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2009 DIGILAW 216 (CAL)

Gobinda Saha v. Amar Chand Saha

2009-03-13

JYOTIRMAY BHATTACHARYA

body2009
Judgment : JYOTIRMAY BHATTACHARYA, J. (1) This second appeal is directed against the judgment and decree dated 28th April, 1998 passed by the learned Civil Judge (Senior Division) at Sealdah reversing the judgment and decree dated 26th April, 1996 passed by the learned Civil Judge (Junior Division), Second Court at Sealdah in Title Suit No.574 of 1999, at the instance of the plaintiff/appellant herein. The propriety of the judgment of reversal is, thus, under challenge before this Court in this second appeal. (2) Let me now give the short background of this case leading to the filing of this appeal hereunder:- A. Initially the plaintiff/appellant filed a suit for permanent injunction for restraining the defendant/respondent and his men and agent from entering into any portion of the suit property lying at premises no.81/2A, Raja Dinendra Street, P.S. Maniktala, Kolkata-6. B. In the original plaint it was contended by the plaintiff that the plaintiff was the sole owner of the suit premises. It was further stated therein that the plaintiffs uncle Harekrishna Saha was a tenant in respect of the suit premises under the erstwhile owner thereof through whom the plaintiff acquired title in the suit property by way of purchase. It was further stated therein that on the death of Harekrishna Saha, the said tenancy was inherited by his wife Subhasini Saha. It was also stated therein that since Harekrishna Saha had no issue, the plaintiff used to stay with his uncle and his aunt in the suit premises even since before the date of purchase of the suit property by the plaintiff. The plaintiff further contended therein that on the death of Subhasini, the said tenancy was merged with the landlords interest and since then the suit property remained in the exclusive possession of the plaintiff. Since the defendant/respondent was trying to trespass into the suit property, the instant suit was filed claiming the aforesaid reliefs. C. Subsequently the plaint was amended and a relief for recovery of possession of the suit property by evicting the defendant therefrom was prayed for, on the allegation that the defendant has dispossessed the plaintiff from the suit premises. Since the defendant/respondent was trying to trespass into the suit property, the instant suit was filed claiming the aforesaid reliefs. C. Subsequently the plaint was amended and a relief for recovery of possession of the suit property by evicting the defendant therefrom was prayed for, on the allegation that the defendant has dispossessed the plaintiff from the suit premises. It was further introduced by way of amendment that though the defendant who was the stepbrother of the plaintiff was staying in the suit property during the lifetime of Subhasini as a licensee but his licence stood revoked on the death of Subhasini and thus, he became a trespasser in the suit property after the death of Subhasini. D. The defendant/respondent contested the said suit by filing written statement and additional written statement therein. Though the defendant initially challenged the plaintiffs title in the suit property and claimed to have succeeded the said tenancy right as a legal heir of Subhasini Saha but ultimately in the additional written statement he clarified that he being the adopted son of Harekrishna Saha, inherited the said tenancy on the death of Subhasini Saha as her only heir. E. The parties led their respective evidence in support of their respective pleadings. F. The learned Trial Judge ultimately decreed the said suit by disbelieving the defendants claim for his adoption as son by Harekrishna Saha. The learned Trial Judge held that the defendant did not inherit the tenancy right of Subhasini in the suit property. The learned Trial Judge further held that the defendant was staying in the suit property with Harekrishna and Subhasini as their licensee and on their death, the defendant became a trespasser in the suit property. The learned Trial Judge found that the defendant failed to prove his adoption as son by Harekrishna Saha. The learned Trial Judge also found that not only the defendant failed to produce any valid acceptable evidence in support of his claim for adoption as son by Harekrishna but also he filed a suit against his other brothers and sisters claiming his interest in the properties left by his natural father. In the said suit he claimed himself to be the son of his natural father. In the said suit he claimed himself to be the son of his natural father. Thus, by taking into consideration the pleadings and evidence of the parties in its entirety, the learned Trial Judge came to the conclusion that the defendant was not the adopted son of Harekrishna. The defendant was declared as a trespasser in the suit property by the learned Trial Judge. Accordingly, a decree for eviction was passed against the said defendant in the said suit. G. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, an appeal was preferred by the defendant/respondent herein before the learned First Appellate Court. The learned First Appellate Court allowed the said appeal by setting aside the judgment and decree of the learned Trial Judge by holding inter alia that the suit is not maintainable for non-joinder of necessary parties. The learned First Appellate Court held that the tenancy right of Subhasini Saha on her death, devolved upon a living brother of her husband and since the said living brother of Harekrishna has not been impleaded as a party in the suit, this Suit is not maintainable for non-joinder of necessary parties. Accordingly, the appeal was allowed and the judgment and decree of the learned Trial Judge was set aside. (3) The propriety of the said decree of the learned First Appellate Court is under challenge in this appeal before this Court. While admitting this appeal, the Division Bench of this Honble Court was pleased to formulate the following substantial question of law on which the instant appeal will be heard. Those two substantial questions of law are as follows : 1. For that the learned Appellate Court has failed to consider that it was nobodys case that the suit was not maintainable for non-joinder or mis-joinder of parties. 2. For that the learned Appellate Court has exceeded his jurisdiction while deciding the said appeal inasmuch as neither party has raised any question that the right of tenancy of Subhasini devolved upon Jatindra Mohan Saha, the brother of Harekrishna. (4) This appeal was heard on the above two substantial questions of law. Heard Mr. Roy Chowdhury, learned Senior Consul, appearing for the appellant and Mr. Chatterjee, learned Senior Counsel, appearing for the respondent. Considered the materials on record including the judgment and decrees of the Courts below. (4) This appeal was heard on the above two substantial questions of law. Heard Mr. Roy Chowdhury, learned Senior Consul, appearing for the appellant and Mr. Chatterjee, learned Senior Counsel, appearing for the respondent. Considered the materials on record including the judgment and decrees of the Courts below. (5) Let me now consider as to how far the learned First Appellate Court was justified in passing the impugned judgment and decree in the facts of the instant case. (6) Though the title of the plaintiff in the suit property was challenged by the defendant/respondent in his written statement but in course of giving evidence, the defendant admitted that the suit property was purchased by the appellant from the erstwhile owner thereof who inducted Harekrishna Saha as tenant in the suit property. The defendant also admitted that notice of attornment was served upon Harekrishna Saha after transfer of the suit property by the original owner thereof in favour of the plaintiff. The plaintiff also proved the title deeds through which he purchased the suit property from the original owner thereof. Thus, this Court has no hesitation to hold that the plaintiff is the owner of the suit property. (7) Let me now consider the status of the defendant in the suit property. Before entering into the disputed question of facts, this Court records the admitted facts herein. Admittedly Harekrishna Saha was a tenant in respect of the suit premises under the erstwhile owner thereof through whom the plaintiff purchased the suit property. It is an admitted fact that Harekrishna Saha had no issue. It is also an admitted fact that on the death of Harekrishna Saha, his tenancy was inherited by his widow Subhasini Saha. Parties are step brothers and Harekrishna Saha was the uncle of the parties. (8) Trouble started on the death of Subhasini as the defendant claimed that he being the adopted son of Harekrishna Saha, inherited the tenancy on the death of Subhasini Saha. The defendant also claimed that on the death of Subhasini Saha, he became the sole tenant in the suit property and he paid and/or deposited rent in respect of the suit property to his landlord. On the contrary, the plaintiff claimed that on the death of Subhasini, the tenancy right of Subhasini merged with the landlords right as Subhasini left no heir to inherit her tenancy. On the contrary, the plaintiff claimed that on the death of Subhasini, the tenancy right of Subhasini merged with the landlords right as Subhasini left no heir to inherit her tenancy. The plaintiff further claimed that since he was staying with Subhasini in the suit premises, possession remained with him, since the time of death of Subhasini The aforesaid pleadings of the parties make it clear