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2009 DIGILAW 654 (CAL)

Binode Kumar Shaw. v. S. L. Paul

2009-08-25

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1) This first appeal is directed against the judgment and decree dated July 31, 1993, passed by the learned Judge, City Civil Court, Eighth Bench, Calcutta, in Title Suit No.1829 of 1979 thereby dismissing the suit on contest with costs. The case made out in the plaint, in short, is that the father of the appellant was a monthly tenant in respect of one godown as described in the schedule to the plaint under the respondents from 1974 at a monthly rental of Rs.150/-payable according to English calendar and the father of the appellant had been carrying on business of selling waste papers and waste old papers after obtaining licence from the Corporation of Calcutta. The respondents realized rents for the said premises in suit month by month by sending their Durwan with typed chits. Thereafter, on September 9, 1979, the respondents came to the premises in suit with some local hooligans to forcibly oust the father of the appellant from the premises in suit. Then the father of the appellant was compelled to file an application under Section 144(2) of the Code of Criminal Procedure before the Executive Magistrate. The predecessor-in-interest of the appellant was illiterate and he came to know afterwards that the respondents did not issue proper rent receipts. He also came to know that the respondents filed a proceeding for eviction after revocation of licence in respect of the suit premises along with its mezzanine room against one person and wanted to get possession of that premises including the suit premises. That was a fraudulent proceeding as the respondents tried to oust the original plaintiff. Hence, he filed a suit for declaration that he was a tenant in possession of the said godown. He also prayed for permanent injunction restraining the respondents from disturbing possession of the plaintiffs. During the pendency of the suit, the original plaintiff having died, the appellant, his son, was substituted in his place. (2) The respondents contested the suit by filing a written statement denying all the materials allegations made in the plaint. They denied that they had collected any rent through the Durwan by sending typed chits. They also denied that the proceeding for eviction filed by them was collusive. Actually, the father of the appellant had no right, title and interest in the said godown. They denied that they had collected any rent through the Durwan by sending typed chits. They also denied that the proceeding for eviction filed by them was collusive. Actually, the father of the appellant had no right, title and interest in the said godown. One Satya Narayan Jagdish Prosad Joshi was a licensee in respect of the said suit premises along with its mezzanine room at a monthly rental of Rs.125/- and Rs.50/- as corporation taxes at premises no.3, Bowbazar Street, Calcutta. He failed to pay the licence fee to the landlords since September, 1976. So the licence was revoked and the proceeding for eviction was filed for recovery of possession against him. That proceeding ended in compromise on May 2, 1979. The Satya Narayan Jagdish Prosad Joshi agreed to vacate the suit premises on or before May 15, 1979. But he failed to deliver vacant possession according to the terms of the compromise. The respondents were compelled to file the execution case for recovery of possession. The bailiff went to deliver possession; but he was resisted. Then the respondents prayed for police help for delivery of possession. In the meantime, the father of the appellants filed the said suit from which this appeal has arisen in respect of the garage which was the part of the subject-matter of the eviction proceeding. So the suit should be dismissed. (3) Upon consideration of the evidence on record, the learned Trial Judge dismissed the suit on contest. Mr. Sarkar, learned Advocate for the appellant, contended that the original plaintiff was inducted as a tenant in respect of the suit premises in September, 1974, and since then he was in possession of the premises in suit till his death and after his death the appellant has been possessing the suit premises all along. The landlord collected rents through Durwan who visited the house of the tenants and granted chit receipts at once which were followed by regular receipts. He also contended that the exhibit no.2 (collectively) is the bunch of such chits of receipt of rents. He also contended that unless and until any possession of the premises is shown, the municipality did not grant any licence in respect of any business. The original plaintiff contended that he ran a business of waste papers by paying licence fees to the municipality. He also contended that unless and until any possession of the premises is shown, the municipality did not grant any licence in respect of any business. The original plaintiff contended that he ran a business of waste papers by paying licence fees to the municipality. Exhibit no.1 (collectively) contains the relevant papers to show that licence fees had been paid by Kedar Nath Shaw and so it must be held that the original plaintiff was a tenant in respect of the suit premises. So, after his death, his heirs, that is, the present appellant having stepped into the shoes of Kedar Nath was entitled to get a decree of declaration and permanent injunction as prayed for. He contended that the learned Trial Judge has failed to appreciate the evidence on record and thus wrongly dismissed the suit. (4) Upon hearing the submission of the learned Advocate for the parties and on perusal of the materials on record, we are of the view that the submissions advanced by Mr. Sarkar are not convincing at all. Upon perusal of all the materials on record, we find that admittedly the respondents were the owners of the premises at 3, Bowbazar Street, Kolkata 700 012 and Mr. P. K. Paul, the respondent no.2, collected rents from the tenants on behalf of all the landlords. As per evidence of the P.W.1 as well as the admission of the appellants, we find that there are about 40 tenants at the premises no.3, Bow Bazar Street under P.S.