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2006 DIGILAW 375 (CAL)

RATANSHI DEVJI PATEL v. SRIGOPAL BAGLA

2006-06-30

BHASKAR BHATTACHARYA, PRAVENDU NARAYAN SINHA

body2006
BHASKAR BHATTACHARYA, J. ( 1 ) THIS first appeal is at the instance of the defendants in a suit for eviction and is directed against the judgment and decree dated 19th December, 1997 passed by the learned Civil Judge, Senior Division, 10th Court, Alipore in Title Suit No. 79 of 1981. ( 2 ) THE respondent filed a suit being Title Suit No. 79 of 1981 in the 10th court of Subordinate Judge at Alipore thereby praying for recovery of possession of the suit property along with machineries mentioned in the plaint and also for recovery of arrears of money due and payable by the defendants to the plaintiff towards rent by virtue of agreement dated 3rd November, 1970 between the plaintiff and the defendants and the case made out by the plaintiff-respondent may be summarised thus: (a) The plaintiff was the landlord of the defendant in respect of a piece of land measuring 5 bighas land more or less with two big corrugated iron structures at 63, Belgachia Road, P. S. Ultadanga, Calcutta-37 where the plaintiff erected several machineries for running of sawmill. Two big corrugated iron structures standing on a portion of land was partitioned each in two halves, one half of each structure was allotted to two tenants wherein the machineries and plants were installed in each half of the two structures. The said machineries and plants in one set were hired by the defendant and the vacant land under the portion of the structures were allowed to be used as a licensee by the defendant and the other half portion of the structure of other 6ne were given to other tenants. (b) By an agreement dated 3rd November, 1970 between the plaintiff and the defendants, the machineries were let out to defendants with permission to use the structure and office room and the vacant land under the structure to be used by the defendants as licensee. The hire charges for plants and machineries were fixed at Rs. 500/- a month according to the English Calendar from November 1970 to september 1971 and thereafter, at the rate of Rs. 650/- a month from october, 1971 onwards payable in advance on or before the fifth day of that month to the plaintiff at his premises. The hire charges for plants and machineries were fixed at Rs. 500/- a month according to the English Calendar from November 1970 to september 1971 and thereafter, at the rate of Rs. 650/- a month from october, 1971 onwards payable in advance on or before the fifth day of that month to the plaintiff at his premises. The defendants further agreed that in default of payment in the manner aforesaid, they would be liable to pay interest at the rate of 12 per cent per annum from the due date until payment. (c) The defendants affixed certain machinery with the plaintiffs existing machinery and also repaired the office room with the plaintiffs consent. The defendants agreed to keep the demised premises with the structures and machineries thereon in good and repairable condition and to preserve the let-out machineries and structure safe and free from damages. (d) In violation of the terms and conditions of the aforesaid agreement, the defendants had been using and occupying for the purpose of their trade and business the adjoining vacant land which they were not permitted to use in terms of the agreement and such vacant land measuring about 20000 square feet, if let out separately, would have fetched a rent of Rs. 2/- per square feet a month or Rs. 40,000/- a month for the said land. (e) The plaintiff had been suffering damages on this account of Rs. 40,000/- a month from 24th June, 1989 when the plaintiff came to learn about such illegal occupation. (f) The defendants had damaged the property as detailed in the plaint which amounted to Rs. 6,21,000/ -. (g) The defendants having failed and neglected to pay rents for 33 months from December, 1975 to August, 1978 together with agreed interest of Rs. 12/- per cent per annum, he filed a suit being Money Suit No. 24 of 1978 for a decree of Rs. 25,096. 50 paise including interest of rs. 3,646. 50 paise. In the aforesaid suit, the plaintiff also claimed a further decree of Rs. 38,318. 54 paise being the value of the goods sold and delivered to the defendants with interest of sales tax. The plaintiff claimed in the said suit a decree against the defendants for a sum of Rs. 63,415. 04 paise. 3,646. 50 paise. In the aforesaid suit, the plaintiff also claimed a further decree of Rs. 38,318. 54 paise being the value of the goods sold and delivered to the defendants with interest of sales tax. The plaintiff claimed in the said suit a decree against the defendants for a sum of Rs. 63,415. 