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2003 DIGILAW 126 (CAL)

ARUN DAS v. PARESH CHANDRA DAS

2003-03-19

ARUN KUMAR MITRA

body2003
A. K. MITRA, J. ( 1 ) THESE two appeal have been preferred by the defendant-appellant being dissatisfied with judgment and decree dated 22. 7. 94 passed by the learned Additional District Judge, 10th Court at Alipore, District 24 Parganas (South) in title appeal No. 22/92 affirming the judgment and decree dated October 5, 1991 passed by the learned Munsif, 1st Court, at Alipore in title suit No. 316 of 1986. Both the title suits being title suit Nos. 316 and 325 of 1986 have been filed by the plaintiff Sri Paresh Ch. Das. Both the title suits were heard analogously by the learned Munsif. ( 2 ) THE title Suit No. 316 of 1986 was filed by the plaintiff Sri Paresh Ch. Das which was a suit for eviction of licensee on revocation of licence. The case made out by the plaintiff in this title suit as would appear from the plaint itself in brief is inter alia, as follows: ( 3 ) THE plaintiff P. C. Das purchased a residential plot of land measuring about 2 kottahs and 1 sq. foot and made a construction in and over the said plot and the said premises was numbered as 19r, Selimpur, Calcutta 31. In the said constructed premises of the plaintiff there was a vacant room at the middle western corner. The defendant Sri Arun Das is the full blood younger brother of the plaintiff. The defendant had no house to reside and the plaintiff out of affection allowed the defendant to reside in the said vacant room situated at almost middle western portion of the said premises which is the subject-matter of the suit herein. The plaintiff allowed the defendant to reside there in the suit property as licensee and it was an understanding that as and when the plaintiff would require the premises the licensee defendant would have to vacate the suit premises. The plaintiff was doing business at Tinsukia, Assam. Subsequently, when the plaintiff required the suit property he requested the defendant to quite and vacate the same. But the defendant prayed for some more time so that he could find out alternative accommodation and he could shift there vacating the suit premises. The plaintiff on humanitarian consideration conceeded to the request of the said defendant. Subsequently, when the plaintiff required the suit property he requested the defendant to quite and vacate the same. But the defendant prayed for some more time so that he could find out alternative accommodation and he could shift there vacating the suit premises. The plaintiff on humanitarian consideration conceeded to the request of the said defendant. Thereafter Sri Nirmal Das, the elder son of the plaintiff came to Calcutta to start on business in or around the city of Calcutta when the plaintiff again requested the defendant to find out alternative accommodation and to vacate the suit property. But since the defendant did not vacate, the plaintiff had to construct a shop room facing Selimpur Road at the northern boundary of the said premises and for want of accommodation the son of the plaintiff had to start his business in one portion of the said shop room and the other extended portion of the said shop room was being used for his residence. The plaintiff out of sympathy decided to rehabilitate the defendant, the own brother of the plaintiff and sent two bank draft amount to Rs. 5,000/- and Rs. 8,000/- dated 1. 1. 1980 in the name of his son Nirmal Das for securing some alternative arrangement for the defendant and for him. Out of the said fund two plots were purchased. One in the name of the defendant and the other in the name of Nirmal Das. The plaintiff, thereafter, again requested the defendant to vacate the suit property but the defendant by sending the letter to the plaintiff who was at Tinsukia, Assam prayed for some more time. Thereafter, the plaintiff was informed that the defendant was encroaching vacant space lying at the western side of the suit property and then he asked the defendant to quite and vacate the suit property and orally revoked the licence previously granted to the defendant in respect of the suit property and he finally asked him to quite and vacate on 15. 7. 