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2005 DIGILAW 111 (CAL)

TAPAS CHAKRABORTY v. RAMHARI MONDAL

2005-02-16

JYOTESH BANERJEE

body2005
JYOTESH BANERJEE, J. ( 1 ) 1. The present appeal from the appellant decree is directed against judgment dated 5th of July 1994 and the decree thereof passed in T. A. No. 74 of 1993 by the Asstt. District Judge, Baruipur, through which the learned judge dismissed the appeal and affirmed the judgment and decree passed by the Munsif, 2nd Court, Baruipur in T. S. No. 188 of 1984. ( 2 ) THE case of the plaintiffs/respondents in brief is that the defendant no. 1 was a monthly tenant at the rate of Rs. 18/- payable according to bengali Calendar month under the plaintiffs. The defendant No. 1 defaulted in payment of rent since the month of Falgun, 1387 B. S. It was also alleged that he sublet the suit premises to defendant No. 2 without the knowledge and consent of the plaintiffs. The plaintiffs also reasonably required the suit premises for their own use and occupation. For the aforesaid reasons, the plaintiffs served a notice under Section 13 (6) of the West Bengal Premises tenancy Act to the defendant No, 1 by registered post with A/d, who refused to accept the same and when such defendant failed to vacate and quit in terms of the notice the plaintiffs were compelled to file the suit. Defendant no. 2 Tapan Chakraborty contested the suit by filing Written Statement. His case is that after the disposal of T. S. No. 121 of 1984 of the 1st Court of Munsif, Baruipur, for eviction of the tenant the plaintiff No. 1 Ram Hart mondal on receiving from the defendant No. 2, a sum of Rs. 5,000/- as selami created a newtenancy in favour of the defendant a monthly rent of rs. 19/- according to English Calendar and granted rent receipt. Therefore, defendant No. 2 was not a sub-tenant underdefendant No. 1 as claimed by the plaintiffs. So the plaintiffs were not entitled to get any decree for eviction as defendant No. 2's tenancy was never determined. The learned trial Court found that it was not the case of the contesting defendant No. 2 that the defendant No. 1 was ever surrendered or relinquished his tenancy in favour of the landlords. The learned trial Court further found from Ext. The learned trial Court found that it was not the case of the contesting defendant No. 2 that the defendant No. 1 was ever surrendered or relinquished his tenancy in favour of the landlords. The learned trial Court further found from Ext. 4, a certified copy of the judgment in the earlier ejectment suit No. T. S. 121 of 1984 that the plaintiffs failed to get a decree for eviction of the defendants due to the defect in the notice under Section 13 (6) of the W. B. Premises Tenancy Act and in that case the plea of surrender of tenancy in the month of June, 1975 by defendant Basudeb Mondal was turned down on the ground that relinquishment of tenancy could not be a unilateral transaction and it could only be in favour of the lessor by mutual agreement between them. It was held that the surrender must be. by way of delivery of possession by the tenant to the landlord. The learned trial Court considered the two rent receipts marked Exts. B and B (1) and observed that if those documents were genuine rent receipt granted by plaintiff No. 1in favour of the defendant no. 2 even then it could not be said that a valid tenancy was created by those rent receipts in favour of defendant No. 2. After considering the entire relevant facts and circumstances of the case, the learned trial Court further held that the status of the contesting defendant No. 2 in relation to the suit premises was nothing but that of a sub-tenant. Thereafter on consideration of the other evidence he further found that the notice in question was legal, valid and sufficient and the same was duly served upon the tenant that is to say defendant No, 1. He also found that in the facts and circumstances of the case were able to establish that they were entitled to get a decree of eviction on the grounds of sub-letting and default and the defendant was not entitled to get protection under Section 17 (4) of the said Act. The learned court thereafter granted a decree for recovery of the vacant possession of the suit premises after evicting the defendant from such premises. The learned appellate Court below found that there was material contradiction regarding payment of Selami of Rs. 5,000/- (five thousand) and regarding the granting of rent receipts Exts. The learned court thereafter granted a decree for recovery of the vacant possession of the suit premises after evicting the defendant from such premises. The learned appellate Court below found that there was material contradiction regarding payment of Selami of Rs. 5,000/- (five thousand) and regarding the granting of rent receipts Exts. B and B (1 ). He came to the ultimate conclusion that the tenancy of the defendant No. 1 had not been extinguished and that still subsisted and in that background there could not be any fresh tenancy in favour of the defendant No. 2 as claimed by the contesting defendant. He further found that on consideration of the material evidence on record, it was established that defendant No. 1 the tenant was a defaulter and sublet the suit premises to the defendant No. 2. He dismissed the appeal by holding that the learned Munsif correctly decided point in issue and he had no reason to interfere with such judgment. ( 3 ) AT the time of admission of the appeal, the learned Division Bench did not formulate any question of law, for consideration in the second appeal. At a later state on July 16, 2002 the learned Single Judge who first took the appeal for hearing and formulated the following question as the substantial question of law to be decided in the appeal:- whether or not the tenancy of the defendant No. 1 had been determined by virtue of the provisions of Section 111 (f) of the Transfer of Property Act. At the time of final hearing of the appeal