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2004 DIGILAW 347 (CAL)

ASIS KUMAR MITRA v. PRADIP DUTTA

2004-05-18

JYOTESH BANERJEE, MAHEMMAD HABEEB SHAMS ANSARI

body2004
JOYTOSH BANERJEE, J. ( 1 ) THE plaintiff in T. S. 1820 of 1993, Asis Kumar mitra filed the suit for a declaration that he is the monthly tenant under the defendants in respect of the suit room described in the schedule of the plaint. His case was that he and members of his family were inducted by the shebaits of the Debutter Estate of Lakshmi Thakurani, an idol being represented by its shebaits Prakash Kumar Ghosh (defendant No. 2) and Late Prabhash Kumar ghosh at a monthly rental of Rs. 50/- payable according to English clalender month. The father of the defendant No. 3 Prabhash used to collect rent from the plaintiff, who was a near relation of Prabhash. It was further alleged that the plaintiff had his own electric meter in the said premises with the consent of the shebaits. Plaintiff and the members of his family were the voters and their names are still appearing in the Electoral Rolls as the voters in that locality. It is the further case of the plaintiff that he used to pay the rent without any rent receipt as the landlords were his close relatives. But two months prior to the institution of the suit, the landlord refused to accept the rent, by informing that the shebaits had already sold away the property to defendant No. 1. It is further alleged that on 8. 8. 93 all the defendants threatened the plaintiff and members of his family with dire consequences, to compel them to leave the house. In this background the plaintiff was constrained to file the suit. ( 2 ) TITLE Suit No. 2375/93 was filed by the defendant No. 1 of the earlier suit, namely, Pradip Dutta against the plaintiff of that suit praying for recovery of possession on the allegation that he purchased the premises No. 4a, Krishna ram Bose Street, Calcutta-700 004 by a registered deed of conveyance dated 25. 6. 93 from the trustees Prakash Kumar Ghosh and Prabhash Kumar Ghosh. The defendant was the nephew of the trustees who granted permissive right to use a portion of the premises, some time in the year 1973 as a licensee under the said trustees on a clear understanding that the defendant would vacate the said premises within a very short time. 93 from the trustees Prakash Kumar Ghosh and Prabhash Kumar Ghosh. The defendant was the nephew of the trustees who granted permissive right to use a portion of the premises, some time in the year 1973 as a licensee under the said trustees on a clear understanding that the defendant would vacate the said premises within a very short time. Subsequently, in the month of January, 1975 when the said trustees revoked the said licence and called upon the defendant to vacate the suit premises, the said defendant in writing agreed to vacate the said premises on the expiry of the month of February, 1975. It is further alleged that since then, from time to time on some plea or other the defendant failed and neglected to vacate the suit premises and sought for extension of time from the said trustees for the purpose of vacating the same trustees in view of the close relationship extended such time. On April, 1977, the defendant again agreed to vacate the suit premises on the expiry of the month of July, 1977. But this time too he failed and neglected to vacate the suit premises. . Before sale of the aforesaid house, the trustees called upon the defendant to vacate the suit premises but instead of vacating the same, on coming to know about the sale of the aforesaid premises in favour of the present plaintiff by the then trustees, the defendant with some ulterior motive to claim a tenancy right in respect of the suit premises sent a money order of Rs. 50/- to one of the trustees, namely, Prakash Kumar Ghosh who refused the said money order, and clearly informed the defendant that they had sold the said property to the present plaintiff. It is further alleged that on 25. 8. 93 the present plaintiff also issued a letter to the defendant calling upon him to deliver the vacant possession of the suit premises, since the said licence had already been revoked. But in spite of receipt of such letter, the plaintiff sent a money order of Rs. 50/- to the plaintiff making a futile attempt to establish a tenancy right in respect of the suit property. Hence the suit. ( 3 ) BOTH the suits were contested by the respective defendant on a written statement denying the material allegations and asserting their respective cases as seen above. 50/- to the plaintiff making a futile attempt to establish a tenancy right in respect of the suit property. Hence the suit. ( 3 ) BOTH the suits were contested by the respective defendant on a written statement denying the material allegations and asserting their respective cases as seen above. The learned Judge 10th Bench of the City Civil and Sessions Court, calcutta by a common judgement dated 18. 12. 