Kironmoyee Roy Chowdhury v. Asu Guha — 1989 DIGILAW 245 (CAL)

JUDGMENT This appeal is directed against the judgment and decree dated 25th February, 1985 passed by Sri R. Goswami, Additional District Judge 4th Court, Alipore in Title Appeal no. 1002 of 1983 reversing the judgment and decree dated 29th August, 1983 passed by Sri S.K. Chakraborty, Munsif, 2nd Court, Sealdah in Title Suit no. 167 of 1981. 2. Plaintiff/appellants filed the Title Suit no. 167 of 1981 against the defendant/ respondent for his ejectment from the suit premises as fully described in Schedule 'A' at the foot of the plaint and also for arrear rents. The plaint case is that plaintiff no. 1, Sm. Kironmoyee Roy Choudhury was previously the sole owner of the premises no. 12, Syed Amir Ali Avenue, and by a registered deed dated 27th February, 1960 she leased out the said premises for a period of 21 years to the defendant at a monthly rental of Rs. 70/- according to English Calendar month. Thereafter plaintiff no. 1 transferred half share of the said premises to plaintiff no. 2 who is her son and thereafter a letter of attornment dated 6.5.71 was sent to the defendant and the defendant accepted the same and became a tenant under both the plaintiffs. By efflux of time the lease expired on the last day of February, 1981 and the defendant was bound to put the lessor/plaintiffs into possession of the spit premises on the determination of the lease on the expiry of the last day of February, 1981 and the plaintiffs through their Advocate intimated the defendant by a notice dated 23.2.81 sent through registered post with Acknowledgement Due regarding the termination of the tenancy. However, despite receipt of the notice, the defendant did not quit and vacate the suit premises. The defendant also defaulted in the payment of rents from the month of January 1979 to the month of February, 1981 which comes up to Rs. 1470/- which is described in Schedule 'B' of the plaint. The plaintiffs therefore filed the suit for a decree for khas possession of the suit premises by evicting the defendant therefrom and for a decree for Rs. 1470/- as arrear of rents and for other reliefs. 3. 1470/- which is described in Schedule 'B' of the plaint. The plaintiffs therefore filed the suit for a decree for khas possession of the suit premises by evicting the defendant therefrom and for a decree for Rs. 1470/- as arrear of rents and for other reliefs. 3. The defendant contested the suit by filing a written statement admitting inter alia the creation of the tenancy by a registered deed for 21 years commencing from 1.3.60 to 28.2.81 in respect of the suit premises at a monthly rent of Rs. 70/- under the plaintiff no. 1. But he denied that there was a valid transfer of half share of the suit premises by plaintiff no. 1 to plaintiff no. 2 and averred that in absence of any valid and lawful transfer of any share of the plaintiff there could not be any valid attornment as alleged by the plaintiffs. He also denied any relationship with the plaintiff no. 2 as his landlord as part owner of the suit property. He contended that on the express request of plaintiff no. 1, he accepted plaintiff no. 2 as entitled to receive rents on her behalf without prejudice to his rights to disclaim the position of the plaintiff no. 2 as his landlord. He further averred that in an earlier title suit being numbered as T.S. no. 484 of 1974, the same plaintiffs treated him as a monthly tenant simplicitor and prayed for khas possession under s. 13 of West Bengal Premises Tenancy Act, 1956. The suit was finally disposed of and dismissed by judgment and decree dated 7.10.80 passed by the 3rd Additional District Judge at Alipore in Title Appeal No. 920 of 1979. Both the plaintiffs, accepted rents deposited by him in that suit and on the basis of this fact the defendant claimed that he continued as a monthly tenant even after the alleged determination of the registered lease and therefore, he contended that the plaintiffs were estopped from claiming otherwise and he prayed for the dismissal of the suit. 4. The learned Munsif observed in his judgment that the status of the defendant in respect of the suit flat became evident from the deed of lease dated 27.2.60 (Ext. 1) and he was nothing but a lessee in respect of the same. 4. The learned Munsif observed in his judgment that the status of the defendant in respect of the suit flat became evident from the deed of lease dated 27.2.60 (Ext. 1) and he was nothing but a lessee in respect of the same. He (i.e. defendant) tried to make out a case of fraud and misrepresentation in respect of the execution of the said deed of lease but he failed to substantiate the same by cogent evidence in details. And that being the position he observed that the West Bengal Premises Tenancy Act had no application regarding the lease dated 27.2.60 as it was for more than 21 years. He then referred to the decision in Title Appeal no. 1920 of 1980 and observed that it had been held that the tenancy was created by a registered lease fur a period of 21 years and so the West Bengal Premises Tenancy Act was not attracted to the tenancy in question. Thus discussing the evidence on records the learned Munsif decreed the suit for ejectment and for the arrear rent amounting to Rs. 1470/-. 