1986. Thereafter the plaintiff filed the suit praying for a decree for recovery of khas possession at the suit property described in the Schedule of the plaint by evicting the defendant therefrom. The plaintiff Paresh Ch. Das filed Title Suit No. 316/86 against his brother Arun Das. On similar cause of action this plaintiff Paresh Ch. Das filed another suit being title suit No. 325/86. The plaintiff Paresh Ch. Das filed Title Suit No. 316/86 against his brother Arun Das. On similar cause of action this plaintiff Paresh Ch. Das filed another suit being title suit No. 325/86. This title suit No. 325/86 was filed by Sri Paresh Ch. Das against his sister Sm. Sadhana Das on similar grounds. Both the suits were heard analogously by the learned trial Judge. The case made out by the plaintiff was identical and the defence was also identical. In this case that is Title Suit No. 316/86 the defendants in his written statement made out a case denying all the allegations made in the plaint. ( 4 ) THIS defendant Sri Arun Das in his written statement stated that in the year 1951 Late Anukul Ch. Das the father of the parties during his life time started living in premises No. 19r, Selimpur Road, Dhakuria, Calcutta-31 as tenant. The family of the defendant was a joint Hindu family and he was a minor. In the year 1954 he came to know that his father has purchased the entire tenanted property of premises No. 19r, Selimpur Road out of his own money. At that time the plaintiff was unemployed and was completely dependent upon his father and the plaintiff had no capacity to purchase any property. ( 5 ) THE defendant has been residing in the said premises at 19r, Selimpur Road since 1951. The structures where the defendant is living was constructed by his father during his lifetime and it is correct that the defendant is full blood younger brother of the plaintiff. It was also stated in the written statement that the plaintiff had no capacity to construct any structure at that time as he was unemployed and was maintained by his father. The plaintiff left Calcutta in the year 1956 for earning and started a business at Tinsukia within the State of Assam. Late Anukul Ch. Das did all repairing works and reconstructed the old structures during his life time. Thereafter the defendant did repairing works of this structure where he has been living with his family. Late Anukul Ch. Das told the defendant that he had purchased the entire property at this own money. The plaintiff never requested the defendant to quit, vacate and deliver the khas possession of the suit property as the plaintiff stated in the plaint. Thereafter the defendant did repairing works of this structure where he has been living with his family. Late Anukul Ch. Das told the defendant that he had purchased the entire property at this own money. The plaintiff never requested the defendant to quit, vacate and deliver the khas possession of the suit property as the plaintiff stated in the plaint. The defendant is not a licensee and as such the question of revocation of licence does not arise at all and it is also false that the defendant again requested for the first time to secure some alternative accommodation and to vacate the suit property. The defendant denied the plaint's case that he sent the money in the name of his son Nirmal Das for the defendant's rehabilitation. The defendant further stated that no plot of land was purchased in the name of the defendant out of the plaintiff's money as stated in the plaint. The defendant also stated that he never wrote any letter to the plaintiff while the plaintiff was at Tinsukia of Assam requesting him to allow sometime on the plea that he is unable to vacate the suit property unless some construction is made to said purchase plot. It has been further stated by the defendant that the defendant never attempted to encroach upon the vacant place lying at the eastern side of the suit property and the plaintiff never asked the defendant to quite and vacate the suit property and question of revoking the licence does not arise here. The defendant denied that the plaintiff finally asked on 15. 7. 1986 to quit, vacate and deliver the khas possession of the suit property in favour of the plaintiff on revocation of licence. The defendant stated that the question of revocation of licence was baseless. It has been further stated by the defendant that the defendant have been living in a portion of the suit property since 1951 while he was minor under the guardianship of his father and the said father was the only earning member of the family at the material time. The plaintiff was unemployed and earning nothing and their father started living with them as tenant at the said property and he constructed structure and reconstructed it at his own cost on several times previously and thereafter he purchased the entire property of 19r, Selimpur Road and by his own money. The plaintiff was unemployed and earning nothing and their father started living with them as tenant at the said property and he constructed structure and reconstructed it at his own cost on several times previously and thereafter he purchased the entire property of 19r, Selimpur Road and by his own money. The defendant prayed for dismissal of the suit on his aforementioned averments. ( 6 ) SIMILAR was the defence made out by the defendant Sadhana Das, the sister of the plaintiff in title Suit No. 325/86. The learned trial Judge as such heard the two suits analogously and framed the following issues on the aforementioned pleadings:1. IS the suit maintainable in its present form? 2. Has the plaintiff any cause of action for the present suit? 3. Is the suit barred by limitation? 