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2006 DIGILAW 51 (CAL)

JOYDEV MANNA v. ARATI KHAN

2006-01-31

PRATAP KUMAR RAY

body2006
PRATAP KUMAR RAY, J. ( 1 ) IN the instant second appeal at the time of admission under Order 41 Rule 11 of the Code of Civil Procedure, a question of law was framed by the division Bench (Cor : A. K. Ganguly and tapan Kumar Dutt, JJ) to this effect : "whether the learned Judge of the First appellate Court has committed an error on a substantial question of law in not properly construing the rent receipt which shows one room in the possession of the appellant and whether the learned Judge of the First appellate Court should have held that the kitchen being a part and parcel of the human existence is not required to be written separately in the body of the rent receipt?" ( 2 ) BEFORE dealing with the issue involved herein as to whether there is any substantial question as framed by the Division bench has any merit, factual matrix of the case is being dealt with first. ( 3 ) THIS second appeal has been preferred by the tenant assailing the judgment and decree dated 24-5-2004 passed by the learned Additional District Judge, 4th Court at Howrah in Title Appeal No. 216 of 2001 affirming the judgment and decree dated 31-8-2001 passed by the learned Civil Judge, junior Division, 2nd Court, Howrah in Title suit No. 212 of 1995. ( 4 ) A civil action in the nature of eviction suit was filed against the present appellant by the landlord by contending in the plaint that Schedule 'a' property, a tenanted premises was reasonably required by the plaintiff to accommodate the family members and on the ground of default in payment of rent, whereas in the same plaint a prayer for recovery of khas possession of Schedule 'b' property was sought for alleging, inter alia, that in Schedule 'b' property the defendant/tenant was in illegal possession and was utilising the same to run his puffed rice business (Moori ). ( 5 ) DEFENCE case in the written statement as filed by the present appellant is simply a denial. There was no positive case made out so far as Schedule 'b' property is concerned by addressing the issue that the same was within the tenanted premises of the defendant. ( 5 ) DEFENCE case in the written statement as filed by the present appellant is simply a denial. There was no positive case made out so far as Schedule 'b' property is concerned by addressing the issue that the same was within the tenanted premises of the defendant. ( 6 ) ON taking evidence of the parties, ultimately, the learned trial Court considered the lis relating to Schedule 'b' property under issue No. 3 and answered the issue to this effect: "the plaintiffs have alleged that defendant is in wrongful and unauthorised occupation of a room situated on the ground floor of the north-western side of the said premises where the defendant is running a puffed rice (Muri) selling business. That property has been described in Schedule 'b' of the plaint. The defendant denied the allegation of the plaintiff. It has been contended by the defendant that he is in occupation of schedule 'a' property for last 20 years. He was inducted by the Vendor of the plaintiff in respect of said tenancy and the kitchen was within the extent of tenancy and he is not in occupation of 'b' schedule property. Plaintiffs have produced the learned commissioner's report (Ex. 12 ). It appears from the report of Learned Commissioner that there were two rooms in the occupation of the defendant. The north-western room in the ground floor is in occupation of the defendant as appears from the report of the Learned Commissioner. The defendant denies that he is in possession of that room but Commissioner's report says otherwise. Be that as it may the defendant does not deny the plaintiffs' title in schedule 'b' property. The plaintiffs are, therefore, entitled to recover possession of Schedule 'b' property over which the defendant has no right, title and interest. The issue is therefore, answered in favour of the plaintiffs. " ( 7 ) AN appeal was laid by the tenant/defendant on issue of findings and observations of the trial Court as culminated to a final judgment and decree against the tenant on holding that the tenant was occupying Schedule 'b' property illegally as the same was not within the tenanted premises. " ( 7 ) AN appeal was laid by the tenant/defendant on issue of findings and observations of the trial Court as culminated to a final judgment and decree against the tenant on holding that the tenant was occupying Schedule 'b' property illegally as the same was not within the tenanted premises. In title Appeal No. 216 of 2001, the first appellate Court considered the issue No. 3 relating to Schedule 'b' property on issue of eviction for illegal occupation of