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2005 DIGILAW 1615 (SC)

AMAR KUMAR SEN v. GITA RANI DASS

2005-10-05

ALTAMAS KABIR, ASHOK BHAN

body2005
ORDER 1. THE APPELLANT HAS PREFERRED THIS APPEAL, BY GRANT OF SPECIAL LEAVE, AGAINST THE JUDGMENT AND ORDER DATED 11;-5-2001 PASSED BY THE HIGH COURT OF JUDICATURE AT CALCUTTA IN APPEAL FROM APPELLATE DECREE NO. 101 OF 1995. THE HIGH COURT BY THE IMPUGNED JUDGMENT HAS ALLOWED THE SECOND APPEAL FILED BY PLAINTIFF-RESPONDENTS 1 TO 3 AND DECLARED THE DECREE PASSED IN TITLE SUIT NO. 57 OF 1984 AS ILLEGAL AND INVALID AND NOT BINDING UPON RESPONDENTS 1 TO 3. THE APPELLANT LANDLORD, HEREINAFTER REFERRED TO AS THE APPELLANT, HAS BEEN RESTRAINED FROM EXECUTING THE EJECTMENT DECREE PASSED IN TITLE SUIT NO. 57 OF 1984. 2. S.N. DAS, THE DECEASED TENANT NOW REPRESENTED BY THE PLAINTIFF RESPONDENTS 1 TO 3 AND HIS ONLY SON, RESPONDENT 4 WAS INDUCTED AS A TENANT IN THE YEAR 1951 BY SHRI ANIL KUMAR SEN, PREDECESSOR-IN-INTEREST OF THE APPELLANT WITH RESPECT TO THE SUIT PREMISES AT 190-A, SARAT BOSE ROAD, PS TOLLYGUNGE, CALCUTTA 700 029 AT A MONTHLY RENT OF RS 60. S.N. DAS EXPIRED ON 14-4-1976. THE APPELLANT INSTITUTED TITLE SUIT NO. 57 OF 1984 SEEKING EVICTION OF RESPONDENT 4 FOR POSSESSION OF THE SUIT PREMISES IN THE COURT OF 3RD ADDITIONAL MUNSIF AT ALIPORE IN WHICH AN EJECTMENT DECREE WAS PASSED ON 28-6-1985 ORDERING VACATION OF THE SUIT PREMISES WITHIN 90 (NINETY) DAYS AND IF NOT COMPLIED WITH, THEN THE DECREE WAS TO BE EXECUTED THROUGH A COURT OF LAW. THE APPEAL FILED BY RESPONDENT 4 AGAINST THE EJECTMENT DECREE WAS DISMISSED. 3. ON 13-5-1986, PLAINTIFF-RESPONDENTS 1 TO 3 I.E. THE WIFE OF THE DECEASED AND HIS TWO DAUGHTERS FILED TITLE SUIT NO. 187 OF 1986 IN THE COURT OF 3RD MUNSIF JUDGE, ALIPORE FOR DECLARATION THAT THE DECREE PASSED IN TITLE SUIT NO. 57 OF 1984 BEHIND THEIR BACKS (THEY WERE NOT MADE PARTY RESPONDENTS IN TS NO. 57 OF 1984) WAS ILLEGAL AND INVALID AND NOT BINDING UPON THEM AND FOR A DECREE FOR PERMANENT INJUNCTION RESTRAINING THE APPELLANT FROM EXECUTING THE EJECTMENT DECREE IN RESPECT OF THE SUIT PREMISES AGAINST RESPONDENT 4. 4. IN THE WRITTEN STATEMENT FILED IN TITLE SUIT NO. 187 OF 1986, THE APPELLANT TOOK THE STAND THAT THE TENANCY WITH RESPECT TO THE SUIT PREMISES HAD BEEN TRANSFERRED BY THE ORIGINAL TENANT S.N. DAS DURING HIS LIFETIME IN THE NAME OF HIS ONLY SON, RESPONDENT 4. 4. IN THE WRITTEN STATEMENT FILED IN TITLE SUIT NO. 187 OF 1986, THE APPELLANT TOOK THE STAND THAT THE TENANCY WITH RESPECT TO THE SUIT PREMISES HAD BEEN TRANSFERRED BY THE ORIGINAL TENANT S.N. DAS DURING HIS LIFETIME IN THE NAME OF HIS ONLY SON, RESPONDENT 4. THAT RESPONDENT 4 WAS NOT ONLY OCCUPYING THE SAID PREMISES BUT WAS ALSO PAYING RENT ON IT. THAT RESPONDENTS 1 TO 3 NEVER EXERCISED ANY TENANCY RIGHTS WITH RESPECT TO THE SAID PREMISES NOR WERE THEY ENTITLED TO THE SAME. 5. THE TRIAL COURT, AFTER RECORDING EVIDENCE AND HEARING ARGUMENTS OF THE COUNSEL FOR THE PARTIES, DISMISSED THE SUIT ON 13-1-1994. 