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2008 DIGILAW 491 (CAL)

Rajmani Sharma v. Khitish Debnath

2008-05-07

KALIDAS MUKHERJEE

body2008
Judgment : KALIDAS MUKHERJEE, J. (1). THIS appeal has been preferred by the defendants/appellants assailing the judgment and decree passed by the learned Additional District Judge, Fast track Court, Sealdah in Title Appeal No. 34 of 2001 reversing the judgment and decree passed by learned Civil Judge, (Junior Division), Third Court, sealdah in T. S. No. 282 of 1989. The case of the Plaintiff/respondent, in short, is that the plaintiff/respondent is a thika tenant in respect of the suit property situated at premises No. 58/5a, Barrackpore Trunk Road, p. S. Cossipore. The suit was filed praying for a decree of permanent injunction. But subsequently, the plaint was amended and the prayer was made for declaration that the plaintiff is the thika tenant in respect of a schedule property with a shed standing thereon and for confirmation of possession in respect of a schedule property and for recovery of possession, alternatively, for a decree for mandatory injunction directing the defendants to vacate the b schedule property. The plaintiff has his motor repairing garage in the said premises and he used to take occasional assistance from the defendants as skilled labour for the purpose of carrying on the said business. Due to financial stringency, the plaintiff had to minimize his space of work. The defendants had no right for enjoyment of the suit property or any portion thereof at any point of time. Defendants are now claiming permanent shelter in the suit property for running their individual business taking the helplessness of the plaintiff and they are associated with the local hooligans. On 24. 5. 89 at about 3. 00 P. M. the defendants being accompanied by some local hooligans made an attempt to enter into the suit property by force, but failed due to timely resistance made by the plaintiff and the well-wishers of the family. Having got the knowledge of the institution of suit as well as the order of injunction passed therein, the defendants in violation of the order of the learned Court started keeping their business articles inside the suit room and most illegally canvassing themselves as tenants under the plaintiff. But, as a matter of fact, the defendants cannot be more than the licensees under the plaintiff since they were never in exclusive possession of the suit property or any portion thereof. But, as a matter of fact, the defendants cannot be more than the licensees under the plaintiff since they were never in exclusive possession of the suit property or any portion thereof. As a matter of fact, the defendant was given licence in the suit property in order to proceed with the work allied with the work of motor repairing like electrifications, wood work etc. so that the plaintiff could complete the motor repairing work in a compact form. In connection with the aforesaid work between the plaintiff and the defendant, there was exchange of money on issuing receipts in their individual khata and the defendant now taking advantage of that, started canvassing themselves as tenants under the plaintiff falsely representing that those payments were made towards payment of rent. During the pendency of the suit for the period from 1992-1997, each of the defendants slowly made wrongful occupation of specific portion of the existing shed by making tin partition wall putting door, jhap etc. so as to make individual occupation a separate identity amongst the defendants. The plaintiff under the circumstances, instituted the suit praying for recovery of khas possession by evicting each of the defendants from their respective compartment or room as they are not the tenants, but licensees and upon cancellation or revocation of the same, the plaintiff is entitled to get recovery of khas possession. (2). THE case of the defendants/respondents, in short, is that they are the monthly tenants under the plaintiff and are governed by the West Bengal premises Tenancy Act and they have the right to enjoy their respective portion by virtue of their own tenancy right, unless they are evicted in accordance with the procedure established by law. The defendants have also denied the other material allegations raised by the plaintiff in the plaint. In the additional written statement, the defendants have however averred that the plaintiff who was an engine mechanic decided to open a complete and comprehensive garage at 58/5a, B. T. Road in thika land and constructed 5 rooms and a shed thereon and himself occupied one room as his business office. The plaintiff thereafter inducted one blacksmith, one welder, one electrician and a carpenter as tenants in respect of one room each. (3). The plaintiff thereafter inducted one blacksmith, one welder, one electrician and a carpenter as tenants in respect of one room each. (3). THE learned Trial Court upon consideration of the materials on record dismissed the suit holding that when the suit properties are different and parties are also different, the plaintiff was not entitled to get the relief of recovery of khas possession against all the defendants in a single suit. It has further been held by the learned Trial Court that the defendants have no legal status in respect of the suit shed, but they are in possession of the same and they are nothing but trespassers. The learned Trial Court held that the defendants failed to prove that they are the tenants under the plaintiff in respect of the suit premises. (4). THE plaintiff being aggrieved by and dissatisfied with the judgment passed by the learned Trial