Sri Rajibmoy Sengupta vs Sen Mahasay and Others

Jyotirmay Bhattacharya, J.—This Second Appeal is directed against the judgment and decree dated 5th February, 1997 passed by the learned Additional District Judge, 14th Court at Alipore in Title Appeal No. 250 of 1994 affirming the judgment and decree dated 11th July, 1994 passed by the learned Assistant District judge, 10th Court at Alipore in Title Suit No. 53 of 1992, at the instance of the plaintiff/appellant.

The plaintiff/appellant filed a suit for recovery of khas possession of the suit premises from the defendant/respondent herein on revocation of licence. Several other incidental reliefs were also claimed by the plaintiff/appellant against the said defendant/respondent of the said suit.

The defendant/respondent contested the said suit by filing written statement denying the material allegations made out by the plaintiff in the plaint. The defendant/respondent claimed that the said defendant is a premises tenant under the plaintiff and the said tenancy was created by a registered lease deed dated 31st January, 1969 executed by the parties, for a period of twenty-one year commencing from 31st January, 1969 and ending with 31st December, 1989 with an option given to the defendant to terminate the said lease after completion of first three years of the tenancy by giving at least three months'' prior notice in writing to the plaintiff (landlord). Thus, the defendant denied the claim of the plaintiff to the effect that the defendant is a licensee under the plaintiff in respect of the suit property and its license was duly revoked as alleged by the plaintiff. The defendant claimed that the defendant is still a tenant and its tenancy is governed by the West Bengal Premises Tenancy Act, 1956 and as such, the defendant cannot be evicted from the suit premises without following the due process of law.

The parties adduced their evidence to support their claim in the said suit.

The learned Trial Judge after considering the pleadings as well as the evidence of the parties was ultimately pleased to dismiss the said suit on contest by holding inter alia that the defendant is a premises tenant and its tenancy is governed by the West Bengal Premises Tenancy Act, 1956 and as such, decree for eviction cannot be passed against the defendant in the suit as the plaintiff has failed to prove that the defendant is a licensee under him.

Being aggrieved by and dissatisfied with the aforesaid judgment and decree, the plaintiff/appellant filed an appeal before the learned District Judge at Alipore which was subsequently transferred to the Court of the learned Additional District Judge, 14th Court at Alipore.

The learned First Appellate Court was also pleased to dismiss the said appeal on contest by affirming the findings of the learned Trial Judge.

Hence, the instant Second Appeal has been filed before this Court. While admitting this appeal, the Division Bench of this Hon''ble Court formulated the following substantial questions of law on 30th April, 2002:

(i) For that the Courts below erred in law by not holding that the defendant was a lessee under the transfer of property Act.

ii) For that the Courts below erred in law that the parties are governed under the transfer of property Act and not under the West Bengal Premises Tenancy Act, 1956 in view of the lease deed being exhibit-2.

iii) For that the Courts below erred in law by not holding that notice u/s 13(6) of the West Bengal Premises Tenancy Act need not be given as the West Bengal Premises Tenancy Act, no manner of application in this case.

iv) Whether the learned Judge of the Court below erred in law by not properly appreciating this Court of the application of Section 3 of the West Bengal Premises Tenancy Act, 1956 and totally misconstrued the same or not.

Heard Mr. Chatterjee, learned Advocate, appearing for the appellant. None appears on behalf of the respondent when this appeal was taken up for hearing. Considered the materials-on-record including the judgments and decrees impugned in this appeal.

Let me now consider the merit of the instant appeal in the facts of the instant case, with reference to the aforesaid substantial questions of law. Since the question No. (iv) is the real issue and the other questions are not only dependent upon the fate of question No. (iv) but also are interrelated, let me consider all the aforesaid questions together hereunder.

Though neither party claimed in their pleading that there was a prior lease between the parties but in course of evidence on recall, the plaintiff proved an earlier registered lease deed executed between the parties on 9th June, 1952 by which a tenancy was created by the plaintiff in favour of the defendant for a period of 15 years commencing from 16th June, 1952 to 15th June, 1967 with an option given to the defendant to terminate the said lease at any time after one year from the date of commencement of the lease by serving two months'' notice to the plaintiff. The said document was admitted into evidence on proof and was marked as exhibit-5 in the suit.

Mr. Chatterjee, learned Advocate appearing for the appellant submits that none of the Courts bellow considered the effect of the said lease in the suit and/or in the appeal. Mr. Chatterjee submitted that since the tenancy of the said defendant was created in 1952 before commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 i.e. before 24th August, 1965 and further since, in fact, the said tenancy was being continued by the subsequent lease deed dated 31st January, 1969 being exhibit-2, the incidence of the defendant''s tenancy cannot be governed by Sub-section 2 of Section 3 of the West Bengal Premises Tenancy Act, 1956. Thus, Mr. Chatterjee submitted that since this aspect has not been considered by either of the Courts below, the impugned judgment and decree cannot be sustained.

Mr. Chatterjee further contended that even assuming that the tenancy of the defendant was created by the subsequent lease deed dated 31st January, 1969, still then, since the said lease was created for a period of 21 years and the defendant never exercised his option for termination of the lease in terms of reservation of his right of termination provided in the said lease deed, the said defendant after enjoying the full lease term of 21 years uninterruptedly, cannot allege that simply because of reservation of his right of termination in the lease deed, its possession in the lease-hold property was not secured for an uninterrupted period of 21 years. According to Mr. Chatterjee when admittedly such option of termination was not exercised by the lessee and the lessee fully enjoyed the period of 21 years, the lessee cannot claim that its tenancy is protected under the West Bengal Premises Tenancy Act, 1956 on the question of suggested precariousness of the tenure of its tenancy due to reservation of its unfettered right of termination of the lease during the period of 21 years.

