Sova Rani Seal vs Dilip Kumar Samanta & Anr

Bibek Chaudhuri, J

The judgment and decree dated 17th May, 2001 passed in Title Appeal No.138 of 1998 by the learned Additional District Judge, 2nd Court at

Howrah affirming the judgment and decree dated 29th June, 1998 passed in Title Suit No.85 of 1993 by the learned Civil Judge (Junior Division), 1st

Court at Howrah is assailed in the instant appeal by the defendants of the original suit.

The respondents as plaintiffs instituted Title Suit No.85 of 1993 praying for eviction of the defendant/appellant and mesne profits alleging, inter alia,

that the appellant was a tenant governed under the Transfer of Property Act in respect of a suit shop room situated at Shostitala, Sanpuipara within

P.S Bali in the district of Howrah under one Smt. Sitala Patra and others. The plaintiffs/respondents became the owners of the suit property by a deed

of sale dated 13th August, 1986 and became the owners of the property in suit including the suit shop room. The defendant was inducted as a monthly

tenant in respect of the suit shop room at a rental of Rs.80/- according to the Bengali calendar month. It is further stated by the plaintiffs that the

defendants were habitual defaulters in payment of rent. The plaintiffs reasonably require the suit shop room for their business and also to make pucca

construction thereon which will augment the plaintiff’s income. Therefore, the plaintiffs sent a notice of ejectment dated 17th May, 1993 under

registered post with acknowledgement due. The defendant received the said notice on 24th May, 1993 by putting her signature on the postal AD card.

By the said notice the tenancy of the defendant was terminated on the expiry of the last day of the month of Jaistha 1400 BS and she was requested

to deliver vacant and peaceful possession of the suit property with the expiry of the last day of Jaista 1400 BS. In spite of receipt of the said notice,

the defendant failed and neglected to vacate the suit shop room. Therefore, the plaintiffs filed the said suit.

The defendants contested the said suit by filing written statement wherein she denied entire allegation made out against her by the plaintiffs.

Specific case of the defendant is that she and her son Pradip Kr. Sil were jointly inducted by one Usha Rani Samanta in respect of the suit shop room.

Usha Rani Samanta was the landlady of the said joint tenants, viz, the defendant and her son. She used to receive rent from both the defendant and

her son. However the suit was filed without impleading Pradip Kumar Sil, his tenancy was also not determined by an ejectment notice. Therefore, the

suit is bad for defect of parties. It is further pleaded by the defendants/appellants that initially she and her son was inducted in respect of the suit shop

room at a monthly rental of Rs.40/-. Subsequently, it was gradually enhanced to Rs.80/-, Usha Rani Samanta used to collect rent through her agent.

Sometimes in the year 1989 Usha Rani started to issue rent receipt only in the name of the defendant. The defendants raised objection at that time

Usha Rani assured that the defendant and her son Pradip Kumar Sil were joint tenants and their status as joint tenants would not be jeopardized

despite granting rent receipt in the name of Sobha Rani alone. The defendant denied existence of any relationship of landlord and tenant between the

plaintiffs and her. The defendant also challenged the legality, validity and sufficiency of the ejectment notice. It was contended that the notice was not

served to her in accordance with the provision of Section 106 of the Transfer of Property Act. It is contended that no notice was ever tendered to the

defendant at her residence and accordingly the notice is illegal and invalid.

The learned trial judge framed as many as eight issues on the basis of the pleadings of the parties. The parties led evidence and on the basis of

evidence on record the learned trial judge decreed the suit on contest.

Against the said judgment and decree passed in Title Suit No. 85 of 1993 the defendant/appellant has preferred Title Appeal No.138 of 1998 before

the learned Additional District Judge, 2nd Court at Howrah. In appeal the judgment and decree passed by the learned trial judge in Title Suit No. 85 of

1993 is affirmed. The said judgment and decree passed by the learned First Court of Appeal is under challenge in the instant second appeal. It is found

from the order dated 5th October, 2001 passed by the Division Bench of this Court that the appeal was admitted for hearing on substantial question of

law formulated in ground No.VIII of the memorandum of appeal.