Court preferred the appeal and the learned First appellate Court reversed the judgment passed by the learned Trial Court and decreed the suit holding that under Order 1 Rule 3 of the C. P. C., the plaintiff could sue several defendants in respect of the suit property enjoyed by them in a single suit. The learned First Appellate Court further held that the joinder of several causes of action against several defendants is permissible, if the parties have joint interest in the main question decided in the suit. The learned First Appellate Court further held that the defendants were the licensees in respect of the suit property. (5). IN this appeal the following substantial questions of law were formulated. "i. Whether different causes of action against different persons can be combined in one suit in a case where there are distinction in the identity of the interest of the respective parties and the defendants are not interested in each others interest inter se. ii. Whether the Court can make out a third case of trespass when plaintiffs case was that of a licence and the defendants case was that of a tenancy in the absence of any pleading. " (6). THE learned Counsel appearing on behalf of the appellants submits that the defendants are bharatiyas/tenants under the plaintiff and as the plaintiff has claimed himself to be a thika tenant, the defendants are protected under the provisions of the West Bengal Premises Tenancy Act. " (6). THE learned Counsel appearing on behalf of the appellants submits that the defendants are bharatiyas/tenants under the plaintiff and as the plaintiff has claimed himself to be a thika tenant, the defendants are protected under the provisions of the West Bengal Premises Tenancy Act. The learned Counsel for the appellants further submits that as regards the status of the defendants, the plaintiff made amendment of the plaint and there are contradictory averments regarding the status of the defendants. It is further contended that the suit is bad for multiferiousness and the joinder of all the defendants in a single suit for eviction, under the facts of the case, is not permissible under the provisions of Order 1 Rule 3 of the C. P. C. The learned Counsel has relied on the report submitted by the learned Commissioner holding the local inspection wherein it has been stated that the defendants are in separate and exclusive possession. (7). THE learned Counsel for the appellants further submits that the learned trial Court has held that the defendants are trespassers and the learned first Appellate Court is of the view that the defendants are licensees. It is submitted that the plaintiff is not entitled to get a decree for eviction and the judgment and decree passed by the learned First Appellate Court should be set aside. (8). THE learned Counsel appearing on behalf of the respondent submits that the defendants filed joint written statement in the Trial Court and they had common and joint intention of trespassing into the suit property. In this connection, the learned Counsel has referred to the provisions of Order 1 rule 3 of the C. P. C. The learned Counsel has also referred to and cited the decisions reported in 66 CWN 391[kamal Prasad Gupta Vs. Chaman Lal agarwalla and Ors. ]; AIR 1972 Cal 313 paras 12 and13 [mst. Ramdayee Vs. Dhanraj Kochar and others]; AIR 1960 Kerala 127 [joseph alias Kochu vs. Makkaru Pillai] and AIR 1975 Cal 200 [amulya Ratan Mukherjee and others Vs. Kali Pada Tah and others]. The learned Counsel submits that the suit was initially filed for permanent injunction and inspite of the order of injunction, the defendants tried to trespass in the suit land and the prayer for recovery of khas possession was included by amending the plaint. Kali Pada Tah and others]. The learned Counsel submits that the suit was initially filed for permanent injunction and inspite of the order of injunction, the defendants tried to trespass in the suit land and the prayer for recovery of khas possession was included by amending the plaint. It is contented that the defendants are not the tenants under the plaintiff, but they are licensees and on revocation of licence they were nothing but trespassers. It is submitted that the institution of suit itself shows the revocation of licence. The learned Counsel submits that no third case was made out by the learned Trial Court and both the learned courts below rejected the defendants contention of being the monthly tenants under the plaintiff. (9). IT is the specific case of the plaintiff that in connection with his motor repairing business he engaged the defendants as workers for wages and subsequently with the institution of suit and the order of injunction, the defendants started keeping their business articles in the suit rooms by violating the Courts order and canvassing themselves as tenants under the plaintiff. It is the case of the plaintiff that the defendants are nothing but licensees in the suit property. The contention of the defendants/appellants is that they are the tenants and not the licensees in the suit property. Both parties led evidence in support of their respective contentions. (10). LEARNED Trial Court held that the defendants are trespassers in the suit property and the learned First Appellate Court affirmed the judgment and decree of the learned Trial Court holding that the defendants are licensees in the suit property. Both the learned Courts below held that the defendants are not the tenants in the suit property. In view of such concurrent finding of fact by the learned Courts below that the defendants are not the tenants, the only irresistible conclusion will be that they