4. Has the defendant a licensee under the plaintiff without license fee? 5. Did the plaintiff revoke the leave and license of the defendant? 6. Has the defendant any right, title and interest in the suit property as claimed? ( 7 ) IS the plaintiff entitled to get a decree as prayed for? On the above pleadings the trial Court dismissed the suits and the first appellate Court below affirmed the judgments and decrees and dismissed the two suits by a single judgment and the appellate Court below affirmed the judgment and decree of both the suits and directed the defendants to make over khas possession of the suit premises within three months from the date hereof and in default to put the decree in execution. Now before entering into the merits of the instant second appeal it has to be decided as to whether there is at all any substantial question of law which is to be decided in these two appeals or if substantial question or questions of law is or are there, what are those questions. After hearing, the learned counsels for the parties in this regard, the following substantial question of law are formulated for decision in these two appeals. 1. Whether in the facts and circumstances of these two appeals the learned appellate court below made wrong tests in the application of law shifting the burden of proof of tenancy on the defendant; 2. After hearing, the learned counsels for the parties in this regard, the following substantial question of law are formulated for decision in these two appeals. 1. Whether in the facts and circumstances of these two appeals the learned appellate court below made wrong tests in the application of law shifting the burden of proof of tenancy on the defendant; 2. Whether though the pleading of tenancy was not specifically made or taken by the defendant yet by any issue by implication it was covered and the appellate court below came to a wrong finding that no plea of tenancy was taken by the defendant; 3. Though the issue of benami purchase was not taken specifically in the pleadings by the defendant yet the said plea was covered by any issue by any implication or not; 4. Whether the judgment and decree passed by the appellate court below is perverse or not. ( 8 ) ON the first point or on the first question the learned counsel for the appellant Mr. Bhattacharyya submits that in this case though in the pleading that is in the written statement it was not averred that the defendants are the tenants under the plaintiffs but by implication and in terms of the averments made in paras 14 and 15 of the written statement (mainly para 15 of the written statement) it can be gathered that the defendants pleaded tenancy when it has been stated by the defendants that originally the father was the tenant. Thereafter the property was purchased in the name of the plaintiff and originally there was a joint family and the plaintiff and the defendants used to reside under the umbrella of their father then it goes to show that tenancy initially was in the name of the father and after the death of their father the defendants inherited the tenancy and when the issue was framed regarding the status of the defendants then by implication it goes to show that the defendants claim tenancy under the plaintiff's after the purchase. Mr. Bhattacharyya, the learned counsel for the appellants relies on a decision reported in AIR 1966 SC 735 (Bhagwati Prasad v. Chandra Maul ). Mr. Mr. Bhattacharyya, the learned counsel for the appellants relies on a decision reported in AIR 1966 SC 735 (Bhagwati Prasad v. Chandra Maul ). Mr. Bhattacharyya relies on paragraph 10 of this decision which is quoted herein below:but in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both the parties to the suit are touched, though indirectly or even obscurely, in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleading would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce consideration of prejudice, and in doing justice to one party, the Court cannot do injustice to another. ? ( 9 ) MR. Bhattacharyya then submits that tenancy by inheritance need not be pleaded and it is automatic and in this regard the learned counsel for the appellant Mr. Bhattacharyya relies on a decision reported in 1987 (2) CLJ 41 (Dhanapati Dutta v. Gita Dutta and Ors. ). Mr. ? ( 9 ) MR. Bhattacharyya then submits that tenancy by inheritance need not be pleaded and it is automatic and in this regard the learned counsel for the appellant Mr. Bhattacharyya relies on a decision reported in 1987 (2) CLJ 41 (Dhanapati Dutta v. Gita Dutta and Ors. ). Mr. Bhattacharyya then placed reliance on section 109 of