the said point has been recast by adding the following words : "and if so whether the instant suit is maintainable. " ( 4 ) FROM the question of law formulated in the present appeal, it is evident that the decision of the appeal hinges upon the question whether the tenant against whom respondent/landlord filed the suit for eviction and got the decree of eviction, had impliedly surrendered the tenancy as contemplated under Section 111 (f) of the T. P. Act. In the instant case, it is not disputed that landlord/respondent filed the suit for eviction of the tenant/ defendant No. 1 also on the ground that he had subler the tenancy to defendant No. 2. The tenant, the defendant No. 1 never contested the suit. In the instant case, it is not disputed that landlord/respondent filed the suit for eviction of the tenant/ defendant No. 1 also on the ground that he had subler the tenancy to defendant No. 2. The tenant, the defendant No. 1 never contested the suit. The alleged sub-tenant contested the suit with the plea that there was an implied surrender from the side of the tenant/defendant No. 1 and there was a new tenancy created in favour of the defendant No. 1. From the judgment of the learned Munsif who tried the suit, it transpires that the plaintiff filed the certified copy of the judgment in T. S. No. 121/84. That suit was for eviction of the defendant No. 1 from the said premises and the suit was ultimately dismissed due to defect in the notice under Section 13 (6) of the West Bengal Premises Tenancy Act. The learned Munsif pointed out that in the earlier suit, the plea of surrender advanced by the defendant No. 2 was turned down by the Court on the ground that the surrender coufd only be in favour of the lessor by mutual agreement between the lessor and lessee and such surrender must be by way of delivery of possession by the tenant to the landlord. The learned trial Court observed that there was no pleading of relinquishment or surrender of the tenancy by defendant No. 1, the original tenant to the plaintiffs/landlords. It further transpires from the judgments of the Courts below that the contesting defendant No. 2 who is the appellant here mainly based his case regarding surrender and fresh tenancy on two rent receipts marked Exts. B and B (1 ). The learned trial court decided the question on the basis of the preponderance of the probability of the plaintiffs case. It observed that it was really improbable if not impossible that the landlords who initiated a proceeding for eviction and for some technical reasons was not successful in the first attempt, would create a new tenancy in favour of sub-tenant and that too at an ignorable imcreased rate of rent. Considering all these facts and circumstances the said Court came to the ultimate finding that the probability of disputed rent receipts Ext. B series being forged rent receipts could not be ruled out. The learned Court found that the tenancy of the defendant no. Considering all these facts and circumstances the said Court came to the ultimate finding that the probability of disputed rent receipts Ext. B series being forged rent receipts could not be ruled out. The learned Court found that the tenancy of the defendant no. 1 had not been extinguished and it was still subsisting when the new tenancy in favour of defendant No. 2 was alleged to be created and no fresh tenancy could be established in favour of defendant No. 2 by merely producing two rent receipts as stated above. ( 5 ) BEFORE this Court, the learned Counsel forthe appellant has relied on the two rent receipts granted by one of the plaintiff/respondents and has contended that the handwriting expert in his evidence as D. W. 3 clearly stated that signature on those documents belong to plaintiff No. 1 and the courts below had not enough reason to come to a conclusion that in the facts and circumstances of the case the evidence of the handwriting expert should not be accepted. It is the contention of the learned Counsel that granting of the rent receipts by one of the plaintiffs clearly established the case of the contesting defendant No. 2, the appellant here that there was an implied surrender by the previous tenant, the defendant No. 1 and creation of a new tenancy in favour of the appellant by acceptance of rent, in support of his contention to this effect, the learned Counsel has placed his reliance on the decision of the Apex Court in the case of T. K. Lathika v. Seth Karsandas Jamnadas reported in 1999 (6) SCC 632 . He further has placed his reliance on a case of the Apex Court in the case of P. M. C. Kunhiraman Nair v. C. R. Naganatha Iyer and Ors. reported in AIR 1993 SC 307 . Learned Counsel for the respondent on the other hand has submitted that both the Courts below has assigned sufficient reasons why they were not in a position to accept the evidence of the handwriting expert. Learned counsel has contended that the Courts below rightly come to a conclusion that, in the facts and circumstances of the case there was no implied surrender and creation of a fresh tenancy in favour of the appellant. Learned counsel has contended that the Courts below rightly come to a conclusion that, in the facts and circumstances of the case there was no implied surrender and creation of a fresh tenancy in favour of the appellant. He has pointed our that it was the specific case of the defendant No. 2/appellant that a fresh tenancy in favour of such defendant was created after taking a lump sum amount of Rs. 5,000/ -. While both the Courts below found that there was no legal evidence regarding the payment of Rs. 5,000/- as selami as claimed by the appellant, the alleged increase of rent was negligible and no man of ordinary prudence would agree to create a new tenancy, after initiating a proceeding for eviction of his tenant and after bringing the suit for eviction for the second time when the former suit was dismissed on the ground of defect in the notice. It is also contended by the