the suit way back in the year 1999, to be exact on 6 May 1999 for a decree for recovery of possession of a flat on the ground floor of premises no. 8, Short Street, Calcutta, decree for a sum of Rs. 2,31,45,735/-, decree for a sum of Rs.5,52,000/- by way of damages for wrongful occupation of the flat by the defendant as trespassers with an alternative claim for an enquiry into damages suffered by the plaintiff by reason of wrongful occupation of the said flat by the defendant and a decree on the basis of such enquiry. The case of the plaintiff as made out in the plaint is that the plaintiff was and is the owner of the premises no. 8, Short Street, Calcutta, (the premises, in short), the particulars of which are mentioned in a schedule annexed to the plaint. The approximate area of the premises is 23 cottahs, 10 chittacks, 40 square feet of land with two separate two-storied buildings described as main building and the annexe building with garage, servants'' quarters and a lawn in front of both the buildings.

One Indian Institute of Material Management (IIMM, in short) has at all materials time been and is still in occupation of the first floor of the annexe building at the said premises as a tenant thereof and the plaintiff resides on the first floor of the main building.

On 26 December 1987, the plaintiff and M/s. Air Constructions & Consultants Pvt. Ltd. (the defendant, in short) had "entered into an agreement in writing for development of the said premises into a multi-storied building on the terms and conditions contained in the said agreement". [Exhibit - A].

Some terms and conditions of the said agreement which, according to the plaintiff, are material for the purpose of adjudication of the suit are mentioned in brief in paragraph 6 and its several sub-paragraphs of the plaint. The plaintiff in part performance of her obligations under the said agreement made over possession of the entire ground floor flat in the said main building, excepting one room and one bathroom to the defendant, a schedule annexed to the plaint contains the full description of the said flat.

In spite of the plaintiff''s best efforts to find the said tenant, IIMM an alternative accommodation to enable the defendant to commence the work of construction as agreed, it was due to breach of the defendant''s obligation under the said agreement, the said tenant could not be provided with an alternative accommodation. The defendant, in fact, had never been ready and willing to perform its part of the contract under the said agreement and committed various breaches of the terms of the said agreement. Some such alleged breaches on the part of the defendant, however, are mentioned in paragraph 8 and its several sub-paragraphs.

However, since 10 years had passed from the date of the said agreement and nothing really had happened because of the failure and neglect of the defendant to perform its part under the said agreement as alleged in paragraphs 10 and 11 of the plaint, the plaintiff eventually by her letter dated 6 July 1998 communicated her decision to terminate the said agreement and asked the defendant to give peaceful and vacant possession of the said flat to the plaintiff. The defendant, according to the plaintiff, came into possession of the said flat only by virtue of the said agreement dated 26 December 1987 as a contractual licensee which the plaintiff had revoked by the said letter dated 6 July 1998 and the defendant was thus under an obligation to make over vacant possession of the said flat to the plaintiff which, needless to mention, the defendant did not do or failed to do and that compelled the plaintiff to institute the suit against the defendant.

The plaintiff has also claimed loss and damages against the defendant because of the alleged breach or breaches of the said agreement and particulars of such loss and damage are mentioned in paragraph 14 of the plaint.

According to the plaintiff the defendant has been in occupation of the said flat as trespasser from 6 July 1998 and as such the defendant is liable to pay damages at the rate of Rs.2,000/- per day "on and from 6 July 1998 till the recovery of possession of the said flat".

As aforesaid, the plaintiff has also claimed a decree for Rs. 5, 52,000/- by way of damages at the rate of Rs.2,000/- from 6 July 1998 till 8 April 1999 with an alternative claim for enquiry into the damages suffered by the plaintiff for wrongful occupation of the said flat by the defendant "and a decree for such sum as may be found due and payable upon such enquiry".

The case of the defendant as set up in its written statement is that before the said agreement dated 23 December 1987 was signed "the plaintiff put the defendant into possession" of the ground floor flat as a monthly tenant on 15 September 1987 at a monthly rent of Rs.1,500/- and Rs.3,500/- as maintenance charges. After the defendant became a monthly tenant the defendant at the request of the plaintiff agreed to develop the property of the plaintiff and as such the said agreement was made by the plaintiff and the defendant on 23 December 1987.

As far as the said tenant of the plaintiff, IIMM is concerned the defendant has said in its written statement that the IIMM was in occupation of the portion of the said premises as tenant "for a long time" and that "the plaintiff undertook to deliver the vacant possession of the premises to the defendant for the purpose of the development of the said property within 48 months and/or earlier from the date of execution" of the said agreement which the plaintiff failed to do. The plaintiff "could not remove her tenant (IIMM)" and that is why the defendant could not construct the said building.

"The defendant is under no obligation to make over vacant possession of the said flat to the plaintiff" as the defendant became a monthly tenant of the plaintiff in respect of the said flat "before signing" of the said agreement. The further stand of the defendant is that the defendant was paying rent to the plaintiff and the plaintiff duly accepted such rent "till the month of September/October 1998 which was after the notice of termination dated 6 July 1998". [Clause II of Sub-paragraph (d) of paragraph 1 of the written statement].

The defendant has, however, said that "the plaintiff never made over possession of the entire ground floor flat in the main building excepting one room and one bathroom to the defendant pursuant to the terms of the said agreement and in part performance of the obligation thereunder by the plaintiff".

On the other hand, according to the defendant, the plaintiff made over the possession of the entire ground floor flat in the main building excepting one room and one bathroom to the defendant before the execution of the agreement when the plaintiff accepted the defendant as a monthly tenant.

I must admit before I proceed further that though I have read paragraph 4 of the written statement or rather the allegations made therein by the defendant more than once, I have utterly failed to reconcile the allegations of the defendant. In my opinion, reconciliation of the allegations made in paragraph 4 of the written statement is an extremely hard job, if not practically impossible.

In paragraph 5 of the written statement the defendant has said that the defendant "was never obliged to remove the tenant but the tenant was not willing to shift to alternative places which was shown by the defendant to the tenant". According to the defendant "it is the plaintiff who did not cooperate at all to shift her tenant to another place".

According to the defendant "it was mentioned in the agreement that the plaintiff will look after for her tenant a suitable place by way of alternative accommodation and hand over vacant possession to the defendant. The plaintiff failed to do so. The defendant tried its level best to remove the tenant of the plaintiff within 48 months as stipulated in the agreement and even thereafter also to a suitable alternative place but the tenant refused to vacate the said premises".

I am afraid, as far as the above allegations of the defendant in paragraph 5 of the written statement are concerned, I have to repeat the same remark as I have made above. In the rest of the written statement the defendant practically has repeated its statements and said that the defendant is "still willing to perform the part of the obligations under the said agreement".

The defendant also approached the Kolkata Municipal Corporation for having the building plan sanctioned by it and "the plan was never rejected by the Kolkata Municipal Corporation". Then the defendant has said, it "has suffered monetarily to the tune of Rs.15,00,000/- towards preparation of plan and for obtaining sanction from Kolkata Municipal Corporation". Then the defendant has said that "the plan was made three to four times". Due to negligence on the part of the plaintiff and on the part of the tenant the construction work could not be started and for that defendant suffered huge losses. [paragraph 8 of the written statement].

On the basis of the respective pleadings of the parties in the plaint and the written statement the Court (Justice Arun Kumar Bhattacharya) framed several issues, to be precise, nine in number, on 5 September 2006. The suit, however, was tried practically on one or rather two issues, namely (I) whether there is any relationship of landlord and tenant between the plaintiff and the defendant and (II) whether the defendant is liable to make over vacant possession of the ground floor flat to the plaintiff. However, for the sake of convenience the issues framed by the Court are set out below:-

1]

Is the suit maintainable?

2]

Did the defendant commit breach of the agreement dated December 26, 1987?

3]

Did the plaintiff suffer loss and damages on account of the breach of the agreement by the defendant?

4]

Was the defendant prevented by the plaintiff from performing the part of its obligation under the agreement dated December 26, 1987?

5]

Is there any relationship of landlord and tenant between the parties?

6]

Is the defendant liable to make over vacant possession of the ground floor flat (described in schedule �C� to the plaint) to the plaintiff?

7]

Was the agreement terminated?

dated

December

26, 1987

fully

8]

Is the plaintiff entitled to get a decree, as prayed for?

9]

To what relief, if any, is the plaintiff entitled?

Before I proceed further, it should be pointed out that the development agreement dated 26 December 1987 is not in dispute. Since the said agreement is not in dispute and since according to the plaintiff, the defendant was given possession of the flat in question by the plaintiff in terms of the said agreement to enable the defendant to develop the property as agreed and since the defendant has asserted in its written statement that it became a monthly tenant in respect of the flat in question "before signing of the agreement" and as such the defendant has no obligation to vacate the said flat even after the termination of the said agreement way back in the year 1998, 18 July 1998 to be precise, followed by a subsequent demand for possession by the plaintiff in December 1998, namely 18 December 1998, I would consider the said agreement or rather the relevant terms of the said agreement which are material and have a direct bearing upon the above two issues, namely 5 and 6 and the evidence on record "for determining the matters in controversy between" the plaintiff and the defendant.

As I have said above that the agreement itself is not in dispute, the defendant, in fact, has said that the agreement was made between the plaintiff and the defendant for the purpose of developing the premises in question. In the agreement the plaintiff has been described as the absolute owner of the property in question at premises no. 8, Short Street, Calcutta and the defendant, M/s. Air Constructions & Consultants Pvt. Ltd. as the developer.

Relying on the said agreement the plaintiff has said in her plaint that the agreement was that the plaintiff would deliver the entire ground floor less than one room and one bathroom of the property in question to the developer, namely the defendant in part performance of the obligations with effect from 15 September 1987.........and the developer would compensate the plaintiff at Rs.1,500/- as rent and Rs.3,500/- as maintenance charges. It was also agreed that in case of any default of non-performance of the obligation on the part of the defendant, the possession of the ground floor flat would be returned to the owner immediately on demand or the developer would return peaceful vacant possession of the said flat in case the Kolkata Municipal Corporation did not sanction the plan for construction of the building as provided in the said agreement.

Since the two clauses of the said agreement, in my opinion, have the most vital bearing upon the above two issues, Clauses XII (a) and XII (b) of Article 7 of the said agreement are set out below:-

"It has been agreed by and between the parties hereto that the owner will deliver the entire ground floor less one room and bathroom of the said property to the developer in part performance of the obligations with effect from 15 September 1987 and till demand and the developer will compensate the owner at the rate of Rs.1,500/- as a rent and Rs.3,500/- as maintenance charges.

Parties hereto above have also agreed specifically that in case of any default or non-performance of obligations on the part of the developer the possession of ground floor flat will be returned to the owner immediately on demand and/or the developer return peaceful vacant possession of the said flat in case of no sanction being granted by the Calcutta Municipal Corporation.

It is, however, an admitted position that the defendant was given possession of the flat by the plaintiff on 15 September 1987. I use the expression "admitted position" as the date on which the possession of the flat was given to the defendant by the plaintiff is not in dispute and is mentioned in the agreement itself. The defendant, however, contends that the defendant became a monthly tenant of the plaintiff before the said agreement was even signed but the defendant does not, however, dispute the respective amounts payable per month as compensation rent, namely Rs.1,500/-and maintenance charges, namely Rs.3,500/- for such occupation and/or possession of the said flat. Clause XII (a), however, provides that the defendant would compensate the owner at Rs.1,500/- as rent and Rs.3,500/- as maintenance charges.

The stand of the defendant is that it became a monthly tenant under the plaintiff before the signing of the agreement as the defendant was admittedly given possession of the flat in question on 15 September 1987 whereas the agreement was, in fact, signed by the parties on 23 December 1987. A tenancy was, therefore, created by the plaintiff in favour of the defendant in respect of the said flat irrespective of or notwithstanding with the said agreement. In fact, the defendant has said or it has been said on behalf of the defendant that the tenancy was created in favour of the defendant "dehors" the said agreement, but the plaintiff in order to substantiate his tenancy has to fall back on and in reality has solely relied on the said clause XII (a) of Article 7 of the said agreement.

The defendant has also not been able to dispute that it was provided in XII (a) under Article 7 of the said agreement that it was agreed by and between the plaintiff that the plaintiff would deliver the entire ground floor less than one room and bathroom on 15 September 1987 to the defendant for which the defendant would compensate the plaintiff at Rs.1,500/- as rent and Rs.3,500/- as maintenance charges.

Apart from the said clause XII (a) of the agreement there is no evidence as to what rent and maintenance charges were payable per month by the defendant to the plaintiff for the alleged tenancy. Apart from the said clause XII (a) there is also no independent evidence that the defendant was given possession of or allowed to occupy the flat in question on 15 September 1987.

The sole contention of the defendant is, however, that since the plaintiff was given possession of the said flat before the said agreement was, in fact, signed a monthly tenancy should or would automatically be inferred in favour of the defendant though the said agreement itself specifically mentions the date on which the defendant got possession of the flat in question from the defendant, namely 15 September 1987 and though the said agreement or rather the said clause XII (a) thereof is the only document which provides how much were to be paid by the defendant to the plaintiff for occupation of the said flat. The defendant has not even attempted to show as it cannot show that there was any independent agreement for such alleged tenancy in its favour created by the plaintiff, let alone the date of obtaining possession of the said flat as the alleged tenant thereof.

The defendant has also not attempted to show as it cannot show that apart from the said clause under Article 7 of the said agreement there ever was any independent agreement, understanding or arrangement for payment of any alleged rent and/or maintenance charges as there never was or has been any such agreement between the plaintiff and the defendant.

On the contrary, in order to substantiate its case of tenancy in respect of the said flat the defendant has solely relied on the word ''rent'' used in XII (a) of the said agreement. The defendant, however, has not given any importance to the expression used in the said clause XII (a), namely that the defendant would "compensate the owner at the rate of Rs.1,500/- as rent". The word ''compensate'' used in the said clause has been very carefully avoided by the defendant or rather by its learned counsel.

There is no doubt, however, that the cause of action of the plaintiff is practically based on the said agreement which may properly be called development agreement dated 23 December 1987.

The defendant, as I have said above, has in fact relied on the said development agreement for showing that a tenancy was created in its favour by the plaintiff in respect of the said flat as the plaintiff in the said agreement used the expression ''rent'' in clause XII (a) of Article 7 which the defendant had to pay and eventually paid until the plaintiff refused to accept the payments.

The stand of the defendant is very difficult to comprehend. On the one hand, the defendant has tried to suggest that since the defendant was given possession of the said flat before the said agreement was signed, it should be presumed that the plaintiff created a tenancy in favour of the defendant and the development agreement which was signed a little later on 23 December 1987 had nothing to do with the creation of such tenancy.

The defendant on the other hand in order to prove its case of tenancy, as I have said above, has relied on the said agreement or rather clause XII (a) of Article 7 thereof and said that the defendant paid rent and maintenance charges all along for the said flat until the plaintiff refused to accept such payments and the word ''rent'' used in clause XII (a) is enough to prove the case of tenancy as pleaded by the defendant in its written statement.

On a consideration of the facts and the evidence on record for determining the above two issues I, however, find that the plaintiff has relied on the said agreement for proving her case and showed how and why the defendant was given possession of the said flat and how much the defendant had to pay per month for occupying the said flat under the said agreement.

The plaintiff''s case is that since the development agreement failed and the same was formally brought to an end by the plaintiff after about 11 years by the said letter dated 18 July 1998, the defendant should have vacated the flat. However, instead of vacating the flat, the defendant has been in wrongful occupation or possession of the said flat as trespasser since the date of termination of the said agreement. It is, however, on record that the plaintiff, in fact, wrote two letters, namely dated 18 July 1998 and 18 December 1998 and inter alia demanded possession of the said flat from the defendant.

The defendant, as I have said above, also accepted the said termination but did not vacate the flat. The plea of the defendant is that it became a monthly tenant and by the said two letters the tenancy in question was not as it could not be validly terminated. The said agreement itself is an Exhibit and an admitted document and the plaintiff''s witness gave full evidence in support of the case of the plaintiff as made out in the plaint.

However, after considering the case as made out by the plaintiff in her plaint and the evidence in support of her case and in particular the said admitted document, namely the development agreement and the said two letters of termination and demand for possession, namely dated 18 July 1998 and 18 December 1998 as Exhibits - A, J & H respectively, I am of the opinion that the plaintiff has fully proved her case. I am satisfied that the assertions made by the plaintiff in her plaint have been supported by sufficient evidence.

However, as far as the general rule of proof goes, since the defendant in its written statement has asserted the affirmative of the issue or question in dispute relating to the creation of tenancy in its favour, the burden of proof undoubtedly lies on the defendant.

Since, in my opinion, the defendant has the burden of proving that it became a monthly tenant of the plaintiff in respect of the said flat it is for the defendant to adduce evidence sufficient to raise a presumption that what it has asserted in its written statement is true.

In other words, since the defendant has asserted in its written statement that it became a monthly tenant of the plaintiff in respect of the said flat independently, the question arises whether the defendant has adduced sufficient evidence to raise a presumption that what it has asserted is true. If the answer to this is in the affirmative, then naturally the defendant should be held to have successfully shifted the burden of proof upon the plaintiff and then it would be for the plaintiff to rebut such presumption by evidence. Question therefore is, has the defendant been able to prove its case of tenancy as made out in the written statement.

On consideration of the facts of the case and the evidence on record, the defendant, I find, has miserably failed to raise any presumption by evidence that what the defendant has asserted in its written statement regarding the creation of tenancy in its favour is true.

The letters relied on by and on behalf of the defendant that the plaintiff accepted the rent from the defendant through out and even after termination of the agreement in question cannot be said to be sufficient to raise any presumption that a tenancy was created or intended to be created in favour of the defendant by the plaintiff in respect of the said flat and that the said agreement for development of the property had nothing to do with it.

As I have said above, it is the said agreement and the said agreement alone which specifically provides as to when the possession of the flat in question was given to the defendant and what amounts should the defendant pay by way of compensation for occupying the said flat and for how long could the defendant be in occupation or retain the possession of the said flat.

For this purpose a mere reading of the clauses XII (a), XII (b), XII (c) and XII (d) makes the position abundantly clear. The defendant cannot take advantage of only one word used in the said clause, namely "rent" in XII (a) of the said agreement and ignore the provisions made in the said clauses to suit its purpose. If the letters by which the plaintiff or her husband asked for payment of compensatory rent and maintenance charges are read with the said agreement, which I have read more than once, a reasonable man will have no doubt in his mind to appreciate as to what the plaintiff really intended to do in writing those letters. The plaintiff or the plaintiff''s representative, it is clear, merely borrowed the expression used in the said clause of the agreement in demanding and accepting compensatory rents from the defendant for its occupation of the said flat. The acceptance of such payments for one or two months even after the termination of the development agreement did not make the position of the defendant any better.

The defendant in my view has miserably failed to discharge its burden to prove that a monthly tenancy was ever created or that the plaintiff ever intended to create such tenancy in respect of the said flat in favour of the defendant at any point of time by any evidence at all. The letters relied on by the defendant do not make the position any better, on the contrary, it makes the case of the defendant much weaker as the stand of the defendant is or rather the case as made out by the defendant in its written statement regarding monthly tenancy is that it was created before even the agreement was signed. In fact, it was argued on behalf of the defendant "that the defendant became the tenant in respect of the said flat in question prior to the agreement dated December 23, 1987 and dehors the agreement".

I have already said that by mere assertions in its written statement that the tenancy was created before the agreement was signed the defendant could prove nothing and at the trial the defendant has not been able to make its case better by any evidence at all regarding creation of monthly tenancy in its favour by the plaintiff.

Since I am of the opinion that the defendant has not been able to prove its case as it has attempted to make out in its written statement regarding creation of monthly tenancy in its favour by any evidence at all and on the contrary it has relied on the agreement itself to prove that it paid rent by way of compensation and maintenance charges as contained in clause XII (a) under Article 7 of the agreement excluding the other relevant clauses which are intimately connected with the said clause, the further contention made on behalf of the defendant that the plaintiff accepted the cheques from the defendant for payment of Rs.1,500/-and Rs.3,500/- per month, which is provided in the said clause XII (a) of the said agreement under Article 7 of the said agreement, throughout and even after the termination of the said agreement in July 1998 is not good enough to infer a tenancy. The plaintiff admittedly did not accept any payments after demanding possession of the flat by her said second letter dated 18 December 1998.

The plaintiff, indeed, accepted the said payments, namely Rs.1,500/- and Rs.3,500/- as compensation rent and maintenance charges in terms of the said provisions of the agreement as she agreed to do and the defendant agreed to pay for occupying the said flat of the plaintiff. The mere fact that the plaintiff accepted the said payments even after termination of the said agreement for development could not by itself create a monthly tenancy in favour of the defendant by any stretch of imagination as the plaintiff never expressed her intention to create such monthly tenancy in favour of the defendant at any point of time nor the defendant made the said payments treating it as a tenant of the plaintiff and this position is absolutely clear as the defendant till the date of the said agreement, or from the date the defendant came into possession of the said flat till the termination of the agreement, or at any time thereafter, never claimed any tenancy in respect of the said flat when the plaintiff terminated the said agreement by its said first letter dated 6 July 1998 and when the plaintiff again asked the defendant to vacate the said flat and hand over the vacant possession to the plaintiff by her second letter dated 18 December 1998 (namely Exhibits (J) & (M) respectively).