-Bowbazar, Calcutta 700 012, and that P. K. Paul collected rents on behalf of all the landlords from the tenants/licensees upon granting receipts. Now the suit premises involved in the suit are in respect of one garage at premises no.3, Bow Bazar Street. Previously, the landlords filed a proceeding for eviction against one licencee, namely, Satya Narayan Jagdish Prosad Joshi, in respect of the premises mentioned in the said proceeding for eviction bearing no.2092 of 1978 in the Small Causes Court, Calcutta. That suit property comprised the suit premises of this suit and one mezzanine room above the said garage. Previously, the landlords filed a proceeding for eviction against one licencee, namely, Satya Narayan Jagdish Prosad Joshi, in respect of the premises mentioned in the said proceeding for eviction bearing no.2092 of 1978 in the Small Causes Court, Calcutta. That suit property comprised the suit premises of this suit and one mezzanine room above the said garage. If we consider the plaint of that proceeding (marked exhibit A) and the suit premises described in the body of the plaint of the suit from which this appeal arose, we find that the suit premises involved in the suit under question is a part of the premises described in the plaint of the proceeding no.2092 of 1978 (Exhibit A). It was the contention of the plaintiff of that suit that Satya Narayan Jagdish Prosad Joshi was a licencee in respect of that property and he failed to pay licence fees. For that reason, the owners filed a proceeding for eviction and that proceeding ended in compromise on May 2, 1979. The plaintiffs of that proceeding contended that Satya Narayan Jagdish Prosad Joshi was inducted in respect of that property in the year 1976 (exhibit B). (5) According to the terms of compromise Satya Narayan Jagdish Prosad Joshi was to vacate the suit property on or before May 15, 1979 but he failed to deliver possession within the stipulated date. Accordingly, the owners had to file one application for execution and the bailiff went to deliver possession in favour of the applicants and such a process was resisted by the licencee, Satya Narayan Jagdish Prosad Joshi. The owners had to seek help for police. Such attempt was also resisted by a group of 15 women and the Court directed the applicants to deposit costs by September 10, 1979, (vide exhibit B). The applicants complied with such directions and the next date for delivery of possession with the help of police was fixed on October 30, 1979. In the meantime, we find that on September 17, 1979, the original plaintiff of the suit from which this appeal arose filed the suit praying for the reliefs already stated and such suit is with regard to the part of the premises over which the owners took steps for recovery of possession by police help against the said licencee, Satya Narayan Jagdish Prosad Joshi. That proceeding was filed in the year 1978 stating Satya Narayan Jagdish Prosad Joshi was inducted in the suit property in 1976. So those papers could not be said to be concocted. Rather doubt arises why the predecessor-in-interest of the present appellants filed the suit on September 17, 1979, when the owners were taking necessary steps for eviction against the recorded licencee with the help of police. (6) What is more surprising is that the appellant claimed that the exhibit no. 2 (collectively) is the admission in support of grant of rent receipts by chits. The P.W.1 Kedar Nath stated that Mr. P. K. Paul inducted him as a tenant and he collected rents from the tenants on behalf of the landlords. But we find from the materials on record that while the original plaintiff filed the suit for declaration and injunction he forgot to include the name of Mr. P. K. Paul and it was subsequently added by way of amendment of the plaint. Moreover, the P.W.1 in evidence asserted that one Durwan allegedly collected rent after going to the house of the respective tenants and they all were given receipts for payment of rent in the printed form. But the appellant could not produce any grant of receipt in the printed form. The appellant failed to produce the first receipt, if any, granted by the owners to Kedar Nath showing the extent of the alleged tenancy or the occupation of the original plaintiff. The so-called chit exhibit 2 (collectively) was tendered to the witness, P. K. Paul, who categorically denied that it was issued by him to the original plaintiff of the suit. In spite of such denial by the P.W.1, the appellants did not take any step for appointment of any handwriting expert to ascertain whether signatures appearing on Exhibit 2 were of Mr. P. K. Paul. So the evidence led by the appellants is full of suspicion. (7) The Kolkata Municipal Corporation might grant trade licence for business on the basis of the forged rent receipts shown for the said purpose. P. K. Paul. So the evidence led by the appellants is full of suspicion. (7) The Kolkata Municipal Corporation might grant trade licence for business on the basis of the forged rent receipts shown for the said purpose. In the instant appeal, we find from the materials on record that in the month of September, 1979, anyhow the original plaintiff of the suit got possession of the garage which was a part of the property described in eviction proceeding (vide exhibits -B, C and D) and then he filed the suit for declaration and injunction as stated herein. So, though the appellants father might possess the premises in suit, we are of the view that he cannot be described at all as tenant under the respondents. So the prayer of the appellant for declaration of his tenancy right over the premises in suit cannot be granted under any circumstances. (8) We are, therefore, of the view that the learned Trial Judge has rightly dismissed the suit and that the present appeal is meritless. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. (9) Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings.