Sri Ram Chandra Shaw vs Sri Ramji Roy

Jyotirmay Bhattacharya, J.—This Second Appeal is directed against the judgment of reversal passed by the learned Assistant District Judge, Sealdah on 26th May, 1997 in Title Appeal No. 101 of 1996 reversing the judgment and decree dated 29th June, 1996 passed by the learned 1st Court of Munsif at Sealdah in Title Suit No. 407 of 1988 at the instance of the plaintiff/appellant.

The plaintiff filed a suit for eviction of the defendant from the suit premises on revocation of his licence orally. Since the defendant did not vacate the suit premises even after revocation of his licence, the plaintiff/appellant filed the instant suit for recovery of possession of the suit premises from the defendant. Various others incidental reliefs were also claimed in the said suit.

It was alleged by the plaintiff in the said suit that the plaintiff is a monthly tenant in respect of three rooms at premises No. 11/1, Raja Dinendra Street under his landlord Ashok Kr. Dutta. The defendant who was a milk supplier and was supplying milk to the plaintiff for a long time requested the plaintiff to allow him to stay in one room within the plaintiff''s tenancy as his licensee for a temporary period. On such request being made by the defendant, the plaintiff permitted the defendant to stay in one room within his tenancy as his licensee for a limited period but since even after revocation of his licence the defendant refused to vacate the room in his occupation, the defendant became a trespasser therein. Hence, the instant suit was filed for his eviction.

The defendant contested the said suit by filing written statement denying the allegations made out by the plaintiff in the said plaint. The defendant denied the grant of licence by the plaintiff in his favour in respect of the suit room. On the contrary, the defendant claimed that the defendant was initially inducted as a tenant in respect of the suit premises by the erstwhile owner thereof at a rental of Rs. 45/- per month and such tenancy was created by Smt. Sumati Sarkar at least 30 years back. It was further claimed by him that since relationship between the said Sumati Sarkar and the defendant was very cordial, Sumati did not issue any rent receipt to the defendant. It was further stated therein that in 1987 he was informed by one Ashok Dutta that he purchased the suit property from Sumati Sarkar and as per his demand, the defendant started paying rent to the said transferee landlord since then, but no receipt was granted to him even though he was assured that rent receipt would be given to him subsequently. The defendant further claimed that since rent receipt was not granted by the said Ashok Kr. Dutta, he started depositing rent in the office of the rent controller. The defendant, thus, prayed for dismissal of the suit on the aforesaid pleadings.

Both the parties adduced evidence in support of their respective claims as mentioned above.

Neither party proved any documentary evidence in support of their respective claims with regard to the nature of possession of the defendant in the suit premises. The defendant, however, proved various documents to show that he received those documents by post in the suit premises even before the commencement of the alleged licence of the defendant. The defendant also produced one application u/s 144(2) of the Criminal Procedure Code to show that the plaintiff complained in the said petition that the defendant forcibly entered in the said suit in 1988 though in the plaint he stated that the licence was created in favour of the defendant by the plaintiff in July, 1987.

The learned Trial Judge, after considering the pleadings of the respective parties as well as their evidence; both oral and documentary, came to the conclusion that the defendant was inducted as a licensee by the plaintiff in the suit room and the said licence was duly revoked. The learned Trial Judge further held that since the defendant did not vacate the suit premises even after revocation of the said licence, the plaintiff is entitled to a decree for eviction. Hence, an eviction decree was passed against the defendant.

