Panchanan Basak v. Ishanitosh Ghatak — 1962 DIGILAW 66 (CAL)

JUDGMENT 1. THIS is a suit for recovery of possession of premises no. 3 Maharsi Debendra Road, Calcutta and the buildings and structures standing thereon together with all additions, improvements and fixtures upon the expiry of the building lease hereafter stated and for mesne profits and a declaration that the plaintiffs are entitled to realise and collect the entire rent, issues and profits arising out of the said premises and the buildings and structures standing thereon from 1st of Baisakh 1365 B. S. 2. PREMISES No. 3, 3/1 and 3/2 Darmahata Street, now collectively numbered as No. 3 Maharsi Debendra Road, Calcutta belongs to the plaintiff deity Shri Shri Iswar Radhanath Jew. By a lease dated 13 March 1918 one Raghunath Basak, since deceased, as sole shebait of the deity granted a building lease of the piece and parcel of land therein described being the premises No. 3, 3/1 and 3/2 Darmahata Street, Calcutta, hereinafter referred to as the said premises, for A term of forty years commencing from 1st Baisakh 1325 B. S. in favour of Santosh Kumar Ghattack, Asutosh Ghattack, Hridaytosh Ghattack, Bhabatosh Ghattack and Charutosh Ghattack (all since deceased) at a monthly rent of Rs. 490/- inter alia on the following terms and conditions:- (a) That the lessees will during the continuance of the terra hereof granted pay the monthly rents reserved under the lease the manner therein mentioned and shall also pay both share of all rates and taxes and other charges which are now payable or shall hereafter be payable in respect of the said demised premises and also in respect of the buildings and structures to be erected thereupon. (b) The lessees shall at their own costs on or before the 14th day of April 1924 commence to erect and build on the demised premises a three-storeyed masonry building in a substantial and workmanlike manner and finish the same on or before the 14th day of April 1926, such building to be constructed with proper materials as required by the sanction to be obtained in that behalf and in conformity with the plans, elevations and sections to be signed and approved by the lessor. (c) The said buildings to be erected shall be completely finished and made fit for habitation within eight years and one month from the date hereof. (c) The said buildings to be erected shall be completely finished and made fit for habitation within eight years and one month from the date hereof. (d) That the lessees during the term hereby reserved shall keep the said buildings and erections and all fixtures thereof in good and substantial repair, order and condition both internally and externally. (e) The lessees shall not assign or transfer the said demised premises or any part thereof but they shall be entitled to underlet or sublet the same at their own discretion and will at the expiration or sooner determination of the term hereby granted quietly yield up unto the lessor the demised premises and all buildings and structures erected thereon by the lessees pursuant to the covenants aforesaid together with all additions and improvements made thereto and all fixtures of every kind in or upon the said premises in good and tenantable order and condition, reasonable wear and tear excepted. Pursuant to the provision of the lease the said lessees constructed the buildings and structures on the said premises and thereafter sublet the said premises and the said premises and the buildings from time to time to different sub-tenants on different dates. It is admitted that the defendants are the successors-in-interest of the original lessees who are all deceased. On last day of Chaitra 1361 B. S. the said lease expired by efflux of time and it is stated that in spite of demands from the plaintiffs the defendants have failed and neglected to quit and vacate the said premises including the buildings thereon with the expiry of the lease and have rendered themselves in the position of trespassers since 1st Baisakh 1365 B. S. It is also stated that the plaintiff deity has become the owner of the said buildings and structures on the said premises since the expiry of the lease and is entitled to possession of the said buildings and structures and to enjoy all rents, issues and mesne profits amounting to the extent of Rs. 2,100/- per month realised by the defendants from the sub-tenants of the said premises and building since 1st Baisakh 1365 B. S. It is alleged that the defendants have been and are still realising rents, issues and profits to the extent of Rs. 2,100/- per month realised by the defendants from the sub-tenants of the said premises and building since 1st Baisakh 1365 B. S. It is alleged that the defendants have been and are still realising rents, issues