04 paise. (h) The defendants admitted the plaintiff's claim in the said suit and accordingly, the defendants and the plaintiff filed a compromise petition embodying the terms of settlement and the said suit was decreed on compromise. (i) The defendant having violated the terms of the said agreement and particularly, having defaulted in payment of rents from September, 1978 onwards, the plaintiff by his Advocate's letter dated 1st december, 1980 forfeited the defendants' right and interest under the said agreement and determined the defendants' tenancy by the aforesaid notice with the expiry of the month of June, 1981 and gave notice to quit and deliver up to the plaintiff's vacant and peaceful possession of the premises with machineries. (j) The defendants received the notice on 30th December, 1980 but had not given up possession of the premises. Hence the suit. ( 3 ) THE suit is contested by the defendant No. 1 by filing written statement thereby denying the material allegations made in the plaint and his defence may be epitomised thus: (i) The plaintiff had no cause of action, the suit was not maintainable. (ii) There was no relationship of landlord and tenant between the plaintiff and the defendant. (iii) The defendant No. 2 had retired from the business of the defendant no. 3 long before 1978 and since his retirement, the defendant No. 1 had become the sole proprietor of defendant No. 3. (iv) One Durga Das Dass of No. 4, Jorabagan Street was at all material times and till then, the owner of the land which has been renumbered as 63, Belgachia Road, P. S. Ultadanga, Calcutta-37 and M/s. Shree krishna Timber Works was inducted as a lessee in respect of plot of land by Durga Das Dass under a registered lease dated 6th December, 1952 for a term of 16 years commencing from 1st December, 1952 and ending on 30* November, 1968. The said lessee erected several structures and installed several machineries herein. The said lessee erected several structures and installed several machineries herein. (v) The defendant No. 3 was inducted as a tenant in respect of the said plot of land along with structures and installed several machineries. (vi) The defendant No. 3 was inducted as a tenant in respect of plot of land along with structure and machinery by M/s. Shree Krishna timber Works on and from 1st March, 1962 at a monthly rent of Rs. 500/- according to English calendar month. Sometime in November, 1970, Sri Prahlad Ray Bagla, the father of the plaintiff and partner of M/s. Shree Krishna Timber Works represented to the defendant no. 1, then a partner of defendant No. 3, that his son, the plaintiff, had been accepted as a tenant in place and instead of M/s. Shree krishna Timber Works by the Superior landlord and that the plaintiff had started business under the name and style of Sunrise Timber company. The plaintiff also made similar representation. The defendant No. 3 was persuaded by the plaintiff and his father to pay rent of the premises in question to the plaintiff and the defendant who was very much in friendly terms with the plaintiff and still holds the plaintiff's father in high esteem believed the representation to be true without suspecting any foul play in the matter and started paying rents to the plaintiff in the name of his firm styled Sunrise Timber company in good faith. (vii) Recently, the defendant had come to know that after the expiry of the lessee dated 6th December, 1952, the plaintiff's father who was one of the partners of M/s. Shree Krishna Timber Works was accepted as a monthly tenant in respect of the land, structures and machineries in question by the owner. The defendant further came to know that in or about September, 1976, the plaintiff's father filed insolvency case before the District Judge, Alipore for adjucating him as an insolvent and the case was still pending. (viii) The plaintiff was never a tenant under the superior landlord and the owner, Durga Das Dass, in respect of the premises and no portion of the suit premises was ever in possession of the plaintiff. (ix) The defendant without knowing the contents of the agreement of november, 1970 put signature and no copy of the agreement was furnished to the defendant No. 1. (ix) The defendant without knowing the contents of the agreement of november, 1970 put signature and no copy of the agreement was furnished to the defendant No. 1. (x) After service of summons of Money Suit No. 24 of 1978, the plaintiff entered into an agreement with the defendant No. 1 for effecting compromise on the terms that the defendant would pay a sum of Rs. 20,000/- to the plaintiff before 14th October, 1978 and upon such payment being made, the plaintiff would forgo all the interest claimed in the said suit and the suit would be decreed for balance principal amount only with full stamp cost of the suit and the defendants would be allowed to pay the balance amount by easy monthly instalment at the rate of Rs. 300/- till full liquidation of the balance amount. (xi) In pursuance of the said agreement, the defendant paid Rs. 20,000/-against receipt granted by the plaintiff on 14th October, 1978 and upon such payment for which due receipt was granted, the plaintiff represented that the necessary petition of compromise as stated above had been prepared and the same along with the Vakalatnama would be filed by engaging a lawyer on behalf of the defendant No. 1. (xii) The defendant No. 1 bona fide believed the said representation and without knowing the contents of the agreed terms put signature on the petition