Thus, according to him that the defendant''s tenancy is not governed by the provisions of the West Bengal Premises Tenancy Act, 1956 and as such, both the Courts below erred in refusing to pass the decree for eviction in favour of the plaintiff by giving a wrong interpretation to the lease deed as well as by misconstruing the provision of Section 3(2) of the said Act. In support of such submission Mr. Chatterjee relied upon a decision of the Hon''ble Supreme Court in the case of Savita Dey Vs. Nageswar Majumdar and Another, .

Let me now consider as to how far the said submission of Mr. Chatterjee can be accepted in the facts of the instant case even by ignoring the settled principle of law that no amount of evidence which is beyond the pleadings of the parties can be looked into by the Court. If the said settled principle of law is applied in the instant case, then no doubt the earlier lease deed of 1952 cannot be taken into consideration at all as the existence of the said lease deed and/or the effect thereof was not pleaded by any of the parties in the instant suit. As such, this Court is of the view that the learned Court below did not commit any illegality and/or material irregularity in not taking into consideration the said lease deed at the time of hearing of the suit and/or the appeal.

But since Mr. Chatterjee repeatedly invited this Court to consider the effect of the said lease deed being exhibit-5 as the same was admitted into evidence without any objection from the other side, this Court feels that some amount of consideration is necessary for determining the nature and/or the incidence of tenancy of the defendant in the suit property.

On perusal of the earlier lease deed dated 9th June, 1952, this Court finds that the said lease was created for a term of 15 years commencing from 16th June, 1952 and ending with 15th June, 1957. The said lease also contained a clause which provides that the lessee shall have the option to terminate the lease at any time after one year from date by serving two months'' notice to the lessor. There is no evidence on record as to whether the lessee enjoyed the full term of the said lease upto 15th June, 1967 or not. There is no evidence on record as to whether the lessee terminated the said lease by exercising his option of termination as per the said lease deed, before expiry of the lease period or not. Even assuming that the lessee enjoyed the full term of the said lease still then, this Court, in the absence of any evidence in this regard, cannot come to any finding that the lessee continued his stay by holding over even after expiry of the lease period. If this lease is taken into consideration along with the subsequent lease deed executed between the parties on 31st January, 1969 then this Court finds that there was a gap of about one and half year in between the said two lease periods as the earlier lease ended on 15th June, 1967 and the subsequent lease commenced from 1st January, 1969. Nobody knows what happened during the said gap period. The defendant might have vacated the suit premises on the expiry of the earlier lease period i.e. on 15th June, 1967 and accepted a new lease with effect from 1st January, 1969. If that be so, then this Court cannot hold that there was continuity in the lease.

Most interestingly this Court finds that even the subsequent lease was executed on 31st January, 1969 by giving retrospective effect from 1st January, 1969. Had it been really a continuation of the earlier lease then the effect of the subsequent lease could have been given from 16th July, 1967. But that was not done in the instant case.

Accordingly, this Court cannot agree with Mr. Chatterjee that the present tenancy of the defendant was, in fact, a continuation of its earlier tenancy created by the lease of 1952 and further this Court cannot accept his submission that the incidence of such tenancy cannot be determined by applying the provision contained in Sub-section 2 of Section 3 of the West Bengal Premises Tenancy Act, 1956.

This Court, thus, holds that the present tenancy of the defendant was created on the basis of the lease deed dated 31st January, 1969 Exhibit-2 for a period of 21 years commencing from 1st January, 1969 ending with 31st December, 1989. Since the said lease deed contained a sooner determination clause which provides that the lessee will have the option to terminate the lease after completion of first three years of the tenancy by giving three months'' previous notice in writing in this behalf to the lessor, this Court holds that the incidence of the defendant''s tenancy was correctly determined by the Courts below by applying the provision of Section 3(2) of the said Act as the said tenancy for a period of 21 years was created after the commencement of the West Bengal Premises Tenancy (Amendment Ordinance) Act, 1956 and the said lease was terminable at the option of the lessee in the manner as aforesaid.

On consideration of the decision of the Hon''ble Supreme Court cited by Mr. Chatterjee as mentioned above, this Court holds that the principles laid down therein has no application in the facts of the instant case as there is no identity of facts between the said case and the case which is now under consideration before this Court. On perusal of the said decision, this Court finds that in paragraph 8 of the said decision the Hon''ble Supreme Court categorically recorded that in the lease in hand, neither the landlord nor the tenant had reserved to himself the unfettered right of termination of the lease during the period of 21 years but in the present case such right of earlier determination of the lease at the option of the lessee was reserved in the lease deed itself. No matter whether such right was exercised by the lessee or not, this Court cannot hold that there was no precariousness of the tenure of the said tenancy and the tenancy is not governed under the provision of the said Act. Accordingly, this Court holds that the reliefs which the plaintiff claimed in the said suit was rightly rejected by the Courts below, as the plaintiff has failed to prove that the defendant was a licensee under him.

Before concluding, this Court wants to keep it on record that even assuming that the plaintiff has succeeded in proving that the defendant''s tenancy is not governed by the West Bengal Premises Tenancy Act, 1956, still then, he cannot get any decree for eviction against him in this suit as it is framed which is essentially a suit for eviction of a licensee, as under no circumstances the defendant can be regarded as a licensee under the plaintiff.

In the aforesaid facts and circumstances, this Court holds that there is no merit in the aforesaid substantial questions formulated in the Second Appeal. The appeal, thus, stands dismissed ex parte.

The judgments and decrees of both the Courts below are thus affirmed.

Let the lower Court records be sent down to the Court below immediately.

Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.