that the dispute relates to the defendants claim of inheritance in respect of the tenancy left by Subhasini. Thus, if the defendant succeeds in proving that he was adopted as son by Harekrishna, then the suit will fail. On the contrary, if the plaintiff succeeds in proving that the defendant was not the adopted son of Harekrishna and he did not inherit the tenancy right on the death of Subhasini then the defendant is nothing but a trespasser in the suit property and as such, he will have to suffer a decree for eviction. (9) From the aforesaid pleadings it is crystal clear that it was nobodys case that at the time of death of Subhasini a brother of Harekrishna was alive and since Harekrishna had no issue, the said tenancy right of Subhasini devolved upon the said living brother of Harekrishna on the death of Subhasini. (10) It is, however, true that in course of evidence of the defendants witness being D.W.1 he stated that Harekrishna Saha has a living brother. Considering that part of the evidence, the learned Appeal Court held that if Harekrishna had no issue then on his death, his tenancy was inherited by his widow Subhasini and on her death the said tenancy right devolved upon the said living brother of Harekrishna as per the Hindu Law of Succession. Thus, the learned Appeal Court held that the tenancy of Subhasini was actually inherited by the said living brother of Harekrishna and in his absence, the suit for eviction cannot be maintained on account of non-joinder of necessary party. (11) Accordingly the judgment and decree of the learned Trial Judge was set aside. The suit thus, stood dismissed and the appeal was allowed. (12) The learned First Appellate Court, however, did not consider the merit of the other claims and counter-claims of the parties in the said suit. Thus, only on the ground of non-joinder of necessary party, the suit was dismissed. The suit thus, stood dismissed and the appeal was allowed. (12) The learned First Appellate Court, however, did not consider the merit of the other claims and counter-claims of the parties in the said suit. Thus, only on the ground of non-joinder of necessary party, the suit was dismissed. In my view, the learned first Appellate Court ought to have ignored that part of the evidence of the defendant, as inheritance of the tenancy right by the living brother of Harekrishna on the death of Subhasini was not the claim of any of the parties in the suit. It is well settled that no amount of evidence of the parties beyond their pleadings can be looked into by the Court. As such, the learned Appeal Court ought to have ignored that part of the evidence of the defendant by following the Privy Council decision in the case of Siddik Mohmed Shah Vs- M.P. Saran and Ors. reported in AIR 1930 Privy Council page 57. (13) Under such situation two options are now open to this Court. One of such options is to set aside the judgment and decree of the learned First Appellate Court and to send the appeal on remand to the learned First Appellate Court for fresh consideration on the merit of this appeal. The other option is to dispose of the appeal itself on merit by following the provision contained in Section 100 read with Section 103 together with the provision contained in Order 41 Rule 24 of the Civil Procedure Code, as all the materials for consideration of the merit of the appeal are available before this Court. (14) Since all the materials are now available before this Court, it will not be prudent for this Court to follow the first option. Accordingly, this Court thinks it proper to follow the other alternative option as mentioned above. (15) I have already held that the plaintiffs title in this suit property has been proved. Since the merit of this appeal depends upon the determination of the status of the defendant, let me now ascertain the status of the defendant with reference to their respective pleadings and evidence on record. The defendant claims that he is the adopted son of Herekrishna. The defendant could not produce any material to show that he was ever adopted as son by Herekrishna Saha. The defendant claims that he is the adopted son of Herekrishna. The defendant could not produce any material to show that he was ever adopted as son by Herekrishna Saha. The affidavit which was affirmed by Subhasini indicating therein that the defendant was the adopted son of Herekrishna, cannot be regarded as a document of adoption. The defendant admitted in his cross-examination that he filed a suit against his brothers claiming interest in the property of his natural father. In the said suit, the defendant claimed himself to be the son of Jatindra Mohan Saha. This shows that the defendants claim for his adoption by Herekrishna as his son, cannot be accepted. Even assuming that he was adopted as son by Herekrishna, but