6. AGGRIEVED AGAINST THE JUDGMENT AND DECREE PASSED BY THE TRIAL COURT, RESPONDENTS 1 TO 3 FILED TITLE APPEAL NO. 64 OF 1994 IN THE COURT OF 5TH ASSISTANT DISTRICT JUDGE, ALIPORE. THE FIRST APPELLATE COURT DISMISSED THE APPEAL ON 28-9-1994. 7. BEING AGGRIEVED BY AND DISSATISFIED WITH THE JUDGMENTS AND DECREE PASSED BY THE COURTS, BELOW, RESPONDENTS 1 TO 3 FILED SECOND APPEAL NO. 101 OF 1995 IN THE HIGH COURT, WHICH HAS BEEN ALLOWED BY THE IMPUGNED JUDGMENT. AT THE TIME OF ADMISSION, A NUMBER OF QUESTIONS OF LAW WERE FRAMED BUT AT THE TIME OF ARGUMENTS ONLY QUESTIONS 8 AND 9 WERE PRESSED, WHICH ARE TO THE FOLLOWING EFFECT: "VIII. FOR THAT IN THE ABSENCE OF SURRENDER BY THE ENTIRE BODY OF CO-TENANTS, THE TENANCY CONTINUES AND THE DECREE IS NOT BINDING ON THE PLAINTIFFS. IX. FOR THAT THE BURDEN IS ON THE LANDLORD TO PROVE THAT THE ORIGINAL TENANCY CEASED TO CONTINUE AND THE COURT OF APPEAL BELOW FAILED TO APPRECIATE SUCH LEGAL POSITION." 8. THE HIGH COURT CONCLUDED THAT UNDER THE WEST BENGAL PREMISES TENANCY ACT, 1956, HEREINAFTER REFERRED TO AS "THE ACT", THE TENANCY WAS INHERITABLE AND AFTER THE DEATH OF S.N. DAS, RESPONDENTS 1 TO 3 AND RESPONDENT 4 INHERITED THE TENANCY RIGHTS. AS PER SECTION 14 OF THE ACT, THE TENANCY RIGHTS COULD BE TRANSFERRED ONLY WITH THE WRITTEN CONSENT OF THE LANDLORD AND SINCE THE LANDLORD HAD FAILED TO SHOW THAT HE HAD GIVEN HIS WRITTEN CONSENT TO TRANSFER THE TENANCY RIGHTS IN FAVOUR OF RESPONDENT 4 THE TRANSFER WAS NOT ACCEPTED. IT WAS HELD THAT THE BURDEN OF PROVING THAT THE ORIGINAL TENANT. IT WAS HELD THAT THE BURDEN OF PROVING THAT THE ORIGINAL TENANT. CEASED TO CONTINUE AS A TENANT AND THAT THE TENANCY HAD BEEN TRANSFERRED WAS ON THE APPELLANT LANDLORD AND SINCE THE APPELLANT LANDLORD HAD FAILED TO PROVE THE TRANSFER OF THE TENANCY THE SUIT FILED BY THE RESPONDENT PLAINTIFFS MUST SUCCEED AND ACCORDINGLY THE HIGH COURT IN VIEW OF THE FINDINGS ARRIVED AT ACCEPTED THE APPEAL, SET ASIDE THE JUDGMENTS AND DECREE PASSED BY THE COURTS BELOW AND DECREED THE SUIT IN TERMS OF THE PRAYER MADE IN THE PLAINT. 9. AGGRIEVED AGAINST THE JUDGMENT AND ORDER OF THE HIGH COURT, THE PRESENT APPEAL BY GRANT OF SPECIAL LEAVE HAS BEEN FILED. 