In her first letter of termination dated 6 July 1998 after stating the alleged breaches of the said agreement on the part of the defendant, the plaintiff said "I, therefore, treat the agreement dated 23 December 1987 as terminated and call upon you to vacate forthwith the portion of the ground floor of 8, Short Street, Calcutta occupied by you. This is without prejudice to my rights to claim against you for any other breaches of the said agreement".

In reply to the said letter, the defendant in its letter dated 31 July 1998 did not even whisper about any tenancy in its favour nor the defendant said that it had no liability to vacate the premises as it was the monthly tenant or tenant of the plaintiff in respect of the said flat.

The defendant after stating that the defendant was not in breach of the said agreement or the terms thereof merely said, "that the purported termination sought to be made by you is unreasonable and in violation of the said agreement dated 23 December 1987" and further said at the end that the defendant was "still ready and willing to perform its part of the obligations and duties". The defendant never asserted, as it could not, its right to occupy the flat in question as a monthly tenant or a tenant of the plaintiff as the defendant knew full well that no tenancy was ever created in its favour by the plaintiff. [Exhibit - D].

In reply to the above letter of the defendant the plaintiff again, inter alia, wrote to the defendant "finally, we deny that our termination of the agreement dated 28 December 1987 is purported or unreasonable or in violation of the said agreement and we see no reason to withdraw such termination".

After expiry of about five months from the date of the said first letter of termination dated 6 July 1998, the plaintiff again wrote to the defendant stating that the defendant "failed and/or neglected to vacate the portion of the ground floor of premises no. 8, Short Street, Calcutta occupied by" the defendant and once again asked the defendant to vacate the said flat occupied by the defendant latest by 31 January 1999.

Before the above letter dated 18 December 1998, on 10 August 1998 the plaintiff denied that the termination of the said agreement was "unreasonable or in violation of the said agreement" and as such the plaintiff saw no reason to withdraw such termination.

The defendant, however, did not reply either to this letter or to the above letter dated 18 December 1998 at any point of time far from claiming any tenancy under the plaintiff at all.

Having regard to the facts and the evidence on record, I ask myself, could the defendant establish that its occupation of the flat in question was lawful without the said agreement, the answer to that should be and is absolutely in the negative as the defendant has no other means or evidence to justify its occupation of the flat in question without relying on the said agreement and said agreement alone.

The defendant has not been able to, as it cannot, substantiate its alleged claim of tenancy as the defendant has tried to make out in its written statement by any independent evidence at all.

I have no manner of doubt that the plaintiff allowed the defendant to occupy the said flat to enable the defendant to construct the proposed building as agreed by them for the purpose of developing the property in question. The facts and evidence of this case do not leave any doubt in my mind that the sole intention of the plaintiff to allow the defendant to occupy the said flat was to enable the defendant to develop the property as agreed and nothing more and nothing less than that.

It would be futile in this case to make any attempt to ascertain whether the plaintiff ever intended to create a tenancy in favour of the defendant by allowing the defendant to occupy the said flat on the ground floor of the premises in question. If the development agreement had been a reality then the alleged tenancy would have disappeared because of the building itself had to be demolished for the purpose of making a new construction within the time mentioned in the agreement. The defendant perhaps would not in that event have been in a position to claim any tenancy in the air. The parties to the agreement, namely the plaintiff and the defendant would then have had to discharge its respective obligations and enjoy their respective rights and benefits under the said agreement and the said agreement alone.

Interestingly, however, the defendant in asserting that it became a tenant before the agreement in question was signed, does not rest its case on the agreement at all. But when it comes to the question of proving such tenancy it falls back upon the expression or the word used in the agreement, namely ''rent'' which the defendant agreed to pay for occupying the flat in question under the said agreement. The defendant very carefully, however, has picked up only one word, namely ''rent'' excluding the word ''compensation'' as appears in Clause XII (a) of Article 7 of the said agreement. The defendant is also not willing to read or deal with the other clauses of the said agreement which specifically provide as to when the defendant was to hand over vacant possession of the said flat to the plaintiff in case the agreement fell through.