2000 dismissed T. S. No. 1820/ 93 filed by the appellant and decreed T. S. No. 2375/93 filed by the respondent, passing a decree for recovery of khas possession against the appellant in respect of the properties described in the schedule of the plaint. A decree of damages at the rate of Rs. 30/- per day from the date of decree till the defendant gives up possession of the suit property has also been passed. ( 4 ) BEING aggrieved by such judgement, the appellant has come up before this Court and only question for our determination in this appeal is whether in the facts and circumstances of the case, the appellant is a tenant or a licensee in respect of the suit property? ( 5 ) WE have already seen that appellant Asis Kumar Mitra claimed through his suit that he was inducted as a tenant in respect of the property by the trustees of the trust at a monthly rent of Rs. 50/- payable according to English calendar month. It is his further case that he used to pay the rent without any rent receipt in view of the fact that one of the trustees, who inducted him as a tenant in respect of the suit property, was his near relative. On the other hand, it is the case of the respondent Pradip Dutta, the admitted present owner of the house at premises No. 4a, Krishna Ram Bose Street, Calcutta-700 004 that the said Asis Kumar Mitra was a mere licensee who was allowed to occupy the suit premises, but who refused to vacate the same in spite of revocation of licence. It transpires from the impugned judgement that through issue No. 3, the learned judge considered the question whether the said Asis Kumar Mitra was a tenant or a licensee in respect of the suit premises at 4a, Krihsna Ram Bose Street, calcutta-700 004. It transpires from the impugned judgement that through issue No. 3, the learned judge considered the question whether the said Asis Kumar Mitra was a tenant or a licensee in respect of the suit premises at 4a, Krihsna Ram Bose Street, calcutta-700 004. It further transpires that on consideration of the entire evidence on record he came to a firm finding that the appellant was a licensee and in order to come to such a conclusion the learned Judge has laid stress on two very relevant important circumstances like there is no document which could be produced by the said Asis Kumar Mitra in support of his claim that he was occupying the suit premises as a tenant. In this respect, the learned Judge has pointed out that the appellant started to reside in the suit premises since 1973 but according to his own admission in his evidence he never demanded any rent receipt from his landlords. Coupled with this, the learned Judge also considered the evidence of PW. 2 Prakash Kumar Ghosh, maternal uncle of the appellant, who in his evidence has clearly stated that Asis had been a licensee in respect of the suit premises and the said licence had already been revoked. He was asked to vacate the suit premises after the house in question was transferred by sale to the respondent Pradip Dutta. The learned Judge also pointed out that a notice issued by the plaintiff Pradip Dutta in T. S. No. 2375/93 was admitted in evidence without objection and marked Ext.-3. Ext-3 has clearly indicated that through such notice, licence in favour of Asis Kumar mitra was revoked and the said notice was accepted by the defendant of the suit Asis Kumar Mitra, who did not raise any objection. The learned Advocate for the appellant has tried to assail the judgement of the learned Court below by contending that whether a person has been inducted as a licensee or a tenant, depends upon intention of the parties, and to determine the same the surrounding circumstances and the conduct of the parties have to be borne in mind. He has referred to us a decision of the Apex Court in the case of m. N. Clubwala and Anr. vs. Fida Hussain Saheb and Ors. , reported in AIR 1965 sc 610 . He has referred to us a decision of the Apex Court in the case of m. N. Clubwala and Anr. vs. Fida Hussain Saheb and Ors. , reported in AIR 1965 sc 610 . It is contended by the learned Advocate that the appellant admittedly has got the exclusive possession over the suit property and has got separate electric meter. The names of the appellant and the members of his family appear in the Electoral Roll disclosing the address of the suit premises. It is his contention all these circumstances should lead us to come to a clear conclusion that the appellant is a tenant in respect of the suit premises and not a licensee. On the other hand, the learned Advocate for the respondent has supported the reasons furnished by the learned Court below in order to come to the final conclusion that the appellant was a licensee in respect of the suit premises. ( 6 ) IN the reported case in as mentioned above, the Apex Court has clearly laid down that, in the absence of any written agreement between the parties, the intention of the parties must be inferred from the circumstances and conduct of the parties. But exclusive possession of