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2002 DIGILAW 219 (CAL)

Nemai Chand Seal v. Diksha Brata Chowdhury

2002-04-02

Narayan Chandra Sil

body2002
JUDGMENT N.C. Sil, J. This appeal is directed against the judgment and decree dated 29.6.1995 passed by Shri N.N. Ghosh, learned Assistant District Judge, Fifth Court, Alipore, 24-Parganas (South) in connection with Title Appeal No. 415 of 1989 reversing the judgment dated 31.8.1989 passed by Shri J.C. Maulik, learned Munsif, Fifth Court, Alipore, 24-Parganas (South) in connection with Title Appeal No. 41 of 1989. 2. The suit before the trial court was for declaration of tenancy and injunction. The trial Court after hearing both the parties dismissed the suit on contest. The lower appellate Court allowed the appeal setting aside the judgment and decree of dismissal of the suit passed by the learned Munsif. 3. The facts of the case have been fully described by both the Courts below in their respective judgments and as such I shall refrain myself from going details into the facts. Thus, the facts of the plaint case in brief is that one Hemendra Nath Chowdhury, predecessor of the plaintiffs was the tenant of the suit premises and during the continuance of his tenancy he fell ill in or about 1955 and thus in order to come round he started living at Jhargram keeping his entire family in the suit premises. Subsequently, Hemendra Nath died and the tenancy of the suit premises devolved upon the plaintiffs. Defendant No. 1 is the son of the original landlord Manicklal Seal since dead. Initially, the other sons of Hemendra Nath were made proforma defendants but subsequently their names had been expunged. Proforma defendant No. 2 Shri K.P. Chowdhury is the maternal uncle of the plaintiffs and their local guardian in the absence of Hemedra Nath. In 1956, the defendant No. 2 informed the mother of the plaintiffs that the landlord was demanding higher rents to which the mother of the plaintiffs agreed to pay Rs. 1,200/- per month with effect from 1956 and all rents thereafter were not being paid through Shri K.P. Chowdhury to the defendant No. 1, but the rent receipts were being retained by Shri K.P. Chowdhury. In February, 1976 the plaintiffs came to know from defendant No. 2 that an ejectment decree was passed in connection with Title Suit No. 15 of 1960 and then on further enquiry they came to know that the defendant No. 2 got his name written in the rent receipt at a rental of Rs. In February, 1976 the plaintiffs came to know from defendant No. 2 that an ejectment decree was passed in connection with Title Suit No. 15 of 1960 and then on further enquiry they came to know that the defendant No. 2 got his name written in the rent receipt at a rental of Rs. 125/- per month and lost the ejectment suit. Thereafter, the defendant No. 2 filed a suit for specific performance against the defendant No. 1 which he had also lost. It is the specific case of the plaintiffs that Hemendra Nath never surrendered the tenancy to the defendant No. 1 and the said tenancy continued till his death and after his death it was devolved upon the plaintiffs and the defendant No. 2 had no occasion to reside in the suit premises. The case of the defendant No. 1, on the other hand, is that Hemendra Nath put Shri K.P. Chowdhury into the suit premises as sub-tenant after he had surrendered the tenancy in favour of the defendant No. 1 and having left for Jhargram for good. Thereafter on the request of Hemendra Nath defendant No. 2 was inducted as a tenant in the suit premises. Subsequently ejectment suit being Title Suit No. 15 of 1960 was filed against the defendant No. 2 and the suit was decreed and the defendant No. 2 lost the case in appeal even before the High Court. Thereafter being unsuccessful the defendant No. 2 filed a case of specific performance of agreement against the defendant No. 1 and there also the defendant No. 2 lost the case before the trial Court as well as before lower appellate Court and before the High Court. The judgment of the High Court was reported in the case of Manicklal vs. K.P. Chowdhury, AIR 1976 Cal. 115 . It is the further case of the defence that thereafter the defendant No. 2 set up the plaintiffs to institute the present suit only with a view to stalling the execution of the decree being Title Execution Case No. 66 of 1976 passed in connection with Title Suit No. 15 of 1960. 4. In order to come to a finding the following substantial question of law formulated in the instant case : "Whether there was any surrender of tenancy by the father of the plaintiffs/respondents." 5. Mr. S.P. Roychowdhury, the learned Advocate with Mr. 4. In order to come to a finding the following substantial question of law formulated in the instant case : "Whether there was any surrender of tenancy by the father of the plaintiffs/respondents." 