Ground No.VIII of the memorandum of appeal reads as under:-“VIII. For that, even assuming though not admitted notice under Section 106 of

the Transfer of Property Act was served upon the defendant/appellant, still then both the courts ought to have held that the plaintiff/respondent by

accepting rent amicably from the defendant/appellant even after service of said notice, voluntarily waives the said notice and truly the said suit based

on such wave notice ought to have been dismissed by both the courts below.â€​

Specific case of the appellant has already been recorded hereinabove. However in order to adjudicate the substantial question of law formulated by

the Division Bench of this Court the case of the appellant narrated in paragraph-18 of the written statement is summarized below:-

The plaintiff is not the landlord of the defendant and there was/is no relationship existed at any material point of time with the plaintiff. The defendant

and his son, Pradip Sil were jointly inducted by Usha Rani Samanta and there exists landlord tenant relationship between the said Usha Rani Samanta

and them. The defendant alone is not the tenant in respect of the suit shop room. Usha Rani Samanta used to receive rent and ground rent receipt

sometimes in favour of defendant and sometimes in favour of her son Pradip Sil. Though the defendant raised objection against such issuance of rent

receipt but Usha Rani assured them that as they are joint tenants no problem would occur while issuing rent receipt in the name of either of the joint

tenants. Since 1989 the rent was collected by an agent of the said landlord Usha Rani Samanta and he started issuing rent receipt in the name of the

defendant alone. However Pradip Sil never surrendered his tenancy in favour of Usha Rani thus the suit is bad for the defect of parties. It is further

stated by the defendant that the husband of the Usha Rani Samanta was the original landlord in respect of the suit shop room. The suit shop room was

taken on rent by both Sobha Rani and Pradip Sil since no notice was served upon Pradip, the suit is not maintainable. Moreover, the ejectment notice

was never tendered to the defendant at her residence and mandatory condition of Section 106 of Transfer of Property Act was not followed by the

plaintiffs. So, the suit is bad for defect of parties, insufficient notice and non-termination of tenancy of Pradip Sil in respect of the suit shop room.

Thus, it is absolutely clear that though the instant appeal is admitted on the ground of waiver of notice under Section 113 of the Transfer of Property

Act, no pleading was made by the defendant in the written statement. However during trial of the case, the learned Advocate for the defendant took a

plea that the counterfoil of the rent receipts (Exhibit-A58) shows that the landlord accepted rent up to the month of Chaitra on 7th April, 1993. It was

contended by the defendant that 1993 correspondence 1400 BS. However, the learned trial court correctly held that 7th April, 1993 correspondence

Chaitra 13, 1999 BS and not Chaitra 1400 BS. The notice under Section 106 of the Transfer of Property Act was sent to the defendant on t7h May,

1993 directing her to quit and vacate the suit shop room immediately with the expiry of the last day of the month of Jaistha 1400 BS.

Thus on careful perusal of the entire evidence on record as well as the judgment passed by the trial court and the First Appellate Court it is

ascertained that the defendant never pleaded a ground that the landlord had accepted rent after service of notice to quit and by accepting the rent for

the period subsequent to the period of termination of tenancy, the landlord had waived the notice to quit treating the lease in favour of the defendant as

subsisting.

Mr. Aniruddha Chatterjee, learned Advocate for the appellant has assailed the judgment for affirmation passed by the First Appellate Court on the

ground that the suit is bad for defect of parties. In respect of his contention he refers to the relevant portion of the cross examination of PW1, Dilip

Samanta where he admitted that the suit property originally belonged to Nagendra, Bankubehari and Gobardhan Samanta. Usha Rani Samanta being

the original landlord of the defendant was one the owners of co-sharers of the suit property along with Bankubehari, Nagendra and Gobardhan, both

Nagendra and Gobardhan had expired. On the date of filing of the suit Nagendra and Gobardhan had expired leaving behind certain heirs. It is

contended by Mr. Chatterjee that since Usha Rani Samanta, Bankubehari, Nagendra and Gobradhan were co-sharers in respect of the suit property,

they are required to be joined as plaintiffs in the suit. One of the three landlords can maintain a suit, if two others authorize the plaintiff to file the suit

for eviction on behalf of the co-sharer landlords. If two of the landlords were not willing to file any suit for eviction against the lessee, one of the co-

sharer landlords cannot maintain a suit for eviction on the ground of forfeiture when tenancy is one and individual. In support of his contention, Mr.