In other words, what plaintiff has tried to do in his plaint is to plead a case of independent monthly tenancy which had or has nothing to do with the said agreement at all. But, for the purpose of proving that such a monthly tenancy was created, the defendant has relied on the said agreement or rather on a particular clause thereof. The defendant, in fact, paid compensation rent and the maintenance charges that he had to pay for some time until the plaintiff refused to accept any further payments from the defendant after termination of the said agreement.

In a situation like this, it would be useless on my part to even consider whether the plaintiff by the said agreement intended to create a tenancy in favour of the defendant inasmuch as the defendant in its written statement has not asserted or made out such a case that by the agreement in question the plaintiff intended to create a monthly tenancy in its favour.

In my opinion, a mere reading of the relevant clauses of the said agreement, or rather the agreement as a whole leaves no doubt in mind of a reasonable man, or for that matter in the mind of any person with reasonable intelligence that the plaintiff wanted to develop her property as provided in the said agreement and for the purpose of development of the property the plaintiff merely allowed the defendant to occupy the flat in question so that the defendant could develop the property and discharge its obligations as the defendant was obliged to do under the said agreement.

What the plaintiff and the defendant had really intended by the said agreement is evident from the agreement itself. The defendant, however, does not question the validity of the said agreement. The defendant also has not said and does not say that by the said agreement or by the relevant clauses of the said agreement the plaintiff intended to create a monthly tenancy in favour of the defendant. If the plaintiff had said so, I would have read the agreement in question again and again to find out such intention, if there had been any, but the defendant has not and does not say that the plaintiff intended to create a tenancy in respect of the said flat and that is evident from the agreement in question. What the defendant has said and does say, however, is that the monthly tenancy was created by the plaintiff independently before the said agreement was even signed.

In other words, the tenancy in question was an independent tenancy which had nothing to do with the said agreement for developing the property and the defendant, as I have held above, has miserably failed to prove its case of monthly tenancy by any evidence at all.

The following decisions, however, were cited on behalf of the plaintiff to demonstrate that the plaintiff never intended to create any tenancy in favour of the defendant in reply to the alleged case of tenancy as attempted to be made out in the written statement.

Associated Hotels of India Ltd., Delhi Vs. S.B. Sardar Ranjit Singh,

G. Cariappa Vs. Mrs. Leila Sinha Roy,

Puran Singh Sahni Vs. Sundari Bhagwandas Kripalani (Smt) and Others,

Delta International Limited Vs. Shyam Sundar Ganeriwalla and Another,

Satguru Nirman Pvt. Ltd. -V- Narayan Chandra Paul, reported in 2003 (1) CHN.

The view that I have taken in determining the above two issues, I do not think it necessary to deal with the above decisions relied on behalf of the plaintiff in any detail. Suffice it to say that the above decisions lay down the tests of determining the existence or creation of "tenancy" in dispute.

At this stage I cannot, however, resist the temptation of quoting and relying on the observations of Lord Halsbury (the then Lord Chancellor) in Quinn -V- Leathem[1901] A.C. 495. The temptation on my part is difficult to resist as the authority with which such observations were made. His Lordship said "..........there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all". (See 506 of the report).

The above observations of Lord Chancellor are often quoted with approval by the High Courts and the Supreme Court.

Indeed, if I go back as far back as 1987, his Lordship Justice Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 said "the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. (See Lord Halsbury in Quinn -V- Leathem, 1901 AC 495)". (See 18 at pages 1077 & 1078 of the report).

Thus, the above two issues, namely 5 and 6 are respectively answered in the negative and in the affirmative against the defendant and in favour of the plaintiff.

In view of the above determination of the two issues, the second issue is partly answered in the negative, namely against the defendant as the defendant in breach of the said agreement failed to vacate the flat in question even after the termination of the said agreement way back in the month of July 1998, to be precise on 6 July 1998.

The defendant, in my opinion, was liable to vacate the flat in question and obliged to hand over possession of the same to the plaintiff in view of the specific provisions in clause XII (b) under Article 7 of the said agreement. In any event, the defendant had no right to remain in possession of the said flat after the said agreement was terminated by the plaintiff as the occupation or possession of the said flat of the plaintiff at the said premises was solely dependent on the said agreement and said agreement alone and since the same was terminated by the plaintiff, the defendant became liable to vacate the said flat and hand over possession of the same to the plaintiff without any delay at all.