5. The defendant filed Title Appeal No. 1002 of 1983. The learned Additional District Judge, 4th Court, Alipore hearing the appeal observed in the body of his judgment that “It was not disputed that the subject matter of the suit is within the town of Calcutta and the tenancy of the appellant would have been governed by the West Bengal Premises Tenancy Act, 1956 had there not been the deed of lease dated 27.2.60 so far as the respondent no. 1 is concerned. It was not disputed at the hearing of the appeal that the appellant was inducted as a tenant of the suit property by the lease deed dated 27.2.60. It was also not in dispute that the respondent no. 1 in early 1971 transferred half share of the premises no. 12, Syed Amir Ali Avenue in favour of the respondent no. 2. It was admitted at the hearing of the appeal that since such transfer the respondents used to realise rent from the appellant against joint rent receipt." But as regards the tenancy he has further observed that in so far as the respondent no. 1 is concerned, the appellant is a tenant to whom the provisions of West Bengal Premises Tenancy Act do not apply. 1 is concerned, the appellant is a tenant to whom the provisions of West Bengal Premises Tenancy Act do not apply. The provisions of s. 109 of the Transfer of Property Act, is also not applicable as the respondent no, 2 became the owner on and from the date of execution of the deed of transfer in his favour by the respondent no. 1 by reason of s. 47 of the Indian Registration Act and therefore, he reasoned, that he had two tenancies before him amalgamated into one, i.e., governed by the deed of lease dated 27.7.60 and the tenancy of the appellant under respondent no. 2 on and from March, 1971 to the last day of February, 1981 and that the second tenancy cannot be said to be a tenancy not governed by the West Bengal Premises Tenancy Act, 1956 as this tenancy does not come within the purview of s. 3 of the said Act. And then on such reasoning, the learned lower appellate court allowed the appeal and dismissed the suit. Hence this second appeal by the plaintiff/appellants. 6. This appeal involves several questions of law raised by the appellants and controverted by the respondent. I am presently taking them up one by one. 7. Sri Rabindra Lal Mitra, learned counsel for the appellants has submitted that the finding of the court of first appeal that there were two tenancies-one under plaintiff/ appellant no. 1 for a period of 21 years governed by the Transfer of Property Act and the other for the period from the date of transfer of half share by plaintiff/appellant no. 1 to plaintiff/appellant no. 2 governed by the West Bengal Premises Tenancy Act is erroneous. He has submitted that the question of tenancy had already been determined in the previous Title Suit No. 484 of 1974 and in Title Appeal No. 920 of 1980 taken out of the aforesaid title suit and therefore that decision acted as res judicata. The learned counsel has referred to Explanation I of s. 11 of the Code of Civil Procedure. The learned counsel has referred to Explanation I of s. 11 of the Code of Civil Procedure. Explanation I lays down, "The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto." As regards the defendant's assault on the title of plaintiff No. 2 in half share of the suit property, the learned counsel for the appellant has submitted that this title was not challenged by the defendant in the earlier suit and therefore the defendant is now barred by the principle of res judicata to raise this issue and has referred to Explanation IV of s. 11 of the Code of Civil Procedure which lays down, "In matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 8. Mr. Dasgupta, learned counsel for the respondent has joined issue with the learned counsel for the appellant and has submitted that the plaint case is that the mother (plaintiff no. 1) transferred half share of the suit premises to her son (plaintiff no. 2) But deed of gift has not been produced and proved. According to him the defendant did not make any admission regarding the title of plaintiff no. 2. He has only admitted that half share was transferred to plaintiff no. 2 and this admission does not confer any title. It is up to the plaintiff concerned to establish his title in order to succeed in a suit for ejectment. This submitting, Sri Dasgupta has referred to AIR 1965 SC 1506 , Brahma Nand Puri v. Neki Puri wherein it has been held that the plaintiff must succeed or fail on title that he establishes and if he cannot succeed on the strength of his title, his suit must fail notwithstanding that the defendant in possession has no title to the, property. He has also referred to 50 CWN 447, Jagadish Narain v. Nawab Said Ahmed Khan wherein it was held that the plaintiff can succeed only on the strength of his own title. Sri Dasgupta has relied on two more decisions, one was reported in AIR 1966 SC 605 and the other 23 CLJ 26. He has also referred to 50 CWN 447, Jagadish Narain v. Nawab Said Ahmed Khan wherein it was held that the plaintiff can succeed only on the strength of his own title. Sri Dasgupta has relied on two more decisions, one was reported in AIR 1966 SC 605 and the other 23 CLJ 26. In both of which it was held that title cannot be passed by mere admission. 