and the Vakalatnama in good faith. (xiii) After coming to know that the decretal amount was sought to be executed, the defendant No. 1 was surprised to know that the plaintiff had not only obtained the signature of the defendant by practising fraud upon the defendants but the sum of Rs. 20,000/- had not been adjusted against the decretal dues. (xiv) The defendant never violated the terms of any agreement in view of the fact that there existed no relationship of landlord and tenant between the plaintiff and the defendants and the question of default in payment of rent did not and could not arise and the suit was liable to be dismissed. ( 4 ) THE defendant No. 2 filed a written statement but did not ultimately contest the suit. ( 4 ) THE defendant No. 2 filed a written statement but did not ultimately contest the suit. ( 5 ) AT the time of hearing, the plaintiff himself and an Engineer Commissioner and a clerk of the office of the District Registrar deposed in support of the plaint case while the defendant No. 1 alone gave evidence in opposing the prayer of the plaintiff. ( 6 ) AS indicated above, the learned Trial Judge, by the judgment and decree impugned herein, has decreed the suit for eviction but refused to grant any decree for recovery of money as claimed in the plaint. ( 7 ) BEING dissatisfied, the defendant Nos. 1 and 3 have preferred the present appeal while the plaintiff has filed a cross-objection thereby claiming the decree for damages which has been refused by the learned Trial Judge. ( 8 ) MR. Roy Chowdhury, the leaned senior Advocate, appearing on behalf of the appellant, strenuously contended before us that the suit as framed was not maintainable, inasmuch as, the alleged agreement that has been proved was in relation to machineries only and as such, no question of passing a decree in respect of land upon which those machineries stood as well as surrounding land in possession of the defendants arose. Mr. Roy Chowdhury contends that the plaintiff failed to prove ownership of the lands and consequently, even if his client failed to prove title to the land, the plaintiff not being the owner of the property cannot get a decree for eviction of the defendants from the land beneath the machinery and that adjacent to the machinery which is in occupation of his client. Mr. Roy Chowdhury contends that the notice of eviction which preceded filing of the suit was on the face of it invalid, inasmuch as, the agreement in question was not in respect of any premises. He further points out that although the notice was given by describing his client as tenant in respect of the immovable property under section 13 (6) of the West Bengal premises Tenancy Act and under section 106 of the Transfer of Property Act the same was contradictory in itself as six months-time were granted to the defendants for vacating the property although under section 13 (6) of the Act notice of one month is sufficient. He, therefore, prays for dismissal of the suit as the plaintiff failed to prove the ownership of the land. ( 9 ) MR. Banerjee, learned senior Counsel appearing on behalf of the plaintiff on the other hand has supported the decree for eviction and has contended that the relationship of landlord and tenant between the parties having been proved, the defendants could not dispute the title of the plaintiff in the property. Mr. Banerjee further contends that the plaintiff had definitely proved the title to the immovable property by virtue of tenancy granted by Durga Das Dass in his favour with right to create sub-tenancy and on the basis of such tenancy, his client's name has been mutated in the Calcutta Municipal Corporation. Mr. Banerjee, thus, prays for dismissal of the appeal filed by the defendants. ( 10 ) MR. Banerjee further contends that admittedly the defendant being in unlawful occupation of the property, it was the duty of the learned Trial Judge to pass a money decree for the amount claimed as damages. Mr. Banerjee points out that an Advocate Commissioner assessed the rate of rent which can be fetched out of the land in occupation of the defendant and also gave evidence for proving his report and no evidence controverting such report has been adduced. Mr. Banerjee, thus, prays for passing a decree for recovery of the amount claimed by his client with interest. ( 11 ) THEREFORE, the first question that arises for determination in this appeal is whether there existed relationship of landlord and tenant between the parties by virtue of the agreement dated November, 1970. ( 12 ) IT appears from the said agreement that the plaintiff had permitted the defendants to use machineries embodied on the earth with the right to use the adjoining land as well as the land beneath the machineries as a licensee. His definite case is that the defendants have violated the terms of the agreement and at the same time, have also encroached other portion of the land which was not the subject-matter of the agreement. ( 13 ) IT further appears from record that even the defendants admitted that one Durga Das Dass was the owner of the land and the original tenancy was in favour of the father of the plaintiff. ( 