10. MR BHASKAR GUPTA, LEARNED SENIOR COUNSEL APPEARING FOR THE APPELLANT TRIED TO PERSUADE US TO ACCEPT THAT AFTER THE DEATH OF S.N. DAS ALL THE FOUR RESPONDENTS I.E. RESPONDENTS 1 TO 3, THE PLAINTIFFS AS WELL AS RESPONDENT 4 SUCCEEDED TO THE TENANCY JOINTLY AND SINCE IT WAS A JOINT TENANCY, NOTICE COULD BE SERVED ON ANYONE OF THE JOINT TENANTS. IN SUPPORT OF THIS PROPOSITION, HE RELIED UPON A JUDGMENT OF THIS COURT IN H. C. PANDEY V. G.C. PAUL1 IN WHICH IT HAS BEEN HELD THAT IN THE CASE OF JOINT TENANCY, NOTICE COULD BE SERVED ON ANYONE OF THE JOINT TENANTS AND THE SUIT COULD BE FILED AGAINST THE SAID TENANT. HE ALSO CONTENDED THAT SINCE THE PLAINTIFF-RESPONDENTS 1 TO 3 DID NOT TAKE ANY PART IN THE RUNNING OF THE BUSINESS, THEY BE DEEMED TO HAVE SURRENDERED THEIR TENANCY RIGHTS IN FAVOUR OF RESPONDENT 4. IN THE CIRCUMSTANCES, THE SUIT FILED BY THE APPELLANT AGAINST RESPONDENT 4 WAS MAINTAINABLE AND THE HIGH COURT HAS ERRED IN REVERSING THE WELL-CONSIDERED JUDGMENTS OF THE COURTS BELOW. 11. WE DO NOT FIND ANY SUBSTANCE IN THE SUBMISSIONS MADE BY MR. BHASKAR GUPTA FOR THE REASON THAT EITHER OF THESE POINTS HAD NOT BEEN RAISED BY THE APPELLANT EITHER IN THE PLEADINGS OR BEFORE THE COURTS BELOW. NO ISSUE HAD BEEN FRAMED ON EITHER OF THESE POINTS. THERE IS NO EVIDENCE ON RECORD TO SHOW THAT RESPONDENTS 1 TO 3 HAD SURRENDERED THEIR TENANCY RIGHTS IN FAVOUR OF RESPONDENT 4 OR THAT THE TENANCY WAS JOINT. THESE PLEAS HAVE ALSO NOT BEEN TAKEN BY THE APPELLANT IN THIS APPEAL. NO ISSUE HAD BEEN FRAMED ON EITHER OF THESE POINTS. THERE IS NO EVIDENCE ON RECORD TO SHOW THAT RESPONDENTS 1 TO 3 HAD SURRENDERED THEIR TENANCY RIGHTS IN FAVOUR OF RESPONDENT 4 OR THAT THE TENANCY WAS JOINT. THESE PLEAS HAVE ALSO NOT BEEN TAKEN BY THE APPELLANT IN THIS APPEAL. SINCE THESE POINTS WERE NOT RAISED AT ANY EARLIER STAGE AND ARE BEING RAISED FOR THE FIRST TIME IN THIS COURT DURING THE COURSE OF ARGUMENTS, WE DO NOT PERMIT MR. GUPTA TO URGE THESE POINTS. WE DO NOT EXPRESS ANY OPINION ON THESE POINTS. 12. THE ONLY POINT WHICH REMAINS TO BE CONSIDERED IS WHETHER S.N. DAS THE ORIGINAL TENANT HAD TRANSFERRED THE TENANCY RIGHTS IN FAVOUR OF RESPONDENT 4. IN THIS BEHALF, SECTION 14(1)(B) OF THE ACT READS AS UNDER: "14. RESTRICTION ON SUB-LETTING.-(1) AFTER THE COMMENCEMENT OF THIS ACT, NO TENANT SHALL, WITHOUT THE PREVIOUS CONSENT IN WRITING OF THE LANDLORD, (A)*** (B) TRANSFER OR ASSIGN HIS RIGHTS IN THE TENANCY OR IN ANY PART THEREOF. (2) A BARE PERUSAL OF THIS PROVISION MAKES IT CLEAR THAT THE TENANCY RIGHTS COULD BE TRANSFERRED ONLY WITH THE PREVIOUS CONSENT GIVEN IN WRITING BY THE LANDLORD. SINCE IT HAS NOT BEEN SHOWN TO US THAT THE APPELLANT LANDLORD HAD AT ANY POINT GIVEN HIS CONSENT IN WRITING TO S.N. DAS TO TRANSFER THE TENANCY RIGHTS, THE PLEA THAT S.N. DAS HAD TRANSFERRED THE TENANCY RIGHTS IN FAVOUR OF HIS SON I.E. RESPONDENT 4 HEREIN CANNOT BE ACCEPTED. THE HIGH COURT WAS RIGHT IN HOLDING THAT S.N. DAS, THE ORIGINAL TENANT, HAD NOT TRANSFERRED THE TENANCY RIGHTS IN FAVOUR OF RESPONDENT 4 AS ALLEGED BY THE APPELLANT IN THE WRITTEN STATEMENT. 13. FOR THE REASONS STATED ABOVE, WE DO NOT FIND ANY MERIT IN THIS APPEAL AND DISMISS THE SAME WITH NO ORDER AS TO COSTS.