in that event he ought to have claimed tenancy right along with his mother Subhasini by way of inheritance, on the death of Herekrishna. The defendant never claimed that he inherited the tenancy right along with his mother Subhasini upon the death of Herekrishna. If all these facts are taken together, then it will unequivocally prove that the defendant did not acquire any tenancy in the suit property through Subhasini. The defendant also did not claim any independent right of tenancy devoid of the interest of Herekrishna and/or Subhasini. As such, this Court has no hesitation to hold that the defendant is not a tenant in the suit property. (16) Mr. Basu, learned Advocate, appearing for the respondent tried to impress upon this Court that on the death of Subhasini, no brother and/or sister of Herekrishna was alive. Mr. Basu further submitted that Jatin who was the father of the parties was the only brother of Harekrishna and since Jatin predeceased Subhasini, the heirs of Jatin viz. the plaintiff, defendant and their other four brothers and four sisters inherited the said tenancy in common, on the death of Subhasini. (17) This Court is unable to give any importance to this part of the submission of Mr. Basu as there is no foundation of such claim either in the written statement or in the additional written statement filed by the defendant or in his evidence in the suit. Furthermore, it is nobodys case that the suit is not maintainable for non-joinder of necessary party. Nobody has disclosed the name of the living brother of Harekrishna who was alive at the time of death of Subhasini. Furthermore, it is nobodys case that the suit is not maintainable for non-joinder of necessary party. Nobody has disclosed the name of the living brother of Harekrishna who was alive at the time of death of Subhasini. The said alleged living brother has not come forward to claim his tenancy right in the suit property. The parties are also not claiming any right in the suit property through the said living brother of the Harekrishna. As such, this Court, under such circumstances, cannot make any robbing enquiry as to the inheritance of the tenancy right of Subhasini by the said alleged living brother of Harekrishna. (18) The Court has to restrict its consideration to the facts in issue in the suit. The Court cannot introduce a third case which is neither the case of the plaintiff nor the case of the defendant. (19) Even if any third party has any claim in the suit property, there are various ways by which such claim of the third party can be adjudicated even at the execution stage by following the provisions of Order 21 Rule 97 to Rule 101 of the Civil Procedure Code. Up till now no living brother has come forward to lay any claim of his tenancy right in the suit property. (20) Thus, the totality of circumstances, show that upon the death of Subhasini, the defendant did not acquire any tenancy right in the suit property. His possession in the suit property cannot be regarded as lawful possession. His possession is nothing but the possession of a trespasser. As such, he cannot protect such possession, when the lawful owner has come forward to recover the possession of the suit property from a trespasser by filing this suit, particularly when the tenancy right of Subhasini merged with the owners interest on the death of Subhasini, as Subhasini left no heir to inherit the suit property or at least no heir of Subhasini has come forward to claim his tenancy right in the suit property. (21) Under such circumstances, this Court holds that the defendant is a trespasser in the suit property. Thus, the plaintiff being the owner of the suit property is entitled to recover possession of the suit property from such a trespasser. In the aforesaid context, this Court is unable to maintain the judgment and decree passed by the learned First Appellate Court. Thus, the plaintiff being the owner of the suit property is entitled to recover possession of the suit property from such a trespasser. In the aforesaid context, this Court is unable to maintain the judgment and decree passed by the learned First Appellate Court. The judgment and decree of the learned First appellate Court, thus, stands set aside and the judgment and decree of the learned Trial Judge is, thus, restored. The defendant is, however, given two months time for vacating the suit premises and/or for delivering vacant and peaceful possession thereof to the plaintiff. In default thereof, the plaintiff will be at liberty to recover vacant and khas possession of the suit property by evicting the defendant therefrom by executing this decree in accordance with law. (22) The appeal, thus, stands allowed. (23) Let the Lower Court records be sent down to the Court below. (24) Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.