Shyam Sundar Das v. Gunadhar Pramanik — 1979 DIGILAW 4 (CAL)

JUDGMENT 1. THIS appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Third court at Midnapore in title Appeal No. 187 of 1975 reversing the judgment and decree passed by the learned Munsif second court, Contai, in title suit no. 11 of 1972. 2. THE plaintiff is the appellant in the instant appeal and the said title suit no. 11 of 1972 was instituted by the plaintiff appellant for eviction of the defendant respondent from the premises in suit on the ground that the said defendant was a trespasser. The case of the plaintiff was, inter alia that the suit premises was acquired by the plaintiff partly by purchase and partly by deed of settlement made by the farther of the plaintiff. The plaintiff further contended that initially one Laxmi Kanta Das was a tenant in respect of the suit premises and he was evicted in due course of law. After that the defendant respondent illegally has passed in the suit premises and has ouiumed rent receipts collusively from the father of the plaintiff and plaintiff contended that he has a step-mother and under the momence of the step mother, lather has been acting prejudicially against the interest of the plaintiff and the rent receipt and other documents were being manufactured by the finer of the plaintiff to plaintiff's loss and prejudice. The aforesaid contention of the plaintiff was however denied by the defendant in his written statement and it was contended inter aha that the father was the real owner of the property and as a matter of fact that he had been dealing with the said property independently as a owner thereof and even in respect of other portion of the house in question the father had been acting as the owner and had been taking all steps for enhancement of rent in respect of the said portions which are under the possession of the local Block Development Officer. The defendant denied that there was any collusion between the father and the defendant and the defendant also pleaded alternatively that even if the mother was the natural guardian of the plaintiff, who was minor at the time of induction of the tenancy in favour of the defendant, such tenancy was made also at the instance of the mother. The defendant denied that there was any collusion between the father and the defendant and the defendant also pleaded alternatively that even if the mother was the natural guardian of the plaintiff, who was minor at the time of induction of the tenancy in favour of the defendant, such tenancy was made also at the instance of the mother. The learned Muhsif decreed the said suit inter alia on the finding that the plaintiff had title to the property and the defendant failed to establish that he was inducted as a tenant by the father of the plaintiff. 3. AGAINST the said judgment and decree of the trial court the defendant-respondent preferred an appeal being the aforesaid title Appeal NO. 187 of 1979 in the third court of appeal below also came to the finding that the plaintiff became the owner of the suit premises and it was noted by the court appeal below that the said point was not disputed before the appeal court but the court of appeal below came to the finding that the father of the plaintiff had been realising rent in respect of the property in question and the defendant having been inducted as a tenant by the father he became a tenant in respect of the suit premises and as such he could not be evicted by the plaintiff on the ground that he was a trespasser. Accordingly the judgment of the trial court was reversed and the suit was dismissed and the instant appeal was preferred by the plaintiff. 4. MR. Basu, learned Counsel appearing for the plaintiff-appellant contended that admittedly both the courts had found the title of the suit premises in favour of the plaintiff. Accordingly the father could not induct any tenant in respect of the suit premises without the authority from the owner and even assuming that a tenancy had been inducted by the father in favour of the defendant such tenancy was of no consequences and. the defendant must be held to be a tresspasser in respect of the suit premises belonging to the plaintiff. Mr. Basu also contended that the judgment of the court of appeal below is also not a proper judgment of reversal and on that score also the said judgment is also liable to be set aside. Mr. the defendant must be held to be a tresspasser in respect of the suit premises belonging to the plaintiff. Mr. Basu also contended that the judgment of the court of appeal below is also not a proper judgment of reversal and on that score also the said judgment is also liable to be set aside. Mr. Bose contended that the reasoning’s of the trial court had not been taken into consideration of the court of appeal below but nonetheless a judgment of a reversal had been passed by the court of appeal below. Mr. Basu also contended that it was the specific pleading of the plaintiff that under the influence of the step mother, the father had been acting prejudicially against the plaintiff and for that reason the plaintiff had been residing at the time of the institution of the suit under the guardianship of his mother. Mr. Basu contended that these facts having a relevant bearing on the decision of the dispute raised by the parties had not been taken into consideration by the court below and accordingly the judgment of the court of appeal below should be set aside for not considering the relevant materials on record. Mr. Roy Chowdhury, learned Counsel appearing for the defendant respondent, submitted that in view of the fact that the title of the plaintiff had not been disputed by the defendant before the court of appeal below and also in view of the fact that both the courts have found title in