While coming to the said conclusion the learned Trial Judge held that since the defendant has claimed his tenancy right under Sumati Sarkar the erstwhile owner of the said premises and thereafter under the present owner namely Ashoke Dutta since the time of his purchase of the suit premises in 1987, such claim should have been proved by the defendant by production of either any document of tenancy or any rent receipt granted by his landlord in his favour. The learned Trial Judge further held that even assuming that the landlord refused to grant any rent receipt still then, he had his remedies, in such circumstances u/s 25 of the West Bengal Premises Tenancy Act, 1956. The learned Trial Judge thus held that in the absence of any rent receipt either granted by the landlord or by the Rent Controller as per Section 25 of the said Act, the defendant''s claim for his tenancy cannot be held to have been proved. The learned Trial Judge further held that the money order coupon which was produced by the defendant to show that he was in possession of the suit room even prior to the date of his alleged induction in the suit room as licensee by the plaintiff, is addressed to the plaintiff at a different address. The said money order coupon shows that the said receipt was addressed to the defendant at premises No. 11, Raja Dinendra Street which is a different premises than that of the suit premises which is numbered as premises No. 11/1, Raja Dinendra Street. The learned Trial Judge, thus, disbelieved the defendant''s claim that he was there in the suit room as a tenant, since even prior to the date of his alleged induction in the suit room as licensee by the plaintiff.

The defendant was aggrieved by the said judgment and decree. As such, he preferred an appeal before the learned First Appellate Court. The learned First Appellate Court, however, was pleased to allow the said appeal by setting aside the judgment and decree by the learned Trial Judge. The learned First Appellate Court was pleased to reverse the finding of the learned Trial Judge by relying upon several documents which were received by the defendant in premises No. 11, Raja Dinendra Street, Kolkata by post even prior to the date of his alleged induction as licensee therein. The learned First Appellate Court also placed strong reliance on the petition u/s 144(2) of the Criminal Procedure Code for coming to the conclusion that the defendant was in the suit room even prior to the date of his alleged induction in the suit premises as licensee therein.

The plaintiff/appellant is aggrieved by the said judgment and decree by the learned First Appellate Court. Hence, the instant appeal has been filed at the instance of he plaintiff/appellant herein.

This Second Appeal was admitted for hearing by the Division Bench of this Hon''ble Court under the provision of Order 41 Rule 11 of the CPC and the following substantial questions of law were formulated by the Division Bench of this Hon''ble Court for hearing of this instant appeal:

i) For that the learned Court of Appeal below erred in law in not applying his mind to the settled principles of law and proper legal tests in determining the questions involved in the suit/appeal and thereby erroneously reversed the judgment and decree passed by the learned Munsif and thereby caused serious miscarriage of justice.

ii) For that upon the facts found and admitted in the case the learned Lower Court of Appeal erred in law in holding that the defendant was in possession of the suit property since 1976 on the basis of some documents which related to the number of separate premises.

iii) For that the cogent findings of the Trial Court in favour of the plaintiff on the one hand and against the defendant on the other having not been reversed by the Court of appeal below, it erred in law in holding that since the learned Munsif failed to consider the defendant''s documents Exhibits. ''Gha'' ''Cha'' ''Chha'', ''Cha'' ''Chha'', ''Chha-I'' ''Ja-I'' establishing his case that he was in the suit property since 1976 and not from July, 1987 the learned District Judge, Sealdah could not concur with the findings of the learned Munsif and as such, finding alone he straightway set aside the judgment and decree in the suit.

iv) For that in absence of any finding that the status of the defendant in respect of the suit room was either as an owner or tenant, the Court of appeal below erred in law in dismissing the plaintiff''s case that he had permitted the defendant to use the said room as licensee under him since July, 1987.

v) For that the learned Court of appeal below has failed to appreciate the well- established principles that to ascertain whether a lease or license has been created, the substance of the matter has to be looked into. If the defendant claims to be a tenant, he has to discharge initial ones by proving that the intention of the parties was to create a tenancy and the most important incident in the tenancy is the payment of rent.

Let me now consider the merit of this appeal in the context of the aforesaid substantial questions of law.

Heard Mr. Rakshit, learned Advocate, appearing for the petitioner. Considered the materials-on-record and the judgments of both the Courts below. None appears on behalf of the respondent when the instant appeal was taken up for hearing.