5. Mr. S.P. Roychowdhury, the learned Advocate with Mr. Anit Rakshit, the learned Advocate appearing for the appellant/defendant No. 1/landlord submits before me that admittedly Hemendra Nath left the suit premises for Jhargram keeping his brother-in-law, the defendant No. 2 in one portion of the suit premises and subsequently the defendant No. 2 was admitted as direct tenant. It is pointed out by him that admittedly Hemendra Nath died in the year 1964. Mr. Roychowdhury has then pointed out to me that the defendant No. 2 as defendant in Title Suit No. 15 of 1960 lost the case even upto the High Court and when the decree was put into execution the defendant No. 2 filed a suit for specific performance of contract which he had also lost at all levels. While supporting the judgment of the trial court Mr. Roychowdhury submits before me that the judgments passed by the lower appellate court is based on surmises and conjectures and as such the same is perverse. Mr. Roychowdhury has cited a number of case laws which I shall discuss at the appropriate point of time. Mr. Aniruddha Chowdhury, learned Advocate with Mr. G.K. Basu, learned Advocate appearing for the respondent/plaintiffs submits before me that it is nobody's case that the alleged surrender of tenancy was enough expressed and as such there is only the question of enquiry as to whether there was any implied surrender by Hemendra Nath. Accordingly, Mr. Chowdhury has taken me through page Nos. 9 and 10 of the paper book and tries to impress upon me that the plaintiffs had no occasion to assert their right of tenancy before 1975. Mr. Chowdhury has then taken me through the page Nos. 30 to 34 of the paper book relating to the judgment passed by the lower appellate Court. It is then argued by Mr. Chowdhury that if this court thinks that the lower appellate Court considered the totality of evidence to arrive at the conclusion that there is no surrender of tenancy this court cannot re-open the same as, in that case, it is a questions of fact. In this connection, Mr. It is then argued by Mr. Chowdhury that if this court thinks that the lower appellate Court considered the totality of evidence to arrive at the conclusion that there is no surrender of tenancy this court cannot re-open the same as, in that case, it is a questions of fact. In this connection, Mr. Chowdhury has taken me through ground No. 18 of the memo of appeal and tries to impress upon me that the appellant admitted there that this is a question of fact. 6. In this connection, Mr. Chowdhury has referred to the ratio decided in the case of Santosh Hazari vs. Purushottam Tiwari, 2001(3) SCC 179 . It was held in that case that while writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. 7. Diksha Brata Chowdhury, one of the plaintiffs deposed as P.W.1 that all of them carried their studies residing in the suit premises. He also stated that his father used to send money to be paid as rents to his mother during his father's stay outside Calcutta and his mother used to pay rents through his maternal uncle. It is claimed by the P.W.1 that they were not aware of any facts relating to any suit against the defendant No. 2 till 1976. In his cross-examination the P.W.1 admitted that the electric metres in premises No. 2B, Palit Street was arranged to be made in the name of the defendant No. 2 and the said arrangement might be made since 1956. The P.W.1 expressed his ignorance as to whether the defendant No. 2 used to pay rents in cheque since 1956 as tenant. In his cross-examination the P.W.1 admitted that the electric metres in premises No. 2B, Palit Street was arranged to be made in the name of the defendant No. 2 and the said arrangement might be made since 1956. The P.W.1 expressed his ignorance as to whether the defendant No. 2 used to pay rents in cheque since 1956 as tenant. He admitted that the incidents prior to 1975/76 were beyond his knowledge and he could not re-collect the manner by which the money was tendered to his mother by his father from Jhargram. It is also admitted by him that in the year 1955 his other brothers Subrata and Debabrata were 18 years and 27 years respectively. Subrata Chowdhury, the plaintiff No. 1 is the P.W.2 in the instant case. He stated in his evidence that his father went to Jhargram in the month of July 1955 and then his mother accompanied his father. It is also in his evidence that as Diksha Brata Chowdhury, the P.W.1 was then a child so he must have gone there with the parents. The P.W.2 was 14/15 years old in July, 1955 and at that time he appeared in the School Final Examination from Mitra Institute. It is further in his evidence that his second brother used to stay in the tea garden. He could not say as to whether any new tenancy was created. As many as two witnesses were examined on behalf of the defendant. 8. A number of documents have been filed on behalf of the plaintiffs in order to establish that even after 1955/56 the address of the suit premises was used by the plaintiffs. It appears that the defendants had exhibited the injunction petition filed in Title Suit No. 137 of 1976 which was subsequently re-numbered as Title Suit No. 41 of 1989. There is a strange assertion in paragraph 14 of the said application (Ext. 