13 ) IT further appears from record that even the defendants admitted that one Durga Das Dass was the owner of the land and the original tenancy was in favour of the father of the plaintiff. The plaintiff has produced materials showing that Durga Das Dass after the expiry of the said tenancy accepted the plaintiff as tenant in place of his father and pursuant to such new relation, even the plaintiff's name has been mutated in the record of the Kolkata Municipal corporation. Therefore, the plaintiff has proved his title as tenant over the suit property with the right to sublet. ( 14 ) IT further appears from the record that the defendant agreed to accept the machinery on the basis of payment of rent. The machineries are embodied to earth and according to section 3 of the Transfer of Property Act, the subject-matter of tenancy in such a situation must be held to be that of immovable property. By the self-same agreement, the defendants were given licence for using surrounding lands. The execution of the agreement has been accepted and it appears that in a prior money suit between the parties, the defendants have suffered decree for non-payment of rent in terms of that agreement. Therefore, we do not find substance in the contention of Mr. Roy Chowdhury that without knowing the contents of the agreement, his client put his signatures on the agreement of tenancy and consequently, the grant of tenancy and the licence in respect of surrounding land has been well-established. Once the relationship of landlord and tenant between the parties in respect of machineries and that of licensor and licensee in respect of the land and building is proved, the defendant is estopped from disputing the title of the plaintiff over the property. We further find that even the title of the plaintiff in the adjoining land which was not the subject-matter of the tenancy granted by the plaintiff has been proved by virtue by production of the letter of tenancy issued by Durga das Dass and thus, as a tenant he had the right to evict his licensee as well as a trespasser so long his tenancy was continuing. ( 15 ) ONCE the tenancy is held to be in respect of immovable property, a notice in terms of section 106 of the Transfer of Property Act is required and it appears that the plaintiff had given six months time to vacate and suit was filed after the expiry of six months as the tenancy was given for manufacturing purpose. The mention of section 13 (6) of the West Bengal Premises Tenancy Act in the said notice was superfluous. Even if we accept for the sake of argument that there being structure over the property, the tenancy was really governed by west Bengal Premises Tenancy Act, in such a case, a valid notice in terms of section 13 (6) was given because more than one-month time was granted to the defendants to vacate the property. ( 16 ) EVEN if, for the sake argument, the tenancy is treated to be one under the West Bengal Premises Tenancy Act, the moment default in payment of rent is proved, the defendant cannot get any protection under section 17 (4) of the Act as he did not file any application under sections 17 (1), 17 (2) and 17 (2a)of the Act. ( 17 ) THEREFORE, the learned Trial Judge did not commit any illegality in granting a decree for eviction in respect of the property covered under the agreement as also the adjoining property which is in possession of the defendant either as a licensee or as a trespasser. We, therefore, affirm the decree for eviction passed by the learned Trial Judge. ( 18 ) AS regards cross-objection, it appears that the defendants are in possession of huge amount of land and the Commissioner appointed by the court has given report assessing the valuation of the damages at the rate of rs. 2/- per square feet. No evidence has been adduced disputing the said rate of mesne profits and in our view, within the Municipal limit of Calcutta, the rate of Rs. 2/- per square feet even at that time was quite reasonable and it is a fit case where the learned Trial Judge ought to have granted even a decree for mesne profits. We are, therefore, inclined to allow the counter-claim and grant a decree to the extent of Rs. 6,56,034. 2/- per square feet even at that time was quite reasonable and it is a fit case where the learned Trial Judge ought to have granted even a decree for mesne profits. We are, therefore, inclined to allow the counter-claim and grant a decree to the extent of Rs. 6,56,034. 46 paise as damages claimed in the plaint and the plaintiff has also paid ad valorem Court-fees as provided under the law. ( 19 ) WE, therefore, allow the cross-objection and pass a decree for rs. 6,56,034. 46 paise with interest at the rate of Rs. 12 per cent per annum from the date of decree of eviction passed by the Trial Court till actual payment. The defendants will further pay mesne profits at the rate of Rs. 2/- per square feet a month as mesne profits for the total area of the 2000 sq. feet of land from the date of the decree of the Trial Court till recovery of possession. ( 20 ) THE cross-objection filed by the plaintiff is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs. Cross-objection allowed.