the person claiming the tenancy right, alone would not help him, in this respect. ( 7 ) IT is well-settled that tenancy is the transfer of a right to enjoy the premises; whereas a licence is a privilege to do something on the premises which otherwise would be unlawful. The transaction is tenancy, if it grants an interest in the property. It is a licence if it gives a personal privilege with no interest in the property. In the case of Rajbir Kaur and Anr. vs. S. Chokesiri and Co. , reported in 1989 (1) SCC 19 , the question before the Hon'ble Apex Court was whether the tenant sublet a portion of his tenancy or not. When the plaintiff made such an allegation, the defence plea was that the person in possession was a mere licensee. In the reported case, the Apex Court came to a conclusion that the answer depended upon the intention of the parties and such intention had to be ascertained on a consideration of all the relevant provisions in the agreement. The Division Bench of our High Court, in the case of Shyam Sundar Ganeriwall and Ors. In the reported case, the Apex Court came to a conclusion that the answer depended upon the intention of the parties and such intention had to be ascertained on a consideration of all the relevant provisions in the agreement. The Division Bench of our High Court, in the case of Shyam Sundar Ganeriwall and Ors. vs. Delta International Ltd. and Anr. , made the following relevant observation:"exclusive possession of a property would prima facie constitute a tenancy subject of course to the intention of the parties which has to be gathered not only from reading the contents of the agreement as a whole, the circumstances attending thereto but also the conduct of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . even the conduct of the parties contrary to the term of the agreement has been taken into consideration for the purpose of arriving at the real intention of the parties". ( 8 ) IF we consider the question at issue in this appeal in the light of the above decisions it would appear that in the instant case, the appellant wants to establish his case only on the basis of his exclusive possession over the suit property. The other circumstances which have been disclosed in the evidence like the appellant having an electric meter in the house in his own name to draw electricity and names of his family members with the address of the suit property in the Electoral Roll are of little consequence. It is not disputed that the appellant came to reside in the house in the year, 1973. In the instant case, when the appellant has specifically alleged that he was inducted as a tenant and not as a licensee the initial onus is on him to establish the same. But the appellant has failed to produce the most important document regarding tenancy that is to say rent receipt on the plea that he used to pay the rent to the landlord without any rent receipt. But the appellant has failed to produce the most important document regarding tenancy that is to say rent receipt on the plea that he used to pay the rent to the landlord without any rent receipt. We have already seen that appellant has been occupying the suit premises for a long period and it would be too much to reach at a conclusion that a tenant would remain silent for so long a period if he has denied any receipt inspite of payment of rent. There is no explanation from the side of the appellant why he failed to take any step under section 25 (2) of the West Bengal Premises tenancy Act, 1956 when the landlord failed to grant any rent receipt in spite of payment of rent as alleged by him. It is the case of the appellant that he was inducted in the house by one of his close relatives. If that is so, there is no reason for the appellant to feel shy of demanding rent receipt on payment of rent for the purpose of securing his possession over the suit property. Coupled with this relevant circumstance, we find from the impugned judgement that the maternal uncle of the appellant Prakash Babu (PW. 2) in his evidence disclosed that appellant was inducted as a licensee. The learned Trial Judge has also pointed out that in spite of receipt of notice Ext-3. revoking the licence, the appellant accepted the same without raising any objection. ( 9 ) ALL these relevant facts and circumstances, will go to point out that appellant was inducted merely as a licensee in respect of the suit property. Therefore, the learned Trial Judge has rightly decreed T. S. No. 2375/93 and passed a decree for recovery of khas prossession against the appellant and dismissed the other suit, namely, T. S. No. 1820 of 1993 wherein the appellant prayed for a declaration that he was a tenant in respect of the suit property. ( 10 ) IN the result, both the appeals must fail. Thus appeal Nos. 164 and 165 of 2002 be dismissed. But having regard to the circumstances we make no order as to cost. The judgement and decree passed by the learned Court below are hereby confirmed. Appeals dismissed.