'A') and the relevant portion of the same reads as under : "That the defendant No. 1 had no right, title or interest to transfer the tenancy from the name of Hemendra Nath Chowdhury to the proforma defendant No. 2 and as a matter off act after the death of Jogamayadebi on 1.6.1972, the plaintiffs requested the proforma defendant No. 2 to have the tenancy transferred in favour of the plaintiffs and proforma defendant Nos. 3 and 4 and the plaintiffs were informed that the tenancy had been transferred and he was paying rents regularly keeping the receipts." 9. I fail to understand as to what prompted the plaintiffs to request the proforma defendant No. 2 for the transfer of tenancy in their names particularly when by the implication of law after the death of Hemendra Nath, the tenancy, if not surrendered, must have devolved upon the plaintiffs and their mother. Besides in the year 1972 the plaintiffs were all adults and it is also not clear as to why they did not approach the defendant No. 1 for the change of tenancy if it was felt so necessary by the plaintiffs. 10. It further appears that the defendant No. 1 had proved the ration cards (Ext. A/1 to Ext. A/5) wherefrom it appears that in 1967 i.e. on the date of the issue of those ration cards plaintiffs were all adults. The defendant No. 1 has also produced the certified copy of the Assembly electoral roll for the year 1975 and it goes to show that both the plaintiffs and his other brothers were all adults at that time and the plaintiff No. 1 was 30 and plaintiff No. 2 was 23 in the year 1975. 11. Using of address of the suit premises by the plaintiffs does not indicate anything that they were the tenants in respect of the suit premises or their father was the tenant of the same. The facts and circumstances of this case suggest that there was definitely a ploy adopted by the plaintiffs and the proforma defendant No. 2 who is none-else than the maternal uncle of the plaintiffs themselves. It further suggests that only when the proforma defendant No. 2 failed to retain the suit property, the plaintiffs emerged with new claim of tenancy. The evidence adduced by the plaintiffs does not go to show anything that the proforma defendant No. 2 had the other members of his family. The comic ignorance pleaded by the plaintiffs does not inspire the confidence of any reasonable man of common prudence. 12. Now, I shall discuss the case laws cited by Mr. S.P. Roychowdhury, the learned Advocate for the appellant. The comic ignorance pleaded by the plaintiffs does not inspire the confidence of any reasonable man of common prudence. 12. Now, I shall discuss the case laws cited by Mr. S.P. Roychowdhury, the learned Advocate for the appellant. It was held in the case of Elias Meyer vs. Manoranjan Bagchi, 22 CWN 441, that a surrender or relinquishment of a lease does not require to be in writing but can be inferred from the acts of the parties. In the case of Sumilita Bhattacharya & Anr. vs. Nila Chatterjee, 1989 (2) C.L.J. 35, the original tenant died and some of his heirs claimed to have inherited the tenancy and they were recognised as such but the other heirs remained mute. In such circumstances, it was held that the lease in respect of those other heirs stood impliedly surrendered or relinquished. It was held in the case of Shah Mathuradas Maganlas & Co. vs. Nagappa Shankarappa Malaga & Ors., AIR 1976 SC 1565 , that surrender of lease can be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. It was also held in that case that whether this has occurred is a question of fact. It was held in the case of M.S. Ram Singh vs. Bijoy Singh Surana & Anr., AIR 1972 Cal. 190 , that surrender in law is the yielding up by the lessee of his interest in the lease and it thereby brings in extinction to the lease, so that the relationship of the parties to the lease, so that the relationship of the parties to the lease comes to an end. 13. From all these above quoted judicial pronouncements it is clear that surrender of tenancy is not necessarily to be made in writing and it can be inferred from the conduct of the parties. 