learned Counsel that in case of relinquishment (by the original tenant defendant No. 1), the same cannot be a unilateral transaction. The relinquishment only can be made in favour of the lessor by mutual agreement between the lessor and lessee. In support of such contention, the learned Counsel has referred a decision of this Court, in the case of Sukesh Chandra Ghose v. Sm. Bindu basini Debya and Ors. reported in 1981 (II) CHN 177. ( 6 ) IN the case of 7. K. Lathika v. Seth Karsandas Jamnadas (supra) in Paragraph 12 of the judgment, the Apex Court made the following observation regarding the doctrine of implied surrender of which the learned counsel for the appellant has placed much reliance :- "the principle which governs the doctrine of implied surrender of lease is that when a certain relationship existed between two parties in respect of a subject-matter and a new relationship has come into exisence regarding the same subject-matter, the two sets cannot co- exist, being inconsistent and incompatible between each other i. e. if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-a-vis the erstwhile demise and then judged whether there was termination of the old jural relationship by implication. " from above, it is clear that the Hon'ble Court opined that when in respect of a subject-matter a certain relationship existed between the two parties and a new relationship came into existence regarding the same subject- matter, the two sets cannot co-exist being inconsistent and incompatible between each other. In that case, the original owner of the suit properly executed a gift deed in favour of his daughter, the appellant. Within one year of such deed of gift, the appellant filed a proceeding for eviction of a tenant regardless of the third proviso to Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 which prescribed that a landlord whose right to recover possession arose under an instrument of transfer inter vivos would be entitled to apply such possession only after the expiry of one year from the date of instrument. The contention of the appellant was that this moratorium period did not apply to her as the tenant had executed a fresh lease in her favour on 18. 8. 1980 that is to say soon after the deed of gift in her favour. The appeal of the landlord ultimately came before the Apex court and the Apex Court in the aforesaid circumstances observed as above. The said case is distinguishable from this case. Here it is not an admitted position that the landlord of the suit premises created a new tenancy in favour of the subtenant defendant No. 2 who is the appellant here. Therefore, i am of the opinion that this reported decision will not be helpful to the appellant. In the case of P. M. C. Kunhiraman Nairv. C. R. Naganatha Iyer a Ors. (supra), the Apex Court observed that whether the plaintiffs had a subsisting lease hold interest in the property involves the question whether they had surrendered the said rights. The case of the appellant there was that the plaintiffs had impliedly surrendered their leasehold rights when they executed the agreement (Ex. C. R. Naganatha Iyer a Ors. (supra), the Apex Court observed that whether the plaintiffs had a subsisting lease hold interest in the property involves the question whether they had surrendered the said rights. The case of the appellant there was that the plaintiffs had impliedly surrendered their leasehold rights when they executed the agreement (Ex. B3) dated March 22, 1955 and thereafter a new tenancy was created in favour of a person which was assigned by that person in favour of the appellant. In that background, the Hon'ble Court in paragraph-10 of the judgment observed that the implied surrender may takes place by directing the occupier to acknowledge the landlord as his landlord that is to say to attorn to the landlord and such attornment is a sufficient delivery of possession by the tenant to the landlord. In the instant case, there is nothing to show that there was any direction upon the alleged tenant/appellant by the landlords to attorn them as his landlord. Therefore, the reported case is also not helpful to establish the argument advanced by the learned Counsel that simply by virtue of two rent receipts, the Courts below ought to have decided that a fresh tenancy was created in favour of the appellant. In the case of Sukesh Ch. Ghose v. Bindu Basini Debya and ors. (supra) argument was placed before this Court that when the tenant left the suit premises without any evidence to return or reoccupy the same and he not having contested the present suit at any stage of the trial or appeal, it should be held that the tenant surrender the suit premises and there was termination of his tenancy prior to the institution of the present suit. But that argument was not acceptable as seen in such decision. It has been held there that in case of relinquishment it cannot be an unilateral transaction, it can only be in favour of the lessor by a mutual agreement between them. ( 7 ) THUS, it is evident from the total evidence, which has been considered by the Courts below that there was no relinquishment of the earlier tenancy by defendant No. 1 and there was no implied surrender within the meaning of Section 111 (0 of the T. P. Act. ( 7 ) THUS, it is evident from the total evidence, which has been considered by the Courts below that there was no relinquishment of the earlier tenancy by defendant No. 1 and there was no implied surrender within the meaning of Section 111 (0 of the T. P. Act. That being so,the suit against the tenant on the specific grounds as noted by the Courts below was perfectly maintainable as the defendant No. 2 had no independent right to contest the suit. In the result, the instant appeal fails and it is dismissed. But having regard to the facts and circumstances I make no order as to costs. Let the l. C. R. along with a copy of this judgment be sent down to the trial Court below for information and necessary action.