and profits to the extent of Rs. 2,100/- approximately per month out of the said premises and buildings from various subtenants thereof and also denying and/or interested to deny the right of the plaintiffs to recover possession of the said premises and buildings and to realise and collect the rents, issues and mesne profits thereof. It is next stated that upon the defendants' failure to quit the said premises and the buildings standing thereon the plaintiffs through their lawyer sent a notice in writing dated 6 June, 1958 to the defendants calling upon them to quit and vacate the said premises including the buildings standing thereon and demanding recovery of possession of the said premises and buildings from the defendants. But in spite of the said notice which was duly received the defendants did not quit and vacate. 3. IN the written statement the defendants state that the lease expired on 1st of Baisakh 1365 B. S. and after the expiry of the said lease the defendants held over with the consent of the lessor and/or of the successor-in-interest the said demised premises as monthly tenants according to Bengali Calendar at a monthly rent of Rs. 490/ -. They deny that they are in wrongful possession of the demised premises including the buildings and structures thereon and state that they are lawfully realising rents from their own sub-tenants. They also deny that they are in the position of trespasser as alleged by the plaintiffs. Next they state the notice dated 6 June, 1958 was wrongful and they were not bound to comply with the same. They state that even after the said notice the plaintiffs have accepted these defendants as monthly tenants and as such the said notice, if any, was waived. They also deny that they are occupying the premises as trespassers or that they are liable to pay any damages to the plaintiffs. They state that even after the said notice the plaintiffs have accepted these defendants as monthly tenants and as such the said notice, if any, was waived. They also deny that they are occupying the premises as trespassers or that they are liable to pay any damages to the plaintiffs. Lastly the defendants state that assuming but not admitting that there was a termination of the tenancy they continued and still continue in possession after such termination of the said tenancy and therefore are statutory tenants and as such entitled to the protection of the West Bengal Premises Tenancy Act. Upon these pleadings the following issues were raised: 1. Did the defendants hold over the demised premises as monthly tenants with the consent of the lessor and of the successors-in-interest as alleged in paragraph 4 of the written statement? 2. Are the defendants in wrongful possession of the demised premises ? 3 (a) Did the plaintiffs accept the defendants as the monthly tenants even after the notice dated 6 June, 1958 as pleaded in paragraph 6 of the written statement? (b) Were the notices waived? (c) Were the defendants bound by the said notice? 4. Are the defendants statutory tenants as pleaded in paragraph 9 of the written statement? 5. To what relief, if any, are the plaintiffs entitled? 4. PANCHANAN Basak, one of the plaintiffs, was examined. The defendants did not examine any witness. There is also an admitted brief of correspondence marked Ext. F. Issues Nos. 1 and 3: The evidence of Panchanan Basak has clearly established that at no point of time the plaintiffs ever consented to accept the defendants as their tenants and/or to their continuing in possession after expiry of the lease. Prior to the expiry of the lease the plaintiffs by their letter dated 25 March 1958 asked the defendants to vacate and yield up vacant possession of the premises together with all buildings and structures erected thereon with all fittings, fixtures etc. on the expiry of the last day of Chaitra 1364 B. S. corresponding with 13 April 1958 when the period of the lease was due to expire. They also requested the defendants to arrange delivery of possession accordingly with previous intimation and appointment with them so as to enable them to obtain delivery of possession from the defendants. on the expiry of the last day of Chaitra 1364 B. S. corresponding with 13 April 1958 when the period of the lease was due to expire. They also requested the defendants to arrange delivery of possession accordingly with previous intimation and appointment with them so as to enable them to obtain delivery of possession from the defendants. It appears that thereafter on 3 April 1958 the plaintiffs wrote to the Collector of the Corporation of Calcutta asking him to present both share of tax bills to them at their address. The lease expired on 13 April 1958. The defendants not having vacated the premises the plaintiffs through their lawyer again wrote a letter (Ext. 1) asking them immediately to vacate and deliver up possession of the said premises with previous intimation to the plaintiffs. On 17 June, 1958 the defendants in reply to the above letter of the plaintiffs' lawyer wrote to him, as follows:- "in reply we write to say that your clients Messrs. Panchanan Basak and others are not entitled to delivery of possession and we refuse to vacate the premises. Further we are not liable to pay any damages whatever. Yours faithfully, For & on behalf of Ishantosh Ghattack & others. Sd /- Ishantosh Ghattack." 