14. Mr. Roychowdhury has then referred to the ratio decided in the case of Surain Singh (dead) By LRS. & Ors. vs. Mehenga (dead) By LRS., 1996 (2) SCC 624 . In the said case the trial court dismissed the suit. 14. Mr. Roychowdhury has then referred to the ratio decided in the case of Surain Singh (dead) By LRS. & Ors. vs. Mehenga (dead) By LRS., 1996 (2) SCC 624 . In the said case the trial court dismissed the suit. But no appeal, the appellate court reversed the finding and held that neither fraud nor misrepresentation was made out. Adequate consideration was passed under the sale deed. Therefore, it was a valid sale deed. The High Court after considering the evidence ultimately recorded a finding that there is no proof that the appellants had paid the consideration. In that behalf, the High Court had looked into the accounts maintained by the appellant himself. On the basis of the said finding, the High Court had reversed the decree of the appellate court and confirmed, though for different reasons, the decree of the trial Court. The Hon'ble Supreme Court in such circumstances observed that though normally the High Court might not have interfered with the finding recorded by the appellate Court, in view of the diverse views by the trial Court and the appellate Court, the High Court was impelled to go into the question and recorded a finding. It was also observed by the Hon'ble Apex Court that the material evidence and relevant circumstances were not adverted to by the first appellate Court and it was held that the High Court, therefore, had done that exercise and it being a finding of fact, the Hon'ble Apex Court did not find it a fit case for further interference. It was held in the case of Rajappa Hanamantha Ranoji vs. Mahadev Channabasappa & Ors., 2000 (6) SCC 120 , that though the High Court had observed that findings arrived at by the first appellate Court are not based on proper appreciation of the evidence on record and the same are set aside but for all intents and purposes and in substance the conclusion of the High Court is that the decision of the first appellate Court is based on no evidence and is perverse. The Hon'ble Apex Court, thus, held that the High Court has rightly drawn an adverse inference on account of non-examination of respondent No. 4, the tenant, as a witness by the appellant. The Hon'ble Apex Court, thus, held that the High Court has rightly drawn an adverse inference on account of non-examination of respondent No. 4, the tenant, as a witness by the appellant. On the facts and circumstances of the case that was vital and was rather the heart of the entire matter going to the root of the whole case. There was no explanation for non-examination of respondent No. 4. Clearly, the decree of the first appellate Court is based on no evidence and is perverse. In the said case the Hon'ble Apex Court had depricated the device taken by the unscrupulous litigants to circumvent orders of courts adopting dubious ways and by taking recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of courts. It is observed by the Apex Court that such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing of exemplary costs. 15. The other case laws cited by Mr. Roychowdhury are on the same points and as such I shall refrain myself from going into the discussions of the same. 16. Admittedly, the plaintiff could not furnish any rent receipt issued either in favour of their father or their mother beyond what appeared in Exhibit 'A'. Exhibit 'A' is a "katcha" receipt against the payment of rent for the months of May, June and July 1956 @ Rs. 79/- received from H.N. Chowdhury and the said receipt was issued by M.L. Sil as trustee to the estate of Nemai Chand Seal. The explanation given by the plaintiffs as to why there is no other rent receipt in their possession as discussed in the foregoing lines does not inspire my confidence at all. The story introduced by the plaintiffs that they did not know anything about the tenancy in favour of their maternal uncle is also totally contradictory to all reasonable approach. It is the case of the plaintiff that except their father, mother and the youngest brother all were living in the suit premises and their maternal uncle, the defendant No. 2 was their local guardian and not only that the defendant No. 2 was entrusted to deposit rents on behalf of Hemendra Nath Chowdhury and after his death on behalf of the mother of the plaintiffs. But the plaintiffs failed to substantiate by any cogent evidence as to how the amount of rent was being transmitted or handed over to the defendant No. 2. Surprisingly, the defendant No. 2, the maternal uncle of the plaintiffs and the person trusted by the parents of the plaintiffs did not come forward to depose anything in favour of the plaintiffs. In fact, the defendant No. 2 has no scope to depose as regards the subsisting tenancy in favour of the plaintiffs, for, defendant No. 2 had lost as many as two suits upto the High Court level, firstly to establish his tenancy and secondly to establish his claim for specific performance of contract. 17. One can use the address of a particular place for reasons galore but that does not ipso facto establish any right either as a tenant or otherwise. Thus, the situation heavily tilts in favour of the defence from all kinds of tests including the conduct of the original plaintiff, his successors and finally their maternal uncle, the defendant No. 2. 