Sushil Kumar Chatterjee vs Jayanta Chatterjee

The appeal against the decree is passed in eviction suit being Title Suit No. 805 of 2017 in favour of the defendant. The suit filed by the plaintiff for eviction of the defendant was dismissed on the ground that the plaintiff was unable to prove that the defendant, at the time of death of the original defendant, was not dependent on the original defendant.

Amar Nath Chatterjee, since deceased, was the original tenant.

He died on 9th April, 2016 leaving behind his wife and a son. The wife died on 20th January, 2017. The defendant thereafter, filed a suit for eviction of the son on the ground that he is not entitled to remain in occupation in view of the fact that he was not dependant on his father or on his mother at the time of their respective deaths.

The learned Trial Court held that the plaintiff had failed to prove that the defendant is independent, to put it differently that he was not dependent on his father at the time of his death. The defendant did not adduce any evidence. In the plaint, the plaintiff has categorically stated that the defendant is married having his independent family and is a self-reliant person and accordingly not dependant upon his parents.

This statement in paragraph 4 of the plaint has not been denied in the written statement.

Moreover, the defendant has affirmed in the written statement stating that he is in service without disclosing the nature of the service.

Normally, a person in service would be self-reliant unless it is established that the income is so meager that is unable to maintain himself and accordingly an inference of dependency can be drawn from the circumstantial evidence. The defendant has chosen deliberately not to prove his case in defence as he would have been exposed to cross-examination in which case he would be unable to establish his defence. This, of course, is not to say or state as a proposition of law that the plaintiff has chosen to prove his own case and the success of the plaintiff is not depended on the witness or the defence of the defendant.

The definition of tenant is undergone a change in the 1997 Act. The period of five years after the death of the original tenant is extended to his spouse, son and daughter, parents and the widow of the pre-deceased son who were ordinarily living with the tenant upto the death of the tenant as a members of his family and were dependants on him and who do not own or occupy any residential premises. The defendant necessarily has to prove that he was not ordinarily living with his father upto the date of his death as a member of his family and was depended on him as well as he does not own or occupy any residential premises. The exception as to five years is, however, not applicable to the spouse of the tenant who was ordinarily living with the tenant upto the date of his death as a member of his family who was dependant on him and who does not own or occupy any residential premises.

The learned Counsel for the appellant has relied upon the following decisions for the proposition that after the expiry of the statuary period of five years after the death of the original tenant, the defendant ceased to become a tenant under the plaintiff in respect of the suit premises in view of Section 2(g) of the 1997 Act and holding all the property beyond the said period would make the defendant trespasser in respect of the suit premises.

(i) Sri Sushil Kumar Jain & Ors. vs. Pilani Properties Ltd. reported in 2018 (2) CLJ (Cal),

(ii) Shivani Properties Pvt. Ltd. vs. Rajeev Lochan reported in (2018) 4 CLT 151,

(iii) Prasun Chakraborty vs. Smt. Indira Jaiswal reported in 2016 (3) CLJ (Cal),

(iv) Sri Utpal Roy & Anr. vs. Ratul Krishna Banerjee & Anr. reported in 2017 (1) CLJ (Cal).

On the strength of the aforesaid decisions, it is argued that the conditions for continue to occupy the premises beyond the period of five years after the death of father of the defendant needs to be fulfilled by the defendant and in view of the fact that the defendant never claimed in the written statement that the defendant was depended upon his father during his life time, the period of five years after the death of the original tenant is not attracted in the instant case.

In the instant case, it cannot be contended and held that the defendant is not independent at the time of the death of his father. The plaintiff can be required to establish so much of the fact which the plaintiff is expected to lead and establish at the trial. The question of dependency and earnings of the defendant is within the special knowledge of the defendant which they have withheld.

On such consideration, we feel that the learned Trial Judge has applied a wrong test and dismissed the suit on a wrong appreciation of fact and evidence. Accordingly, the impugned decree is set aside. There shall be a decree in terms of prayer (a) of the plaint.

The appeal is disposed of.

The impugned decree is set aside. However, there shall be no order as to costs. The appellant/plaintiff would be entitled to apply for the determination of mesne profits in accordance with law in the pending suit.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.