5. BY another letter dated 17 June, 1958 the defendants again wrote to the plaintiffs' lawyer thus:- "since you have refused acceptance tendered by peon and also by M. O. we had no other alternative but to deposit the rent to the Rent Court. Please note we shall deposit the rent in Court month by month within due date. You are at liberty to draw the rent. " 6. AFTER these two letters both dated 17 June 1958 it can not be said that the defendants held over with the consent of the plaintiffs or that the plaintiffs accepted the defendants as their monthly tenants after the notice (Ex. 1). The defendants themselves wrote 'since you have refused acceptance tendered by peon and also by M. O. we had no other alternative but to deposit the rent to the Rent Court,' which is a clear admission by the defendants that the rent was refused by the plaintiffs. The defendants never said or suggested that they were accepted as monthly tenants under the plaintiffs. The defendants never said or suggested that they were accepted as monthly tenants under the plaintiffs. The oral evidence of Panchanan Basak that after expiry of the lease the plaintiffs never accepted the defendants as tenants at any point of time and that they did not accept any rent from the defendants: (Qs. 51-52) is fully corroborated by the above letters and the conduct of the plaintiffs. It was contended by Mr. Kar, counsel for the defendants that Ext. 1 which was written after expiry of the lease created a new tenancy because the language in sub-paragraph (1) of the said letter is that 'you become monthly tenants etc. ' He urged that by the word 'become' the plaintiffs admitted that the defendants were their monthly tenants. I must confess that this is the most fantastic argument I have yet heard. No doubt the word 'become' is a mistake or is due to lack of knowledge of English language on the part of the writer for in the context the word 'become' makes no sense nor can the word be reconciled with the rest of the letter. If the word instead was 'became' which I think it was meant to be, the word would have had a meaning. I am unable also to accept counsel's contention that the Word 'become' amounts to admission of the defendants' tenancy by the plaintiffs. 7. IT is well settled that when you look for admission in a document you must look at the entire document. In A. I. R. 1930 P. C. 245 Baba Jawladas v. Pir Sant Das and ors., (1) it was held that if a statement is to be relied on as admission the whole statement must be taken. In (2) A. I. R. 1952 S. C. 343 it was held that an admission must be used either as a whole or not at all. Further it has been held that admission of a point of law does not preclude a party to assert to the contrary (see Tagore v. Tagore (3) (1872) I. A. Supp. Volume at page 71). 8. Further it has been held that admission of a point of law does not preclude a party to assert to the contrary (see Tagore v. Tagore (3) (1872) I. A. Supp. Volume at page 71). 8. HERE however not only that the plaintiffs asked the defendants to vacate and make over possession after expiry of the lease but it has also been clearly established on evidence that the plaintiffs at no point of time after expiry of the lease accepted rent from the defendants or accepted the defendants as tenants or gave their consent to the defendants to hold over the premises. On the other hand there is clear admission by the defendants by their letter dated 17 June 1958 that the plaintiffs refused to accept rent from the defendants after expiry of the lease. Turning now to the letter (Ext. 1) in my opinion by reading the whole letter there can not be any doubt that there is no such admission of tenancy by the plaintiffs in it as is contended by the defendants' counsel. The letter merely said that the lease dated 13 March 1918 had expired and in spite of previous letter dated 25 March 1958 asking the defendants to vacate the premises they had not vacated and that they (the defendants) were called upon to vacate and deliver up vacant possession of the premises immediately. 