18. The learned Advocate for the respondents submits before me as regards Exhibit 'G' that the said document is the solitary document produced by the appellants to show that the defendant No. 2 used the address of the suit premises in his certificate of enrolment as Advocate but this does not establish his tenancy in respect of the suit premises, he has added. True, the use of address of a particular premises by any person does not ipso facto signify his right in respect of the said premises. But this argument does not find any ground to stand particularly when the defendant No. 2 himself had fought the suit for ejectment filed by the defendant No. 1 and thereafter he had filed the suit for specific performance of contract which he had also lost. 19. The lower appellate Court appears to have acted on some hypothesis, surmises and suppositions. Accordingly, it was observed by him that for argument sake if Hemendra Nath had surrendered his tenancy on 1.7.1956 in favour of Krishnapada, the question of requesting respondent No. 1 to accept latter as a direct tenant under him does not arise, for, after the alleged surrender of tenancy Hemendra Nath Chowdhury was in no way concerned with the tenancy of the suit premises. It was also observed by the lower appellate Court that it was not understood by him as to why the respondent No. 1 sought permission from Hemendra Nath after relinquishment of his tenancy right. All these speculations by the lower appellate court appear to be quite nebulous being not founded on the materials on record. The lower appellate court further appears to be oblivious of the relation between Krishnapada Chowdhury and Hemendra Nath Chowdhury. The lower appellate Court did not keep it in mind that the consistent case of the plaintiffs was that the defendant No. 2 was entrusted by their parents for the purpose of payment of rents and also to become their local guardian after Hemendra Nath had left for Jhargram. Then, again the lower appellate Court directed himself to the supposition, "It is not unlikely that he (defendant No. 2) used the address of the suit premises out of his relationship with the appellant. Thus apart, this single piece of evidence does not give any clear and specific indication that he was in occupation of the suit premises as a tenant under the respondents. The said certificate (Ext. 'G') was issued in the year 1967." Here, the lower appellate Court again kept himself totally aloof and unmindful as regards the Title Suit No. 15 of 1960 and the decree obtained by the defendant No. 1 against the defendant No. 2 and also about the suit for specific performance of contract filed by the defendant No. 2 against the defendant No. 1. It is also not clear to me as to how the lower appellate Court took the Exhibit 'G' as the "single piece of evidence" to show the tenancy of the defendant No. 2 in respect of the suit premises. The lower appellate Court appears to have also observed, "It is not understood as to why Hemendra Nath should surrender his tenancy right in favour of brother-in-law when the members of his family did not accompany him to Jhargram." Here also the lower Court appears to have misdirected himself inasmuch as it is nobody's case that Hemendra Nath had surrendered the tenancy in favour of his brother-in-law. The learned lower Court did not also consider the evidence of the P.W.1 where it is stated by him that his mother and his youngest brother being a child had also accompanied his father to Jhargram and what the P.W.1 did not state in his evidence is that though he was child at that time what prompted him to stay in the suit premises. 20. From all this what has been discussed in the foregoing lines it is absolutely candid that there was an implied surrender of tenancy by the original tenant Hemendra Nath and the documents produced by the plaintiffs showing the use of the address of the suit premises in the absence of any rent receipts issued either in their favour or in favour of their predecessor do not stand to substantiate the case of the plaintiffs. The judgment of the lower appellate Court is based on speculations and surmises and is not founded on the evidence adduced before him inasmuch as the lower appellate Court is conspicuously silent as regards the judgment passed in Title Suit No. 15 of 1960 and the fact of filing the suit for specific performance of contract by the defendant No. 2. That being the position the ratio decided in the case of Santosh Hazari (supra) as referred to by the learned Advocate for the respondent does not appear to have any application to the instant case and the High Court, in my considered view is well within its jurisdiction to interfere with the findings of the learned lower appellate Court. 21. The appeal therefore succeeds. The appeal is, thus, allowed on contest. The judgment and decree passed by the lower appellate Court are hereby set aside. The judgment and decree of dismissal passed by the learned Trial Court are hereby affirmed. The suit filed by the respondents/plaintiffs before the trial Court is hereby dismissed. 22. There shall be no order as to costs. 23. The lower Court records along with the copy of the judgment be sent down forthwith. Appeal succeeds.