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2002 DIGILAW 57 (CAL)

Santi Kumar Sarkar v. Ashit Ranjan Sarkar

2002-01-30

NARAYAN CHANDRA SIL

body2002
JUDGMENT These two appeals are taken up together for analogous consideration for the reasons that two Title Suits and two Title Appeals had been considered analogously by the Courts below. 2. These two appeals have been directed against the judgment and decree passed by the Courts below. The Title Suit No. 21/69 was filed by Santi Kumar Sarkar against Habibar Rahaman, Ashit Ranjan Sarkar & Ors. and O.C. No. 133/69 was filed by Ashit Ranjan Sarkar against Santi Kumar Sarkar. The trial Court after hearing both the parties decreed the suit and the first appellate Court affirmed the same. 3. After hearing the parties the following substantial question of law was formulated:- "Whether the judgments passed by the Courts below are correct in appreciation of the questions placed before them or whether the judgments are perverse?" The facts of both the suits have been fully described in all details in the judgments of both the Courts below. I like to make a glimpse over the same in a very short campus. 4. Title Suit No. 21/69 was instituted by Santi Kumar Sarkar for a decree of declaration that he became the owner of the suit property by adverse possession against 'the defendants and that the settlement records etc. appearing in the names of the defendants were wrong and also that the compromise decree passed on 30.11.1969 in O.C. Suit No. 375 of 1962 was unauthorised false, improper, fraudulent, void, inoperative and infractuous and not binding upon the plaintiff and also that the sale deed executed by the defendant No.1 in favour of defendant No. 2 on 23.2.1968 are also collusive, void and no right passed to the defendant No.2. The plaintiff had also prayed for permanent injunction against the defendants in the suit. In O.C. No. 133 of 1969 the plaintiff Ashit Ranjan Sarkar prayed for ejectment of the defendant from the suit property on the ground of default of payment of rent and also on the ground of his personal requirement of, the suit property. 5. The trial Court dismissed the Title Suit No. 21/69 filed by Santi Kumar Sarkar and decreed the suit and in O.C. No. 133/69 filed by Ashit Ranjan Sarkar on both the grounds of default made in payment of rents by defendant/tenant Santi Kumar Sarkar and for personal requirement of the landlord. 5. The trial Court dismissed the Title Suit No. 21/69 filed by Santi Kumar Sarkar and decreed the suit and in O.C. No. 133/69 filed by Ashit Ranjan Sarkar on both the grounds of default made in payment of rents by defendant/tenant Santi Kumar Sarkar and for personal requirement of the landlord. The first appellate Court concurred with the decision of dismissal of Title Suit No. 21/69 and while agreeing with the observation and the, decision of the trial Court in connection with O.C. No. 133/69, the first appellate Court dismissed the ground of personal requirement of the landlord/plaintiff but decreed the suit in favour of the landlord/plaintiff on the ground of default in payment of rent by the tenant. The trial Court in allowing the ground of reasonable requirement observed that there is no cross-examination of the witness on the evidence adduced by the plaintiff on the ground of reasonable requirement. But, the first appellate Court rejected the observation of the trial Court on merits and on technical grounds under Section 13(3A) of the West Bengal Premises Tenancy Act inasmuch as the O.C. No. 133 of 1969 was filed by the plaintiff within the mis-chief period of three years from the date of his purchase of the suit property. 6. Mr. Asish Kumar Sanyal appearing on behalf of the appellant/defendant/tenant i.e. for Santi Kumar Sarkar argues in all fairness that as both the Courts below rejected the case of his client he has nothing to agitate before the High Court in the second appeal as because those are based on the findings of facts. Mr. Sanyal, therefore, took up the case of the respondent and argued before me that the amicable partition as claimed by Habibar Rahaman and so by Ashit Ranjan Sarkar was not proved and in this connection Mr. Sanyal has drawn my attention to the judgments of first appellate Court. Thus, it is observed by the first appellate Court that as regards the sale ownership of Habibar Rahaman both the plaint and the compromise petition were conspicuously silent. But, the matter was set at rest by the production of the compromise decree (Ext. M) along with several letters (Ext. A series) wherein Santi Kumar Sarkar admitted Habibar Rahaman to be the sole owner of the suit property. But, the matter was set at rest by the production of the compromise decree (Ext. M) along with several letters (Ext. A series) wherein Santi Kumar Sarkar admitted Habibar Rahaman to be the sole owner of the suit property. The brothers of Habibar Rahaman were made defendants in the suit filed by Santi Kumar Sarkar and none of them claimed any share in the suit property. 