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2000 DIGILAW 217 (CAL)

GOVINDA MOUT v. TARAK NATH SHAH

2000-04-28

GORACHAND DE, SAMARESH BANERJEE

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G. C. DE, J. ( 1 ) -ONE Govinda Mout filed Title Suit No. 405 of 1986 against one Tarak Nath Shah in the City Civil Court, Calcutta praying for a declaration that he is a monthly tenant under the defendant in respect of one room and a privy on the northern side of premises No. 3, Leonard Road, Calcutta-22 and/or permanent injunction restraining the defendant, his men and agents from interfering with his possession and enjoyment of the suit property. ( 2 ) SHRI Tarak Nath Shah, on the other hand, instituted Title Suit No. 1248 of 1986 against the said Govinda Mout in the same Court praying for a declaration that the defendant was a licensee in respect of one room situated on the northern side of the premises No. 3, Leo'nard Road under the plaintiff and for vacant and khas possession of the said premises. ( 3 ) BOTH the suits were tried analogously by the Fourth Bench of the City Civil Court at Calcutta and Shri P. K. Mitra, Judge of the said Court by a common judgment dated 30. 4. 93 dismissed the Title Suit No. 405 of 1986 and decreed the Title Suit No. 1248 of 1986 on contest in favour of Tarak Nath Shah with a direction upon Govinda Mout to hand over vacant possession of the suit premises within one month failing which liberty was given to the landlord to execute the decree. Against the said judgment, Govinda Mout filed FAT No. 1996 of 1993 against the decree passed in Title Suit No. 1248 of 1986 and FAT No. 1997 of 1993 against the order of dismissal of the Title Suit No. 405 of 1986. The defendant Tarak Nath Shah appeared in both the appeals and those were taken up for analogous hearing. So this judgment is to govern the fate of both the appeals. ( 4 ) THE plaint case as made out by Govinda Mout in Title Suit No. 405 of 1986 is that he was inducted as a tenant in respect of one room and a privy in the northern side of the premises No. 3, Leonard Road, Calcutta from by the defendant at a rental of Rs. 35/- payable according to English Calendar month on the understanding that no rent receipt would be issued, that the rent was raised to Rs. 35/- payable according to English Calendar month on the understanding that no rent receipt would be issued, that the rent was raised to Rs. 45/- per month and lastly up to Rs. 55/ per month and Govinda paid rent to the landlord Tarak Nath in respect of the said tenancy up to the month of January, 1986. But on 4. 3. 86 Tarak Nath and his men attempted to dispossess Govinda from the said room for which a General Diary was made with the local police station, and for protecting his valuable tenancy right, the instant suit was filed for a declaration of his tenancy and also for a permanent injunction in the manner hereinabove indicated. On the other hand, the plaint case of Shri Tarak Nath Shah in Title Suit No. 1248 of 1986 is that in the year 1979 Govinda approached him for providing him a temporary accommodation in a room situated in the northern side of a plot of land, being a portion of premises No. 3, Leonard Road, Calcutta and assured to look after the said plot of land as there was apprehension of encroachment thereof by the out siders. The defendant also represented that he was in service in the office of the Navy Commander as a gardener (Mail) and would render voluntary services to the plaintiff as and when required. On the basis of such representations, Tarak Nath permitted Govinda by way of leave and licence to occupy the said room free of charge. Since 1979 Govinda was occupying the said room as a licensee under the plaintiff, but being influenced by interested persons Govinda claimed a right of tenancy in respect of the said room as well as the privy and filed the Title Suit No. 405 of 1986. By a letter dated 21. 4. 80, Tarak Nath withdrew and revoked the leave and licence and called upon Govinda to remove all his belongings from the room given to him on the basis of leave and licence. In spite of receipt of the notice Govinda failed and neglected to vacate and deliver vacant possession and accordingly Tarak Nath was constrained to file the title suit praying for a declaration that the defendant was a licensee in respect of the said room and also for vacant and khas possession of the premises along with other reliefs. In spite of receipt of the notice Govinda failed and neglected to vacate and deliver vacant possession and accordingly Tarak Nath was constrained to file the title suit praying for a declaration that the defendant was a licensee in respect of the said room and also for vacant and khas possession of the premises along with other reliefs. The written statement filed by Tarak Nath in Title Suit