Chatterjee refers to a decision of the Division Bench of this Court in the case of Sanat Kumar Mallick vs. Octavious Tea & Industries Ltd. & Ors.

reported in (2006) 2 CHN 280 (Cal). On the same point Mr. Chatterjee also refers to another decision of the Division Bench of this Court in the case

of Jaharlal Saha & Ors. vs. Pradip Saha & Ors. reported in (2006) 1 CHN 513.

The above mentioned reported decisions are clearly distinguishable under the facts and circumstances of the case. In this case the defendants

specifically pleaded that Usha Rani Samanta was the inducting landlord of the defendant. In view of such circumstances, except Usha Rani no other

persons claim to be the co-sharer landlords of the defendant. The present plaintiffs got the suit property from Usha Rani. Therefore, they are entitled

to file the instant suit for eviction against the defendant. Though another ground canvassed by Mr. Chatterjee to the effect that the right of tenancy of

Pradip Sil was not determined by an ejectment notice under Section 106 of the Transfer of Property Act, both the courts below held the ejectment

notice proper, valid and sufficient. Both the courts below further held that the defendant was alone the tenant/lessee in respect of the suit shop room.

I am conscious to record that this Court is not bound to adjudicate this issue raised by the learned Counsel for the appellant as this question was

not formulated as a substantial question of law. At the time of hearing of this appeal the defendant/appellant did not pray for formulating additional

substantial questions of law invoking the provision of Sub-section (5) of Section 100 of the Code of Civil Procedure.

However, when this question is raised by Mr. Chatterjee I like to record that Pradip Sil who claimed himself as one of the joint tenant in respect of

the suit property was aged about 30 years in the month of May, 1998 when he deposed in the suit. The suit was filed on 23rd June, 1993. Thus, on the

date of filing of the suit he was aged about 25 years. From the plaint it is ascertained that the plaintiffs purchased the suit property by a registered

deed of sale on 13th August, 1986. Thus, at the time of purchase of the suit property by the plaintiffs, the said Pradip Sil was approximately 18 years

of age. It is the case of the defendant that she and Pradip Sil were inducted as joint tenants by Usha Rani Samanta. Though the year of induction has

not been stated anywhere in the pleading however it can easily be presumed that the defendant was inducted as a tenant in respect of the suit shop

room prior to 1986. At that time the son of the defendant, namely Pradip Sil was obviously a minor. It is needless to say that tenancy is a creature of

contract. A contract of tenancy with the minor is void. Viewing the issue from this angle it can safely be held that there cannot be any joint tenancy in

favour of both the defendant and Pradip Sil. The defendant has filed 58 numbers of rent receipts (Exhibit-A series). Out of the said 58 rent receipts

only 10 rent receipts stood in the name of Pradip Sil. It is needless to say that tenancy is a creature of contract and existence of few rent receipts in

the name of a person who is not a tenant does not create any joint tenancy right in favour of the son of the appellant.

For the reasons recorded above, I do not find any substantial question of law involved in the instant appeal.

Accordingly the appeal is dismissed on contest, without cost.

The judgment and decree passed in Title Appeal No.138 of 1998 by the learned Additional District Judge, 2nd Court at Howrah affirming the

judgment and decree dated 29th June, 1998 passed in Title Suit No.85 of 1993 by the learned Civil Judge (Junior Division), 1st Court, Howrah is

affirmed.

The defendant No.1 is directed to quit, vacate and deliver peaceful possession of the suit property within 60 days from the date of the receipt of

the judgment by the trial court, failing which the respondents are at liberty to recover possession of the suit shop room by executing a decree passed

by the learned trial court.

Lower court record be sent to the court below immediately along with a copy of this judgment.