are the licensees in the suit property. The learned Counsel for the appellants submits that the finding of the learned Trial Court that the defendants are trespassers is a third case made out by the learned Court. I think that with the revocation of licence which is also done with the institution of the suit, the defendants are nothing but trespassers in the suit property. In other words, with the revocation of licence, the status of the defendants is that of trespassers. I think that with the revocation of licence which is also done with the institution of the suit, the defendants are nothing but trespassers in the suit property. In other words, with the revocation of licence, the status of the defendants is that of trespassers. Therefore, the finding of the learned Trial Court that the defendants are trespassers in the suit property cannot be said to be a third case made out by the learned Court. There is, therefore, no ground to interfere with the findings of the learned Courts below on this point. (11). SECONDLY, as regards the question of multifariousness or mis-joinder of parties and causes of action in the suit, the learned Counsel for the respondent referred to the provisions of Order 1 Rule 3 of the C. P. C. and cited the decisions reported in AIR 1972 Calcutta 313 (Supra), 66 CWN 391 (Supra) and AIR 1960 Kerala 127 (Supra ). (12). IN the decision reported in 66 CWN 391 (Supra) it has been held by the honble Court as follows:- "it seems to us that the impugned order cannot be supported. The allegation of conspiracy in the plaint, as it stands, would be sufficient for uniting or joining the several causes of action against the several persons concerned under Order 1, rule 3 of the Code of Civil procedure. This provision has been liberally interpreted by courts and its scope has never been attempted to be narrowed down or restricted. The point was elaborately discussed in the leading case of Ramendra Nath Roy V. Brajendra Nath Dass (1) (1917) 21 C. W. N. 794: I. L. R. 45cal. 111. The same view has been affirmed in the more recent case of Shew Narayan Singh V. Brahmanand Singh and Ors. (2) A. I. R. 1950 Cal. 479. There will also be found a series of decisions, adopting or supporting the above liberal construction of the statute. Moreover, at the present stage, we are concerned only with the pleadings or rather, the plaint, for our present purpose, and, in view of the allegation of conspiracy, made therein, the present suit should be held maintainable and not bad for multifariousness. Moreover, at the present stage, we are concerned only with the pleadings or rather, the plaint, for our present purpose, and, in view of the allegation of conspiracy, made therein, the present suit should be held maintainable and not bad for multifariousness. " It has been further held by the Honble Court in the said decision as follows:-"it is true that, in the plaint, there are also other claims, namely, of arrears of rent and mesne profits but those are only incidental or consequential reliefs flowing from or arising out of the main relief for recovery of possession. It is perfectly clear that such incidental reliefs can always be included in a suit for the main relief. " In another decision reported in AIR 1960 Kerala 127 (Supra) the observation made by the Honble Court in para 16 is quoted hereunder:- "it is settled law that the determination of the question as to whether a suit is open to such an objection depends solely on the allegations made in the plaint. Chitaley states the law as follows: the question of misjoinder of defendants in any particular case must be judged from the fact whether it is alleged in the plaint that there is against the defendants any right to relief arising out of the same act or transaction. Whether that allegation is right or wrong is not a question to be considered; the question is whether upon the facts as alleged in the plaint and having regard to the relief asked for, there is any misjoinder. It does not depend upon the defence set up or on the evidence or on the decree awarded to the plaintiff. " (13). IN view of the ratio of the aforesaid decisions, it is clear that the question of multifariousness is to be decided on the basis of the averments made in the plaint. As per the averments made in the amended plaint, it appears that the defendants allegedly had the common intention of trespassing into the disputed premises so as to establish their claim of tenancy therein. In such view of the matter, there was common question of law although the learned Commissioner stated in his evidence as P. W. 2 that the defendants are in exclusive possession of separate rooms. In such view of the matter, there was common question of law although the learned Commissioner stated in his evidence as P. W. 2 that the defendants are in exclusive possession of separate rooms. Instead of filing separate suits, the joinder of all the defendants in the suit is permissible under order 1 Rule 3 of the C. P. C. The suit is, therefore, not bad for multifariousness or mis-joinder of causes of action. (14). IN view of the aforesaid discussion, I am of the considered view that there is no ground to interfere with the judgment and decree under appeal. The judgment and decree under appeal are affirmed. The defendants/appellants are directed to vacate b schedule property within two months from this date failing which the plaintiff/respondent will be at liberty to recover possession by executing the decree. The appeal is dismissed. (15). THERE will be no order as to costs. (16). LET a copy of this judgment along with the L. C. R. be sent to the learned court below immediately.