7. It is observed by the first appellate Court that Santi Kumar Sarkar in his evidence stated that the compromise petition was drafted by his own lawyer Akhil Bandhu Roy at the instance of Habibar Rahaman and himself and the said compromise petition was read over to both of them and after having accepted the terms of conditions of the said compromise petition they put their respective signatures and as such the first appellate Court exclaimed as to how Santi Kumar Sarkar could take the ground of fraud in preparation of the compromise petition. In terms of the compromise petition (Ext. M) the execution of compromise decree passed in O. C. Suit No. 375/62 was kept in abeyance and it was stipulated that the said decree will be treated as cancelled or be put into execution for non-fulfilment of the terms and conditions by either of the parties. The fact remains that the said decree was not put into execution, nor did any of the parties claim that there was any violation of the terms of conditions of the said compromise decree. 8. As regards the claim of adverse possession of Santi Kumar Sarkar neither of the Courts below found any scintilla of evidence produced by him Instead, the first appellate Court repeatedly observed that Santi Kumar Sarkar took the false plea and that too knowing the same to be false, that the compromise petition was vitiated by fraud and also that he became the owner of the suit property by adverse possession. In fact, on perusal of the materials placed before me I am absolutely one with the first appellate Court in this regard that Santi Kumar Sarkar did not come before the Court of equity with clean hands. 9. In fact, on perusal of the materials placed before me I am absolutely one with the first appellate Court in this regard that Santi Kumar Sarkar did not come before the Court of equity with clean hands. 9. I am tempted to quote the observations of the first appellate Court in this regard which reads as below:- "Santi Sarkar brought a false suit being T. S. No. 21 of 1969 containing allegations which he knew to be false and were substantially proved to be such by his own evidence. His intention is nothing more than to stay on the disputed house without payment of rent. He intended to purchase the house from Habibar Rahaman for which be wrote a letter dated 31.10.55 (Ext. A(1). He also admitted in evidence that he wanted to purchase the property. He tried to win over Habibar Rahaman if possible by sweet words. But, when he failed and the property was purchased by Ashit Sarkar, he came before the Court with allegations which were palpably false." 10. Although the first appellate Court found that Santi Kumar Sarkar had paid rents in terms of the compromise petition to Habibar Rahaman and there was no default of payment of rent to him, nothing has been argued by Mr. Sanyal as regards the protection of right of his client under Section 17(4) of the West Bengal Premises Tenancy Act. Mr. Haradhan Banerjee learned Advocate appearing for the respondent/plaintiff/landlord i.e. for Habibar Rahaman and Ashit Ranjan Sarkar & Ors. has referred to the case laws on the point. It is also argued by him that Santi Kumar Sarkar is not entitled to get any protection under Clause (4) of Section 17 of the West Bengal Premises Tenancy Act in the absence of his filing any petition under Clauses (1) and (2) of Section 17 of the said Act. It was held in the case of (1) Ranjit Kumar Dey v. Bhupabala Mitra, 92 CWN 145 that where the defendant made an application to the Court for determination of the rent payable, which is a sine qua non for the operation of Section 17(2) of the West Bengal Premises Tenancy Act, 1956 as amended, he not having complied with the amended provisions of Section 17(2) by filing an application for determination of rent, cannot invoke the provisions of Section 17(4) of the said Act. Mr. Mr. Banerjee has referred to the ratio decided in the case of (2) Ruby Banerjee v. M/s. Mechanics