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1999 DIGILAW 127 (CAL)

DEBESH BISWAS v. DALIA BHATTACHARYYA

1999-03-26

DIBYENDU BHUSAN DUTTA

body1999
D. B. DUTTA, J. ( 1 ) -THE present application under Article 227 of the Constitution of India is directed against the order dated 14th July, 1998 passed by the learned Additional District Judge Alipore in Civil Revision Case No. 148 of 1995 reversing the order dated 2nd February, 1995 passed by the learned Civil Judge, Junior Division, First court, Alipore in Title Suit No. 486 of 1984, now numbered as 137 of 1996 and pending before the learned Civil judge, Junior Division, 2nd Additional court, Alipore. ( 2 ) THE suit was for eviction of a monthly premises tenant on the ground of subletting amongst others. The plaintiff's case is that the defendant No. 1 petitioner Debesh Biswas was the tenant under the original landlady from whom the plaintiff purchased the property and the defendant No. 1 sublet the premises to his brother Santosh Biswas, the defendant No. 2 petitioner. Both the defendants jointly filed an application under sections 17 (2) and 17 (2) (A) of the West Bengal Premises Tenancy Act alleging that the defendant No. 2 is a co-tenant of the defendant No. 1. They also pleaded adjustment against rent to the tune of Rs. 5260 on the allegation that the defedant No. 2 with the special knowledge of the original landlady incurred expenditure to the extent of Rs. 5610 in the years 1978, 1979 and 1980 for effecting necessary repairs and additions and alterations in the suit premises and that the said land lady also took a sum of Rs. 350 from the defendant No. 2 as advance for two months rent which was agreed to be adjusted. ( 3 ) THE learned trial court, upon hearing the application under section 17 (2) and 17 (2a) held the defendant No. 2 to be a co-tenant and not a sub-tenant of the defendant No. 1 and also accepted the plea of adjustment as raised on behalf of the defendants and after determining the amount of rent payable by the defendants and gave necessary directions for payment of the rent found to be payable. The lower revisional court did not concur with the finding of the trial court and negative the defence pleas of joint tenancy as also adjustment. The lower revisional court did not concur with the finding of the trial court and negative the defence pleas of joint tenancy as also adjustment. It, however, held that the deposits of rents already made by the defendants in their joint names were invalid deposits and it set aside the order of the trial court without, however, determining the rent payable by the defendant No. 1 whom it found to be the sole tenant under the plaintiff. ( 4 ) THE dispute here relates to the existence of relationship of landlord and tenant between the plaintiff and defendant No. 2. There is no dispute that the defendant No. 1 is a tenant under the plaintiff. What is disputed is whether the defendant No. 1 was the sole tenant or he held the tenancy along with his brother, the defendant No. 2. The defandants have already filed written statement and the main issue to be decided in the suit would be whether the defendant No. 2 is a co-tenant or a sub tenant of the defendant No. 1. The issue has not yet been framed and it goes without saying that the finding that will be arrived at in connexion with the application under section 17 (2) would be final for the purpose of the said petition and not for the purpose of the suit inasmuch as no issue has yet been framed nor taken up along with the petition. The decision of the court on the question of relationship is obviously a tentative one as it is done in the interlocutory proceeding and the same is only a prima facie finding for the purpose of the proceeding leaving it open to the court for final decision at the time of hearing of the suit on framing appropriate issue. ( 5 ) IN order to substantiate their plea of joint tenancy, the defendant petitioners banked upon an agreement that was entered into by and between the original landlady Shyama Sundari Pal and the defendant No. 2 in November, 1978. According to that agreement, the defendant No. 2 was supposed to be the tenant with effect from December, 1978. But the petitioners have filed copies of two rent receipts along with the present applicatiion which go to suggest that they were issued exclusively in the name of the defendant No. 1 first on 1. 12. 78 and the other on 7. 9. But the petitioners have filed copies of two rent receipts along with the present applicatiion which go to suggest that they were issued exclusively in the name of the defendant No. 1 first on 1. 12. 78 and the other on 7. 9. 81. If one goes by the agreement alone, one would find as if the defendant No. 2 was supposed to be inducted as a tenant while if one goes by the rent receipts one would find as if the defendant No. 1 alone was actualy inducted as a tenant with effect from 1st December, 1978. In paragraph 4 of the application under section 17 (2), if has been categorically alleged by the defendants that the said premises is in exclusive possession of the defendant No. 1 alone. As the materials on record stand, it cannot be said that the lower revisional court's finding regarding the exclusiveness of the tenancy as suggested by the plaintiff opposite party was unreasonable or perverse. Nor can it be said that the said finding was arrived at without proper application of mind or after overlooking certain materials placed before the court below. In the circumstances, there is no scope for interfering with the tentative finding of the lower revisional court on the question of relationship of landlord and tenant in exercise of this court's extraordinary jurisdiction under Article 227 of the Constitution. It cannot also be said that the lower revisional court committed any illegality in negativing the plea of adjustment. Now, under section 17 (2), it is the duty of the court to determine the amount of rent payable by the tenant and to direct the payment. The lower revisional court considered the deposits of rents which were made in the joint names of the defendants after filing of the petition under section 17 (2) to be invalid. He does not appear to have determined the validity or otherwise of the deposits that might have been made by the defendants prior to the filing of the application. The lower revisional court also did not at all determine the amount of rent that was payable by the defendant No. 1 who according to his tentative finding was the tenant of the plaintiff. The lower revisional court also did not at all determine the amount of rent that was payable by the defendant No. 1 who according to his tentative finding was the tenant of the plaintiff. It is thus clear that the order of the revisional court below suffers from a serious infirmity inasmuch as there is failure on its part either itself to determie the amount of rent payable by defendant No. 1 or to direct the trial court to determine the same. In the circumstances, it is ordered that the tentative finding of the lower revisional court regarding the relationship of land-lord and tenant is upheld for the purpose of the interlocutory proceeding under section 17 (2 ). It will, however, be open to the court for a final decision at the time of hearing of the suit on framing appropriate issue. The revisional court's finding regarding the plea of adjustment is also upheld. The trial court is hereby directed to determine the amount of rent payable by the defendant No. 1 and dispose of the application under section 17 (2) (2a) in accordance with law in the light of the observations made above. The trial court is also directed to dispose of the said application as early as possible and preferably not later than four weeks from the date of communication of this order. Let a copy of this order be communicated to the trial court at once. The application thus stands disposed of without, however, any order as to costs. Application disposed of.