the Evidence Act and submitted that the learned court below wrongly shifted the burden of proof as to the relationship in between the plaintiff and defendant, on the defendant inasmuch as according to Mr. Bhattacharyya, the plaintiff is to prove that the defendant is a licensee and not a tenant. Section1 109 of the Evidence Act runs as follows:when the question is whether persons are partners, landlord and tenant or principal agent, and it has been shown that they have been acting as such, the burden of proof that they do not stand, or have ceased to stand, to each other in that relationship respectively, is on the person who affirms it?. ( 10 ) MR. Bhattacharyya also referred to the provisions of section 114 of the Evidence Act and submits that presumption goes in favour of his client and both the learned courts below made wrong application or the wrong test of law when deciding that issue. Section 114 of the Evidence Act is quoted herein below:the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case?. ( 11 ) IT is the submission of Mr. Bhattacharyya that their father Anukul Ch. Das was a tenant and he subsequently purchased the property in the benami of the plaintiff and after the death of Anukul Ch. Das they jointly inherited the property and they became joint tenants that is both the defendants became the joint tenant under the plaintiff by way of inheritance. Mr. Bhattacharyya also submits that he has already placed reliance on the decision of the Hon'ble apex Court by which he can very well say that everything need not be in the pleadings. ( 12 ) IN so far as this question is concerned, the plaintiff made a specific case that he is the owner of the property. Mr. Bhattacharyya also submits that he has already placed reliance on the decision of the Hon'ble apex Court by which he can very well say that everything need not be in the pleadings. ( 12 ) IN so far as this question is concerned, the plaintiff made a specific case that he is the owner of the property. His name as has been mutated in the Corporation Records and nowhere in the written statement or in the evidence the defendants could prove that this property is a benami property, nor they pleaded their right of tenancy under the plaintiff. Either the defendants are to stand on the footing that they are tenants by way of inheritance or they are co-sharers since the property was purchased by Anukul Ch. Das in the benami of the plaintiff and the plaintiff is nothing but a Benamdar or name lender. The plaintiff by way of pleadings and by way of evidence proved that he is the owner of the property and he never disputed the possession of the defendants regarding suit rooms or the suit property within the premises of 19r, Selimpur Road, but the possession of the defendants were and are as licensee without any license fee. The learned appellate court below rightly observed that the defendants did not file any suit under Benami Transaction Act, 1988 nor they could prove or plead tenancy under the plaintiff. Admittedly Anukul Ch. Das was the tenant in respect of 19r, Selimpur Road, but immediately, the said property is acquired or purchased, the status of tenancy of Anukul goes and if the status of tenancy goes then after the death of Anukul Ch. Das, tenancy of his son and daughter by way of inheritance does not or cannot arise. Therefore, in this question, in my opinion, the learned appellate Court below did not apply wrong tests of law and rightly put the onus on the defendants inasmuch as they claimed tenancy. In so far as the provision of section 114 of the Evidence Act it is clear that the Court is to presume on existence of certain facts but here the factum of possession of the defendants in the suit property though admitted it was a licensees as pleaded and proved by the plaintiff. In so far as the provision of section 114 of the Evidence Act it is clear that the Court is to presume on existence of certain facts but here the factum of possession of the defendants in the suit property though admitted it was a licensees as pleaded and proved by the plaintiff. In this context reliance may be placed on the decision reported in (2002)2 SCC 223 [union of India v. FID Parris (India) Ltd]. In that case the High Court proceeded of its own and declared certain rules ultra vires and the Hon'ble Supreme Court observed:-THE High Court of its own proceeded to consider the validity of the rule and ultimately held that it was not in consonance of the relevant provision of the Railways Act, 1890 and consequently held that it was ultra vires. This view is contrary to the settled law that a question, which did not form part of the pleadings or in respect of which the parties were not a variance and which was not the subject matter of any issue, would not be decided by the Court?. ( 13 ) IN another decision reported in 2000 vol. 6 SCC 