Enterprises Pvt. Ltd., AI R 1988 Cal 252, 255. In the said case the trial Court rejected the application on merits and on considerations of the provisions of the deed of lease between the parties and the evidence adduced by the petitioner/tenant, the Court held that "the case as introduced by the defendant is false and concocted for the purpose of delaying the suit" and for retaining the occupation of the premises without any payment. The Division Bench of this Court thus observed that such finding of the trial Court was obviously based on the facts and as such unassailable in revision. After having referred to weighty catena of Division Bench decisions of this Court in (3) Gujarat Printing Press, 1960, 64 CWN 157, in (4) Tarak Nath Gupta, 1958, 62 CWN 830, in (5) Biswanath Roy. 1961, 65 CWN 149 and in (6) Nazrul Islam, ILR 1968 (1) Cal 170, it was observed by the Division Bench of this Court in the case of Ruby Banerjee that if the dispute posed under Section 17(2) of the Act is sham, false, fraudulent and purposive and raised mala fide only to gain time, the Court must hold that there is no dispute to attract the operation of Section 17(2) of the Act and the application thereunder must be dismissed. 11. Having relied on the decision made in the case of Ruby Banerjee (supra). I do not also like to interfere on the observations made by the first appellate Court as regards the false and frivolous litigation initiated at the instance of Santi Kumar Sarkar. 12. 11. Having relied on the decision made in the case of Ruby Banerjee (supra). I do not also like to interfere on the observations made by the first appellate Court as regards the false and frivolous litigation initiated at the instance of Santi Kumar Sarkar. 12. Section 17(4) of the West Bengal Premises Tenancy Act reads as below:- "If a tenant makes deposit or payment as required by sub-section (1), sub-section (2), or sub-section (2A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord: Provided that a tenant shall not be entitled to any relief under this subsection if, having obtained such relief once in respect of the premises he has again made default in the payment of rent for four months within a period of twelve months." Just on plain reading of the above quoted section it is clear that in order to get the protection under Clause (4) of Section 17(4) of the Act the condition precedent is to deposit the rent determined under Section 17(1) of the said Act. In the instant case Santi Kumar Sarkar the defendant of O.C. No. 133/69 from the very beginning took the false plea and initiated the false and frivolous litigation by instituting Title Suit No. 21/69 only with the ulterior motive to remain in the suit premises for a longer period. He had not only taken the false plea but made an abortive attempt to set the law into motion and this had prompted him not to file any petition under Section 17(1) of the Act. From the framework of Clause (4) of Section 17 of the Act it, appears that the provision was incorporated in the Act in order to give an opportunity of protection to the defaulting tenant. It cannot be the intention of the legislature that such benefit and opportunity can be extended to such a tenant who took the false plea to such extent that the compromise decree made in earlier suit which was drafted by his own Advocate and read over to him and then he put his signature was false, void, inoperative etc. It cannot be the intention of the legislature that such benefit and opportunity can be extended to such a tenant who took the false plea to such extent that the compromise decree made in earlier suit which was drafted by his own Advocate and read over to him and then he put his signature was false, void, inoperative etc. The benefit under Section 17(4) of the West Bengal Premises Tenancy Act cannot be extended in my consideration view to such a wily and devious tenant who did not come before the Court of equity with clean hands. 13. In view of what has been discussed in the foregoing lines both the appeals are dismissed on contest. The judgment and decree passed by the Courts below are hereby affirmed. The Title Suit No. 21/69 is dismissed on contest and the O.C. Suit No. 133/69 is decreed on contest. The plaintiff of O.C. Suit No. 133/69 do get a decree for ejectment against the defendant in respect of the suit premises. 14. The parties are directed to bear their respective costs. A copy of this judgment along with the L.C.Rs. be sent down to the lower Courts.