9. MR. Kar next urged that as the plaintiffs withdrew the rent from the Rent Controller they must be deemed to have accepted it and thus the defendants became monthly tenants. This argument can not be accepted because the payment of rent means both parties must treat it as rent and acceptance must also be as rent. In this case, however, the plaintiffs withdrew the money from the Rent Controller pursuant to an order of this Court which allowed the plaintiffs to withdraw the money without prejudice to the rights and contentions of the parties. Therefore it can not be said that the plaintiffs accepted the rents and/or otherwise assented to the defendants continuing in possession after the expiry of the lease within the meaning of section 116 of the Transfer of Property Act. 10. AS regards payment of Corporation taxes there is evidence that the tax for the first quarter 1958-59 (i. e., for. Therefore it can not be said that the plaintiffs accepted the rents and/or otherwise assented to the defendants continuing in possession after the expiry of the lease within the meaning of section 116 of the Transfer of Property Act. 10. AS regards payment of Corporation taxes there is evidence that the tax for the first quarter 1958-59 (i. e., for. April, May and June 1958) was paid by the plaintiffs after expiry of the lease but taxes for the subsequent quarters could not be paid by the plaintiffs as the bills were not presented to them. It appears that the taxes for the subsequent period were paid by the defendants. In my opinion, mere payment of taxes for the subsequent period by the defendants can not create a new tenancy in favour of the defendants even if the plaintiffs had knowledge of it. In this case, however, the evidence is that only after the institution of the suit the plaintiffs came to know that taxes were paid by the defendants. For these reasons I answer the issues as follows: issue No. 1-Negative. Issue No. 3 (a)-Negative. Issue No. 3 (b)-Negative. Issue No. 3 (c)-Affirmative. Issue No. 4-Question is "are the defendants statutory tenants within the meaning of the West Bengal Premises Tenancy Act of 1956 (hereinafter referred to as the Act of 1956')". Mr. Kar, counsel for the defendants, admitted that the lease in question being for a period of 40 years the Act of 1956 is not applicable. He however contended that the defendants are still statutory tenants because they are no longer holding under a lease. He urged that a statutory tenancy arises when a tenant under a lease or other contractual tenancy holds over and continues in possession after the expiry of the lease which of course I do not accept as hereinafter stated. It was further urged that the lease in question will not come within the mischief of section 3 of the Act of 1956 for it is not subsisting at the time when the protection is asked for, the lease is not in operation-it has expired, therefore section 3 of the Act is not applicable. This in substance is the entire argument of the defendants' counsel. 11. THE counsel also relied on three decisions, namely, (4) A. I. R. 1954 Bom. 358, (5) A. I. R. 1942 Cal. This in substance is the entire argument of the defendants' counsel. 11. THE counsel also relied on three decisions, namely, (4) A. I. R. 1954 Bom. 358, (5) A. I. R. 1942 Cal. 341 and (6) 1949 F. C. 262 which in my opinion have no bearing on the facts of this case and throw no light on the question which falls for my determination. Therefore I do not think it is at all necessary to discuss those cases. 12. TURNING now to the contention of the counsel for the defendants, I must say I cannot possibly accept it as it has no substance. In my opinion the true position in law is that in order that a person can establish his right as a statutory tenant he must first establish that he was a tenant of the premises within the meaning of the Act of 1956 prior to the expiry of the lease and that he continued in possession after termination of that tenancy. If the Act of 1956 did not apply to the lease or the contractual tenancy, under which the person was holding he would not be a statutory tenant by merely retaining possession after expiry of the contractual tenancy. In S. B. Trading v. Satyendra (7) (54 C. W. N. 756, column 1, last but one paragraph) it was held-"a statutory tenancy arises when a tenant under a lease or other contractual tenancy of premises within the meaning of the Act holds over, that is, remains in possession without the landlord's assent after the expiration of the contractual tenancy. The statutory tenant continues in possession not by virtue of any consent of or assent given by the landlord but upon his right to retain possession given to him by the Act. Statutory tenancy begins after the termination of the contractual tenancy." (See also (8) Haskins v. Lewis (1931) 2 KB. at p. 12, 13 ). 