No. 405 of 1986 and the written statement filed by Govinda in Title Suit No. 1248 of 1986 being the same, as made out in their respective plaints, We do not reiterate the respective defence case of Tarak Nath and Govinda in the respective title suit. On the basis of the respective pleadings in both the suits the learned Judge framed as many as seven issues and after a due consideration of the evidence adduced by the parties, disbelieved the creation of tenancy in favour of Govinda and came to a finding that Govinda was a licensee under Tarak Nath and accordingly, he dismissed the title suit brought by Govinda and decreed the suit instituted by Tarak Nath directing Govinda to vacate the suit premises within one month. ( 5 ) IN course of hearing of this appeal, the learned counsel appearing on behalf of the appellant in both the appeals made forceful argument to the effect that Govinda was a tenant in respect of the suit room and the privy as he was inducted as a tenant on condition for rendering services to the plaintiff. It was also argued that in spite of deposit of rent in the Rent Control, the Landlord did not raise any objection with the Rent Controller of Calcutta. So the entire argument of the learned counsel is centered round the question as to whether the service rendered by Govinda could be treated as rent and whether Govinda was a tenant under the landlord, Tarak Nath. The learned counsel further argued that the plaintiff Tarak Nath on the basis of own pleading having admitted that Govinda was allowed to occupy the premises in question against rendering of service, the trial Court erred in law in coming to a conclusion that the tenancy was not proved and Govinda was a mere licensee. The learned counsel further argued that the plaintiff Tarak Nath on the basis of own pleading having admitted that Govinda was allowed to occupy the premises in question against rendering of service, the trial Court erred in law in coming to a conclusion that the tenancy was not proved and Govinda was a mere licensee. ( 6 ) ON the other hand, the contention of the learned counsel for the respondent in both the appeals is that Govinda never pleaded the service tenancy either in his plaint or in his written statement nor he claimed in his evidence that he was put into possession for rendering certain services to the landlord. The learned counsel further pointed out that the claim of tenancy raised by Govinda is nothing but a myth as he could not say actually from whom the alleged tenancy was taken and actually in which period. The learned counsel also pointed out that mere deposit of rent with the Rent Controller cannot create a tenancy and Govinda has hopelessly failed to prove that he was inducted as a tenant at a monthly rental of Rs. 35/- that was enhanced to Rs. 55/- or that he paid rent to the plaintiff up to the month of January, 1986. The learned counsel further argued that the service alleged to have rendered by the plaintiff cannot be construed as rent within the meaning of the West Bengal Premises Tenancy Act and as such, the argument of service tenancy is not tenable. ( 7 ) IT appears that the trial Court discussed the evidence adduced by the parties in details and pointed out as to why the evidence adduced by Govinda could not be relied upon as convincing. We have minutely examined the evidence adduced by the parties specially Govinda. In the examination-in-chief he stated that he was inducted by the plaintiff as a tenant in respect of one room and one bathroom since 1958. He denied that he was allowed to stay in that room as a caretaker. He also admitted that one man of Orissa was working a mali under one Marwari occupying a portion of 3, Learned Road, Calcutta and actually Govinda started to reside with that man in the premises No. 3, Leonard Road. He denied that he was allowed to stay in that room as a caretaker. He also admitted that one man of Orissa was working a mali under one Marwari occupying a portion of 3, Learned Road, Calcutta and actually Govinda started to reside with that man in the premises No. 3, Leonard Road. He once again denied the suggestion that in the year 1979 he was given the licence in respect of the said room, but ultimately Govinda went further to say that he was inducted as a tenant in respect of the suit room by the father of the defendant. Of course, he could not say the name of the father of the defendant and in the plaint filed by Govinda in Title Suit No. 405 of 1986, he disclosed that the name of the father of the plaintiff was not known. ( 8 ) TRUE it is that the defendant produced certain documents in support of his possession and continuous stay at premises No. 3, Leonard Road, but from his evidence it is sufficiently clear that long before taking the suit room in occupation Govinda used to reside in the premises No. 