Subhas Hazra & Ors vs Malay Gayen & Anr

In a suit for eviction, the plaintiffs have taken out an application for summary judgment under Chapter 13A of the Original Side Rules of the High Court.

The facts in brief are:-

One Ranu Gayen was a tenant under the plaintiff. Ranu Gayen died on 4th April, 2010. The defendant nos. 1 and 2 are the son and daughter of Ranu Gayen. The tenancy was for non residential purpose. Ranu Gayen during her lifetime used to carry on a business under the name and style of Northern Fashion House. The defendant nos.1 and 2 are carrying on the said business from the said premises. Prior to the filing of the instant suit, an ejectment suit was filed by the plaintiff before the Learned 3rd Judge, Small Causes Court at Calcutta being Ejectment Suit No.546 of 2005. Upon death of the original tenant, the plaintiffs filed an application for substitution of the legal heirs and representative in the said proceeding. However, subsequently the said suit was dismissed for non-prosecution. Thereafter, the present suit has been filed by the plaintiffs against the legal heirs of Ranu Gayen for eviction on the ground that the period of five years had expired from the time of her death on 4th March, 2015 and in view of the present definition of 'tenant' under Section 2(g) of the West Bengal Premises Tenancy Act, the defendants are not entitled to any protection.

This application is opposed on behalf of the defendants on the ground that the defendants are not liable to be evicted on the ground of expiry of a period of five years as the defendants are not dependent on the original tenant nor they were ordinarily living with the tenant up to the date of her death. The status of the defendants at the highest would be of a trespasser. Chapter XIIIA(1B) can be invoked only if a suit is filed for recovery of immovable property by a landlord against a tenant. The said proviso does not apply to a suit for eviction of a trespasser.

Mr. Jishnu Chowdhury, the learned Counsel appearing on behalf of the plaintiffs has submitted that it has been settled by a catena of decisions including the decision in the case of 'Prabir Kumar Jalan versus Laxmi Narayan Jalan' reported at 2012(2) CHN 56 and an unreported decision dated 28th March, 2017 in GA No.1689 of 2015 with CS No.38 of 2015 (Maganmal Sethia versus Malcom Munsif) that the defendants have inherited the tenancy from the predecessor as tenant and had the right to continue their possession in the said tenancy as tenants for a period of five years after the death of the original tenant and having regard to the fact that the said defendants are admittedly the legal heirs of the original tenant and continue their possession on the strength of such status as legal heirs, they do not have any right of defence in this proceeding and/or are liable to be evicted in this proceeding. Mr. Chowdhury has referred to Chapter 13(1B) to show that apart from the tenant any person claiming under the tenant can also be proceeded with for recovery of immovable property under Chapter 13A of the Original Side Rules.

Mr. Samit Talukdar, learned senior counsel appearing on behalf of the respondents has submitted that in view of the admitted position that the defendants are not dependant on the original tenant, Section 2(g) of the West Bengal Premises Tenancy Act, 1997 would not apply to the said respondents. The plaintiffs may treat the respondents as trespassers and continue its suit for eviction of the respondent as trespassers but not in an application under Chapter XIIIA of the Original Side Rules.

In the plaint the petitioner has categorically stated that the respondents are the legal heirs of the original defendant. The plaintiffs have also categorically stated that the defendants, after the death of the original plaintiff, continued to remain in occupation of the premises illegally and wrongfully and the said defendants were never accepted as tenants in respect of the suit premises either by accepting rent or occupation charges or otherwise. The plaintiffs have also categorically stated that the defendants have independent income and were not dependent on Ranu Gayen (deceased). The contention of the plaintiffs is that the defendants cannot take the benefit of Section 2(g) of the West Bengal Premises Tenancy Act, 1997 for a period of five years as they have independent income and were not dependent on Ranu Gayen. Even if it is contended and held that the said defendants are legal heirs of the said deceased upon expiry of the period of five years the said defendants have no right to occupy and continue to remain in possession of the premises in question.

There is a complete departure from the 1956 Act in the present statute amongst others, with regard to the definition of a tenant. The legal heirs of a tenant has no unfettered right now to continue to remain in possession as such legal heirs for a period beyond five years subject to fulfilment of the conditions that at the time of death of the tenant or from the date of coming into force of the Act whichever is latter, the spouse, son, daughter, parent of the original tenant and the widow of his pre-deceased son were originally living with the tenant upto the date of death of the tenant as member of his family and were dependent on him and who did not own or occupy any residential premises will not be liable for eviction for the aforesaid period of five years. To the same effect the right of legal heirs of the original tenant is protected in respect of the premises let out for non-residential purposes. If the defendants accept the plea that they have independent income and were not dependent on the original tenant then their right to claim tenancy as a legal heir of the tenant immediately comes to an end on the death of the original tenant and they are liable to be evicted soon thereafter without any protection of five years unless other defences are available to them, namely, holding over or fresh tenancy as of like nature. The defendants are claiming through the original tenant. They are undisputedly the legal heirs of the original tenant. They are claiming their right to occupation through the original tenant. On such consideration, in my view, the defendants have no defence to the claim of the plaintiff.

Under such circumstances, there shall be a decree in terms of prayer (a) of the Master's summons. The other claims are relegated to suit. The department shall draw up the decree as expeditiously as possible.

GA No.1435 of 2018 accordingly stands disposed of.

The defendants have prayed for stay of operation of the order. The order shall remain stayed for a period of two weeks from date.