13. IN this case it is admitted that the premises in suit was held under a lease for 40 years and that nothing in the Act of 1956 applied to it. Thus the defendants' tenancy under the lease was not within the meaning of the Act of 1956. at p. 12, 13 ). 13. IN this case it is admitted that the premises in suit was held under a lease for 40 years and that nothing in the Act of 1956 applied to it. Thus the defendants' tenancy under the lease was not within the meaning of the Act of 1956. Therefore the tenancy under the lease in question not being within the meaning of the Act of 1956 no statutory tenancy can arise if the tenants continue in possession without the landlord's assent after the expiry of the lease (as in this case ). I have already held that the plaintiffs did not assent to the defendants' continuing in possession, nor did they accept any rent from the defendants after the expiry of the lease. 14. FURTHER it appears from the LEASE dated 13 March 1918 that only a bare piece of land was leased out which floes not come within the meaning of "premises" under the Act of 1956. In any event therefore the Act of 1956 does not apply to this case. Thus I hold, the defendants are mot statutory tenants and answer tissue No. 4 in the negative. issue No. 2:- In view of what is stated before, this case clearly falls within the Transfer of Property Act. The lease in question is no doubt a building lease-the building to be built by the lessees as provided in the lease. The lessees have duly constructed the building in terms of the lease which clearly provides that the lessees 'will at the expiration or sooner determination of the term hereby granted quietly yield up unto the lessor the demised premises and all buildings erected thereon by the lessees pursuant to the covenants aforesaid together with all additions and improvements made thereto in the meantime and all fixtures of every kind in or upon the said premises in good and tenant able order and condition, reasonable wear and tear excepted. ' Thus the lease having expired by efflux of time on 13 April 1958 the plaintiffs became entitled to possession of the said premises together with all structures erected thereon in terms of the lease. ' Thus the lease having expired by efflux of time on 13 April 1958 the plaintiffs became entitled to possession of the said premises together with all structures erected thereon in terms of the lease. As hereinbefore stated on 25 March 1958 the plaintiffs wrote to the defendants that the lease was due to expire on the expiry of the last day of Chaitra 1364 B. S. (corresponding with 13 April 1958) and asked them to arrange delivery of possession accordingly. The defendants, however, did not vacate whereupon on or about 6 June, 1958 the plaintiffs again wrote to the defendants and asked them for possession but the defendants refused. Such refusal on the part of the defendants was no doubt wrongful because under the lease they are bound to vacate and deliver up possession of the said premises with all structures standing thereon on the expiry of the lease to the plaintiffs and they became trespassers. The defendants' subsequent possession of the premises therefore became unlawful and they are liable to be ejected from the said premises and must also be held liable to pay mesne profits. For these reasons I answer Issue No. 2 in the negative. 15. ISSUE No. 5: In the premises the plaintiffs succeed in this action. There will be a decree in favour of the plaintiffs for possession in terms of prayer (a) and for a declaration in terms of prayer (c) of the plaint. As regards mesne profits the parties agreed between themselves during the hearing of this suit that the actual amount received by the defendants from the tenants of the said premises is Rs. 2098. 75 np. per month. Accordingly therefore I assess the mesne profits at the rate of Rs. 2098. 75 np. per month to be paid by the defendants to the plaintiffs from Baisakh 1365 B. S. up to the date of this decree. There will be a decree for mesne profits from Baisakh 1365 B. S. up to to-day 9 March 1962 corresponding to 25 Falgoon 1368 B. S., being 3 years 10 months and 25 days at Rs. 2098. 75 np. per month and thereafter at the rate of Rs. 2098. 75 np. per month for mesne profits until possession is delivered up to the plaintiffs. 16. 2098. 75 np. per month and thereafter at the rate of Rs. 2098. 75 np. per month for mesne profits until possession is delivered up to the plaintiffs. 16. THE defendants however would get credit for all sums paid by them for taxes in respect of the said premises during the said period for which mesne profits are payable and also the sums paid by them pursuant to the orders of this court. There will also be a decree for costs in favour of the plaintiffs. Certified that is a fit case for engaging two Counsel.