23 CLJ 26 further added that title to land cannot be passed by mere admission when the statute requires a deed. Moreover, Sri Dasgupta submitted, as provided under s. 123 of the Transfer of Property Act, transfer of immovable property by way of gift must be made by a registered deed and so he questions where is the deed ? Shri Dasgupta has further submitted that by not challenging the title of plaintiff no. 2 in the earlier suit by defendant, it cannot be said that he is estopped from raising the point of law in the second appeal and that the principle of constructive res judicata mentioned in Explanation IV of s. 11 of the Code of Civil Procedure as referred to by Sri Mitra, cannot stand as a bar against the pleading of such point of law and has relied on the decision in AIR 1974 SC 1126 , Smt. Ganga Bai v. Vijay Kumar wherein it was held, “There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute." It was further held that an appeal against a mere finding recorded by the trial court is not maintainable. Thus arguing, Sri Dasgupta has forcefully submitted that the tenant is not estopped from challenging the title of the transferee landlord in a subsequent suit or appeal. That explains why the right of appeal is described as a creature of statute." It was further held that an appeal against a mere finding recorded by the trial court is not maintainable. Thus arguing, Sri Dasgupta has forcefully submitted that the tenant is not estopped from challenging the title of the transferee landlord in a subsequent suit or appeal. The brilliant argument of Sri Dasgupta has been countered by a equally brilliant argument by Sri Mitra in meeting the point raised by Sri Dasgupta. Sri Mitra has referred to s. 116 of the Evidence Act which lays down that : "No tenant of immovable property, or person claiming through such tenant, shall, during continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the persons in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given." But here a question arises. The defendant is not denying the title of the plaintiff no. 1 but he has denied the title of plaintiff no, 2. Sri Mitra is ready with an answer. He submits that the derivative title can be challenged provided the lessee does not attorn the successor landlord and does not pay rent to him and then refers to 41 CWN 1253, Prosadlal Sinha v. Baraboni Coal Concern Ltd., wherein it has been held that, “The Rule of Estoppel contained in s. 116 of the Indian Evidence Act is not limited to the case where the tenant is let into possession by the landlord but applied equally to the case where the tenant, being already in possession (e.g. as a tenant under one person) accepts a tenancy from another. In such a case too he is estopped from denying the title of the latter at the creation of the tenancy. In such a case too he is estopped from denying the title of the latter at the creation of the tenancy. "The tenancy" under s. 116 does not begin afresh every time the interest of the tenant or the landlord devolves upon a new individual by succession or assignment." It is to be noted here that when P.W.1 deposed regarding attornment, there was no cross-examination on this point, and the admitted position is that the defendant accepted the attornment and paid subsequent rents in the joint names of the plaintiffs. On a perusal of paragraph 8 of the written statement I find that the defendant admitted both the plaintiffs as his landlords. Moreover, a lease cannot be split up as was done by the lower appellate court (84 CWN 281 relied on). 9. From the discussions made above I find that the defendant is a tenant as per registered deed of lease dated 27.2.1960 for a period of 21 years and although half share of the tenanted property was transferred to plaintiff no. 2 in 1971, the defendant continued to be a tenant under both the plaintiffs as his landlords as he accepted the letter of attornment dated 6.5.1971 in acceptance whereof he paid rents in the names of the plaintiffs jointly. Although plaintiff no. 2 did not prove his title by producing and proving the deed of gift and although the defendant had the right to deny the title of plaintiff no. 2 in a subsequent suit or appeal yet he is estopped, by virtue of the provisions of s. 116 of the Evidence Act, from denying the title of plaintiff no. 2 once he accepted him as his landlord by accepting the letter of attornment and by paying rent to both the plaintiffs jointly. There cannot be a split in the tenancy and a suit for a decree for partial eviction would not be maintainable. The tenancy under the lease deed came to an end after 21 years by efflux of time and the defendant is liable to be evicted. 10. In the result, the appeal is allowed on contest with cost. The judgment and decree appealed against are set aside and the judgment and decree of the trial court are restored. Appeal allowed; decree of the trial court restored.