3, Leonard Road with another man of Orissa. Admittedly, Govinda is a man hailed from Orissa. So the documents produced by the plaintiff cannot prove the creation of the tenancy in his favour. Moreover, Govinda contradicted his own plaint case by disclosing the fact that he was inducted as a tenant by the father of Tarak Nath. So at one hand, he denies his occupation as a licensee and on the other hand, he failed to prove his tenancy. ( 9 ) THE learned counsel for the appellant pointing out the evidence adduced by Tarak Nath to the effect that he got challan from the Rent Controller after 1979 and had not filed the challans in Court, argued at length that if the challans were produced it would be seen that Tarak Nath accepted those challans and withdrew the amount of rent deposited by Govinda with the Rent Controller. But the learned counsel for the respondent rightly pointed out that the creation of tenancy is a case made out by Govinda and he is required to prove his case and he cannot stand on the weakness of the defence case. But the learned counsel for the respondent rightly pointed out that the creation of tenancy is a case made out by Govinda and he is required to prove his case and he cannot stand on the weakness of the defence case. On this score, the learned counsel for the respondent rightly placed reliance on a decision of the Apex Court reported in AIR 1968 Supreme Court 1083 (M/s. Om Prova Jain v. Abnash Chand) to show that the Apex Court took a view to the effect that the ordinary rule of law of evidence is to be given only on plea properly raised and not in contradiction of the plea. The said finding though came out in connection with election petition but the position of law as made out in Order 6 Rule 2 of the Civil Procedure Code was settled by the said finding of the Apex Court. In the present case, the pleadings of Govinda and the evidence adduced contradict each other. On the other hand, attempt has been made to stand on the case as made out by Tarak Nath. ( 10 ) IT is also a settled principle or law that mere deposit of rent with the Rent Controller cannot create a tenancy. So, non-production of challans by Tarak Nath cannot be construed to be a cogent evidence in support of the claim of creation of the tenancy. ( 11 ) TARAK Nath, on the basis of oral and documentary evidence, has proved that the room in question was given to Govinda as a licensee and not as a tenant. The non-granting of rent receipts was never challenged by Govinda in the appropriate forum and as such, the payment of rent without receipt from a long period of 1958 was rightly disbelieved by the trial Court. Similarly, even if it is believed that Govinda was given any possession of the room on condition of giving certain service as and when required, that acceptance of service in lieu of right to occupy does not amount to acceptance of rent under the West Bengal Premises Tenancy Act. On this score the learned counsel for the respondent rightly placed reliance on a decision of the Apex Court reported in AIR 1987 Supreme Court 2055 (Dipak Banerjee v. Smt. Lilabati Chakraborty ). On this score the learned counsel for the respondent rightly placed reliance on a decision of the Apex Court reported in AIR 1987 Supreme Court 2055 (Dipak Banerjee v. Smt. Lilabati Chakraborty ). So the argument made by the learned counsel for the appellant as regards the service tenancy is not tenable. Moreover, the deposit of rent against the service tenancy cannot be reconciled. Service rendered cannot be quantified by money value so as to bring it within the ambit of the rent act. Accordingly, the deposits of rent made by Govinda cannot be construed as a creation of tenancy or its continuation. Moreover, deposit of rent with the Rent Controller without the proof of creation of tenancy after a lapse of about 28 years cannot prove the creation of the tenancy. ( 12 ) THE materials on record are sufficient to prove that Govinda was a mere licensee in respect of the suit room. The rendering of any service in lieu of such occupation has also not been proved by Govinda to justify the claim of service tenancy as urged by the learned counsel for the appellant. So considering all these aspects, we hold and conclude that the trial Court rightly came to a conclusion that Govinda is not a tenant but a licensee under Tarak Nath and it rightly dismissed the declaratory suit filed by Govinda and decreed the suit of Tarak Nath. We find no reason to interfere with the findings of the trial Court. ( 13 ) BOTH the appeals are accordingly dismissed on contest. The judgment and decree of the trial Court are hereby confirmed. But considering the circumstances, the parties do bear their own cost of both the appeals. This judgment would govern the fate of both the appeals. S. Banerjea, J.-I agree. Appeal dismissed.