the said property, which is the subject matter of the second appeal before this Court, and confirmed the views and findings of the learned trial Court. The findings and observations of the first appellate Court is to this effect : "regarding decree, in respect of 'b' schedule property ld. Advocate for the tenant/appellant submitted that Ld. Trial Court did not consider the tenanted accommodation of the tenant/appellant correctly because 'b' schedule property is the actual tenancy of the tenant/appellant. " Ld. Advocate for the appellant opposes the said submission. It is submitted that the tenant forcibly possessed a room which is being used for the purpose of selling parched rice and the Ld. Trial Court rightly decreed the suit in respect of 'b' schedule property. On perusal of the evidence it appears that ld. Commissioner has shown the suit room in possession of the tenant. The tenant denied that he is in forceful possession of the said room. But the rent receipt does not support the contention of the tenant. From the rent receipt it appears that his tenancy in respect of one room and there is no mention of any kitchen. If that be the position then the position of the tenant in respect of the said room is forceful possession and he is liable to be evicted therefrom. " ( 8 ) LEARNED Advocate for the appellant has submitted that a tenanted premises always includes a kitchen and use of Schedule 'b' property since it has been established by the report of the learned Advocate Commissioner in view of the findings thereof about existence of coal, oven etc. the plaintiffs failed to prove the case that Schedule 'b' property was outside the tenanted premises. It has been further urged that the rent receipt never stipulates the details of the kitchen, bath and privy of the tenanted premises. the plaintiffs failed to prove the case that Schedule 'b' property was outside the tenanted premises. It has been further urged that the rent receipt never stipulates the details of the kitchen, bath and privy of the tenanted premises. It has been vehemently urged that kitchen is a part and parcel of the tenancy right and it does not require to be mentioned in rent receipt. Substantial question of law also has been framed accordingly. The submission as made that the kitchen is a part and parcel of the tenancy and it does not require to be specified, cannot be accepted. Under the tenancy law, even a single room could be provided under tenancy right without providing any kitchen or any bath, privy even, which is frequently being done in calcutta. Further more, since in the rent receipt it has been specified that one room was under tenancy and on scanning of the evidence on record it appears that in the cross examination the defendant/tenant has categorically contended that he was occupying one room as a tenant though prior to that deposition he submitted that the tenancy portion includes Schedules 'a' and 'b' of the plaint, but in view of the evidence on record as it appears, which has been considered by the learned trial Court in depth and duly confirmed by the learned first appellate Court, this Court is not finding any merit to probe into that evidentiary issue. There are instances that even without any kitchen a room could be under tenancy right. Hence, it is not a universal proposition that as soon as a room would be provided under tenancy, it always includes a kitchen. In this view of the matter, this Court is not finding any merit on the substantial question of law as framed by the Division Bench while admitting the appeal. Furthermore, it is a settled law that second appeal in terms of the rigours of Section 100 of the Code of civil Procedure will not probe into the evidence on record to identify the factual matrix and to reach a separate conclusion than the conclusion as reached by the last Court of such fact, namely, the first appellate Court confirming the views of the learned trial court. It is true and there is no doubt that even in the event of concurrent finding of fact, in the second appeal, the same could be interfered with in the event there is perversity in the finding not based on records. In the instant case, accordingly the Court intended to scan that issue and on the basis of the written statement, deposition of the tenant/appellant and other material document, namely, rent receipt, including evidence of the Advocate Commissioner, this court is satisfied that both the Courts below considered the issue in the right angle and there is no perversity of assessing the facts. ( 9 ) HAVING regard to such state of affairs, since there is no substantial question of law involved in this second appeal as already held by this Court, this appeal accordingly stands dismissed. ( 10 ) THERE will be no order as to costs. Appeal dismissed.