favour of the plaintiff, it is no longer open to the respondent to dispute the title of the plaintiff appellant. But Mr. Roy Chowdhury contended that the plaintiff being the minor son, the father had all along been dealing with the property in question including the suit premises and had been inducting tenants in respect of the said property and as a matter of fact the father had been realising rents and had also been taking steps to increase the rent in respect of the other portion of the property wherein the B. D. O was a tenant. Mr. Roy Chowdhury drew attention of this court to Exts. A and D series and submitted that it will appear from Ext. Mr. Roy Chowdhury drew attention of this court to Exts. A and D series and submitted that it will appear from Ext. A series that the father of the plaintiff had been granting rent receipts in favour of the admitted tenant, namely Laxmi kanta Das and also in favour of the present defendant. Mr. Roy Chowdhury submitted that it was admitted in the evidence by the plaintiff that the said rent receipts were in the hand writing of the father of the plaintiff. Mr. Roy chowdhury also submitted that from ext. D series it will appear that the father had also been dealing with other portion of the property wherein the B. D. 0. was a tenant and had been realising rent in respect of the said portion and had also taken steps for increase of the rent. Mr. Roy Chowdhury contended that although the court of appeal below has not specifically stated that by virtue of implied agency the father had been inducting tenant for and on behalf of the plaintiff but it will appear from the decision made By the court of appeal below. Proceeded on the footing that the father had been dealing with the tenant in respect of the property in question and the father having inducted the defendant as a tenant the defendant must be held to be a tenant in respect of the suit premises and it cannot be contended that he is a trespasser. In this connection Mr. Roy Chowdhury drew the attention of this court to section 187 of the Indian contract Act and submitted that in the instant case from the facts and circumstances pleaded and proved it must be held that the father was not only acting under an implied agency but there was also an agency by estoppel so far as the father is concerned. Mr. Roy Chowdhury contended from the Ext. A and D series that it is quite clear that for a lone time the father had been dealing with 'the tenants in respect of the propery in question including the suit premises and the plaintiff being a minor son it must be held that there was an implied agency of the father. Mr. Roy Chowdhury contended from the Ext. A and D series that it is quite clear that for a lone time the father had been dealing with 'the tenants in respect of the propery in question including the suit premises and the plaintiff being a minor son it must be held that there was an implied agency of the father. Mr. Roy Chowdhury also contended that in any event even if the mother was acting as a natural guardian she not having objected to the dealing of the father with the tenants it must be held that there was an agency by estoppel and the defendant having been inducted by such an agent must be held to be a tenant under the plaintiff and the plaintiff is not entitled to contend that the defendant was a trespasser. 5. MR. Basu learned Counsel appearing for the plaintiff appellant in reply to this contention of Mr. Roy Chowdhury contended that there was no pleading of implied agency or agency by estoppel and in the absence of such pleading, such plea cannot be raised before this court in a second appeal. Mr. Basu contended that the existence of an agency is a question of fact and is required to be established by evidence and until and unless specific pleadings are made to that effect, such contention cannot be raised as a pure question of law in a second appeal. 6. I am however unable to subscribe to this contention of Mr. Basu. It is true that the pleading of the defendant is not very specific on the point but there are sufficient materials in the written statement to indicate that the father of the plaintiff had been dealing with the properties all along and as a matter of fact had inducted tenants in respect of the property in question including the suit premises and had also taken all necessary steps in respect of other portion of the property wherein the B. D. O. is the tenant. It should be remembered that the pleadings are not often very happy and specific but the court must look to the substance of the pleading as a whole for the purpose of appreciating the true import thereof. It should be remembered that the pleadings are not often very happy and specific but the court must look to the substance of the pleading as a whole for the purpose of appreciating the true import thereof. It appears to me that even long after the” ion of the Nirupanpatra, the father had been dealing with the property under the said Nirupanpatra including the suit premises and it has not been denied by the plaintiff that the rent receipts granted by the father to the Block Development Officer and/or to the previous tenant Laxmi Kanta Das were without any authority of the plaintiff and) or the plaintiff's mother. Accordingly, in my view, although the plaintiff has a title to the property the father had been acting as an agent of the plaintiff and the father having inducted the defendant as a tenant by granting rent receipts, the defendant must be deemed to be a" tenant of the principal, namely, the plaintiff. Hence the suit for eviction of the defendant on the ground that he is a trespasser must fail. The appeal is therefore dismissed, but I make no order as to costs. Let the records go down as early as practicable. Appeal dismissed.