Since I do not think that the plaintiff has made any serious attempt to prove her loss and damages suffered by the plaintiff as alleged in the plaint, I am unable to answer the third issue in favour of the plaintiff.

Having considered the facts and circumstances of the case and the evidence on record the forth issue is answered in the negative and against the defendant.

Since I have already said that even after expiry of about 11 years from the date of the agreement nothing had happened at all and the plaintiff eventually terminated the agreement in the month of July 1999 and the defendant also accepted such termination, the seventh issue is answered in the affirmative and in favour of the plaintiff.

However, since I have held that the plaintiff ought to have vacated the flat in question immediately after the termination of the said agreement and since the defendant most wrongfully and illegally has since retained the possession of the said flat purely as a trespasser, the defendant is liable to compensate the plaintiff for such wrongful occupation of the flat in question.

However, having regard to the pleadings of the plaintiff in paragraphs 15 and 16 of the plaint and since the plaintiff has prayed for an enquiry to prove a larger rate of occupation charges or mesne profits or compensation for wrongful occupation of the said flat for all these years since July 1998, the plaintiff is entitled to the relief on the basis of her pleadings in paragraph 16 of the plaint.

Thus, there will be a decree as claimed in claims (a) and (e) of the plaint. There shall also be a decree for vacant possession of the flat in question.

However, having regard to the facts and circumstances of the case and in particular the most unmeritorious defence of the defendant, the defendant is liable to pay costs of the suit to the plaintiff.

Thus, there will be a decree for costs which I have assessed most moderately even in the facts and circumstances of the present case at Rs.1,50,000/- and the plaintiff will be entitled to the decree for costs over and above the Court fees that the plaintiff had to pay for the institution of the suit.

However, having regard to the provisions of Order 20 Rule 12 of the CPC and the decree passed as claimed in claim (e) of the plaint, there shall be a decree declaring that the plaintiff to be entitled to mesne profits on and from 6 July 1998 until delivery of possession.

In order to make the decree passed in terms of claim (e) of the plaint effective there shall be a preliminary decree appointing Mr. Biswajib Ghosh, Barrister-at-Law as Commissioner for the purpose of conducting the enquiry and ascertaining mesne profits to be awarded to the plaintiff per month for the flat in question.

Upon conclusion of such enquiry the plaintiff, needless to mention, will be entitled to apply in this suit for obtaining a final decree for the amount found due. The Commissioner so appointed herein will be entitled to an initial remuneration of 1000 Gms. and further remuneration to be fixed at the time of confirmation of the report containing the findings of the Commissioner at the enquiry.

The plaintiff shall be entitled in addition to the decree for costs passed herein to all the costs, charges and expenses of the proceedings before the Commissioner, certified for two counsel.

Let the Commissioner''s report be made and published within a period of six months from the date the enquiry is commenced.

However, having regard to the facts of the case and more importantly that the defendant has been in utter wrongful occupation of the said flat since 6 July 1998 the defendant must pay occupation charges to the plaintiff at a higher rate for its occupation of the said flat than the rate the defendant had paid under the said agreement. The defendant should not, in any event, be allowed to occupy the said flat and enjoy the same upon payment of Rs.1,500/- only as the rates of rents or occupation charges of all the properties in the metropolis have gone up substantially over the years. The flat in question being situated in one of the most expensive areas in the metropolis, the defendant henceforth, i.e. from the month of August 2012, shall pay Rs.30,000/- per month for the said flat as occupation charges to the plaintiff until the defendant hands over the vacant possession of the said flat to the plaintiff or until the decree for possession passed herein is satisfied.

The plaintiff, however, will be at liberty to accept the same, namely the enhanced occupation charges per month wholly without prejudice to her right to prove the rate of mesne profits to which she is entitled before the Commissioner at the enquiry in terms of the decree passed in the suit.

All parties, the Commissioner and the department concerned shall, needless to mention, act on the basis of the operative portion of the certified photocopy of this judgment and decree upon the undertaking of the plaintiff''s advocate-on-record to have a decree completed in the usual course of business.

Let the decree be drawn up expeditiously.

The prayer of Mr. Malay Ghosh, learned Counsel appearing on behalf of the defendant for stay of the Judgment and decree is unhesitatingly refused. Let urgent certified photocopy of this Judgment, if applied for, be given expeditiously.