Here is the case where neither party could prove any documentary evidence to establish their rival claims with regard to the nature of occupation of the defendant in the suit room. Thus, there is no documentary evidence from where the Court can determine the nature of occupation of the plaintiff in the suit room. Admittedly, the defendant has not produced either any document of tenancy or any rent receipt to show that he is a tenant in the suit premises presently under Ashoke Dutta and previously under his transferor namely Sumati Sarkar being the original owner of the said premises. The defendant claimed that no rent receipt was granted by Sumati Sarkar. The defendant further claimed that though the transferee landlord namely Ashoke Dutta accepted the rent and assured him for grant of receipt subsequently but ultimately no receipt was granted by him in favour of the defendant. Even thereafter the defendant did not take recourse to the provision of Section 25 of the West Bengal Premises Tenancy Act for grant of rent receipt by the Rent Controller in his favour. The challans for deposit of rent in favour of the landlord without proper tender by the tenant and/or in the absence of any proof regarding refusal of its acceptance by the landlord, cannot be relied upon as an evidence of tenancy of the defendant. Here, there is no evidence to show that such rent was deposited in the office of the Rent Controller by following the provision of Section 21 of the West Bengal Premises Tenancy Act. Even the landlord was not summoned by the defendant to support his defence. This shows that the defendant has failed to prove his claim for tenancy in the suit room by any direct credible and reliable evidence. The learned First Appellate Court, however, believed the claim of the defendant about his tenancy right in the suit premises by relying upon various documents which the defendant allegedly received in the suit premises even prior to the date of his alleged induction by the plaintiff as licensee therein. On perusal of the said documents, this Court find that those documents were addressed to the defendant at premises No. 11, Raja Dinendra Street which is not the suit premises. The suit premises is numbered as 11/1, Raja Dinendra Street. Though the defendant claimed that the suit premises which was originally numbered as 11, Raja Dinendra Street was subsequently numbered as 11/1, Raja Dinendra Street, but no documentary evidence was produced by the defendant to show that the suit premises was originally numbered as No. 11, Raja Dinendra Street and subsequently was renumbered as 11/1, Raja Dinendra Street.

Even assuming that those documents were received by the defendant at the suit premises even prior to his alleged induction as licensee therein by plaintiff but, still then, those documents could at best be regarded as document of his possession but the character and/or nature of his possession in the suit room cannot be determined from those documents. As such, the learned First Appellate Court, in my view, was not justified in coming to his conclusion that the defendant is a tenant in the said premises by relying upon those documents.

The learned First Appellate Court also relied upon the petition u/s 144(2) of the Criminal Procedure Court filed by the plaintiff for coming to the conclusion that the plaintiff admitted in the said document that the defendant trespassed in the suit premises in 1988 though he claimed in the plaint that the defendant was inducted as licensee in the suit room in July, 1987. Here also the learned Appellate Court committed a mistake as this Court finds that the said petition u/s 144(2) Criminal Procedure Code was filed against one Arjun Roy alleging that the said Arjun Roy forcibly entered into one room in the said premises. Arjun Roy is not the defendant. There is nothing on record to show that Arjun Roy trespassed in the room which is presently in occupation of the defendant. As such, this Court holds that the learned First Appellate Court ought not to have placed any reliance upon the said document for coming to the conclusion that the defendant remained in the suit premises as tenant thereof even prior to the date of his alleged induction as licensee by the plaintiff.

This Court, thus, holds that the judgment and decree of the learned First Appellate Court suffers from perversity. Accordingly, the judgment and decree passed by the learned First Appellate Court cannot be sustained.

The judgment and decree of the learned First Appellate Court, thus, stands set aside. The judgment and decree of the learned Trial Judge is, thus, restored. This Second Appeal, thus, stands allowed.

The defendant/respondent is, thus, given two months'' time for giving peaceful vacant possession of the suit premises to the plaintiff/appellant herein and in default of compliance of this order, the plaintiff will be at liberty to recover khas possession of the suit premises by evicting the defendant/respondent therefrom by executing the decree in accordance with law.

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.