604 (Sashikanta Ruia v. Indo Minerals), the Hon'ble apex Court observed that High Court is duty bound to consider and base its conclusions on the relevant pleadings and findings thereon of the first appellate Court, reached after the appreciation of evidence. ( 14 ) IN that view of the matter, the first question is answered against the appellant and it is observed that the learned appellate Court below did maker proper test and come to proper finding. ( 15 ) IN so far as the second question is concerned it is more or less related to the answer of the first question. Of course, there was an issue framed by the trial court that is, what is the status of the defendant. Obviously this question must arise in view of the fact that the plaintiff pleaded and proceeded on the footing and also prayed for eviction on ground that the defendants are licensee without license fees and after revocation of the license they are to go. Obviously this question must arise in view of the fact that the plaintiff pleaded and proceeded on the footing and also prayed for eviction on ground that the defendants are licensee without license fees and after revocation of the license they are to go. Since nowhere the defendants pleaded and/or proved that they were the tenants or co-sharers, status cannot be of the defendants but as licensee or trespasser but here from the pleadings and proof it appears that the case of trespasser has neither been made out by the plaintiff nor been made out by the defendants. Therefore, conclusion obviously comes that the defendants are licensees without license fees. In such circumstances and on such pleadings or proof the answer of the second question also goes against the appellant and in my view when at all no case has been made out in the pleadings or proof the appellant cannot say that by implication it has been proved. In the instant case neither by implication nor on direct consideration it gives out that the defendants were the tenants in respect of any portion or co-sharer in respect of any other portion. ( 16 ) IN so far as the third question on point of law is concerned the defendants are duty bound to plead or prove that the plaintiff was a Benamdar and the transaction of purchase by their father Anukul Ch. Das was a benami transaction and in this regard the learned appellate Court below also rightly pointed out that the defendants did not file any suit under the Benami Transaction Act. The trial Court is to frame the issue on the rival pleadings of the parties but here no issue on Benami could be framed by the trial court since the case was not proceeded by the defendants on the footing that the plaintiff was the Benamdar in respect of the premises No. 19r, Selimpur Road. In that view of the matter neither the Court could frame issue nor the Court was called upon to decide the question of benami and this aspect also goes against the appellant-defendant. In that view of the matter neither the Court could frame issue nor the Court was called upon to decide the question of benami and this aspect also goes against the appellant-defendant. ( 17 ) IN so far as the question of perversity is concerned in my opinion that perversity on record is to be proved and in this regard I am tempted to refer to a decision of the Hon'ble Supreme Court reported in (2000)2 SCC 213 (M. G. Hegde v. Vasudev D. Hegde) where the Hon'ble apex Court observed (In a second appeal jurisdiction is limited. Words ?prima facie perverse and error apparent on the face of record? are not a 'mantra' and cannot be employed to permit High Court to do in Second Appeal what the law enjoins it not to do ). That apart here both the Courts below on consideration of evidence came to a concurrent finding on facts and in this regard the Hon'ble Supreme Court in its decision reported in (2000)10 SCC 244 (M. Nadar Kesavan Nadar v. Narayanam Nadar Kunjan Nadar) observed that even if the concurrent finding of fact was wrong, High Court erred in disturbing the same when it had not found the same was not perverse nor was based on no evidence. Same view has been adopted by the Hon'ble Supreme Court in the decision reported in JT 2001 (5) SC 380 (Dinanath v. Puranlal) and (2000)5 SCC 652 (State of Rajasthan v. Harphool Singh) as well as in the decision reported in (2001)9 SCC 521 (Pakerappa Rai v. Setamma Hengsu ). ( 18 ) IN view of the discussions made above this Court does not find any merit in these two Second Appeals and the substantial question of law framed hereinabove are answered against the appellant. The judgments and the decrees passed by the appellate Court below in two appeals are hereby affirmed and the two instant Second Appeals are dismissed. The parties are to bear their own costs. Let the decrees be drawn up accordingly. Let the L. C. R. be sent down to the Courts below forthwith. Appeal dismissed.