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2011 DIGILAW 1349 (CAL)

Ashoke Kumar Nandi v. Digbijoy Sinha

2011-09-26

Tapan Kumar Dutt

body2011
JUDGMENT Tapan Kumar Dutt, J : This Court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows: 2. The plaintiff/appellant filed a suit for eviction against the defendants/respondents in respect of the suit premises as described in the plaint and also a decree for mesne profits on the ground that the defendants have committed default in payment of rents and the plaintiff reasonably requires the suit premises for own use and occupation. The said suit being Title Suit 75 of 2000 was placed before the learned Civil Judge (Junior Division), Bishnupur. The defendant No.1 contested the said suit by filing a written statement denying the material allegations made in the plaint. It appears that the dispute regarding landlord and tenant relationship between the parties was raised by the defendant No.1 and it appears that defendant No.1 also raised a dispute by taking the stand that the suit is bad for defect of parties. It appears that an additional issue was framed with regard to the question as to whether the suit is bad for non-joinder and/or misjoinder of the parties. The said suit ultimately came up for hearing when the learned Trial Court by judgment and decree dated 27th September, 2004 decreed the said suit on contest against the defendant No.1 and ex parte against the defendant Nos. 2 and 3 and directed that the plaintiff/appellant does get a decree for khas possession of the suit premises by evicting the defendants therefrom, and the plaintiff’s claim that mesne profits was also decreed with liberty to the plaintiff to take the appropriate steps in this regard. The learned Trial Court found that there was relationship of landlord and tenant in between the plaintiff and the defendants and that the original tenant was one Ramsaday Sinha. It may be noted here that the defendants are the sons of the said Ramsaday Sinha. The learned Trial Court held that from the evidence on record it transpired that the said Ramsaday Sinha got his daughters married off during his life time and the said daughters of Ramsaday Sinha have been living at their respective in-laws’ house. It may be noted here that the defendants are the sons of the said Ramsaday Sinha. The learned Trial Court held that from the evidence on record it transpired that the said Ramsaday Sinha got his daughters married off during his life time and the said daughters of Ramsaday Sinha have been living at their respective in-laws’ house. It further appears from the judgment of the learned Trial Court that during the pendency of the suit, one of such daughters of the said Ramsaday Sinha appeared and prayed for addition of party to contest the suit but such petition was rejected by the learned Trial Court and the order of the learned Trial Court was affirmed by the Hon’ble High Court. It was argued on behalf of the defendant No.1 before the learned Trial Court that the six daughters of the said Ramsaday Sinha are necessary parties to the suit. The learned Trial Court did not accept the arguments made on behalf of the defendant No.1 in the said suit and decreed the said suit on the ground that the plaintiff has been able to prove his bona fide and reasonable requirement of the suit premises for own use and occupation and the defendant No.1 has failed to prove that the plaintiff has any alternative and suitable accommodation elsewhere. The learned Trial Court, of course, found that the defendants are entitled to get relief under Section 17(4) of the West Bengal Premises Tenancy Act, 1956. With regard to the issue as to whether a valid notice was served upon the defendants or not the learned Trial Court found that a valid notice was served upon the defendants and the said issue was decided in favour of the plaintiff/appellant. 3. That challenging the learned Trial Court’s judgment and decree the defendant No.1 preferred title appeal No. 5 of 2005 which was placed before the learned Additional District Judge, Bankura, who by his judgment and decree dated 28th July, 2005 allowed the said title appeal and set aside the judgment and decree of the learned Trial Court. 4. It appears from the impugned judgment that two points were urged on behalf of the defendant/respondent No.1 before the learned Lower Appellate Court. 4. It appears from the impugned judgment that two points were urged on behalf of the defendant/respondent No.1 before the learned Lower Appellate Court. One of such points was that the suit is bad for defect of parties and the other point was that the suit is bad as the same was instituted on the basis of a second notice without waving the first notice to quit. The learned Lower Appellate Court found that the plaintiff/appellant had filed the suit against the three sons of the original tenant (Ramsaday Sinha) and the plaintiff’s case was that the sisters of the defendants have impliedly surrendered the tenancy right in respect of the suit property because they have been residing in their respective father-in-law’s house since their marriage and the marriages of all the daughters of the said Ramsaday were held during the life time of Ramsaday. It was the case of the defendant/respondent No.1 that the plaintiff’s suit must fail because the daughters of the original tenant (Ramsaday) were not made parties to the suit. The learned Lower Appellate Court found that after the death of contractual tenant, all of his legal heirs and heiresses would become tenants in respect of the tenanted accommodation whether such heirs or heiresses are in possession or not. The learned Lower Appellate Court came to the conclusion that the suit is bad for defect of parties and as such it is not maintainable in law. 5. With regard to the other point, the learned Lower Appellate Court found that by sending the second ejectment notice dated 31.07.1997 the plaintiff/appellant had waived the earlier notice dated 17.02.1993.The learned Lower Appellate Court did not accept the arguments made on behalf of the defendant/respondent No.1 on the point of notice. 6. The plaintiff/appellant, challenging the aforesaid judgment and decree passed by the learned Lower Appellate Court, has filed the present second appeal. 7. 6. The plaintiff/appellant, challenging the aforesaid judgment and decree passed by the learned Lower Appellate Court, has filed the present second appeal. 7. It appears from the records that an Hon’ble Division Bench of this Court by order dated 23.11.2005 admitted the appeal for hearing on the following substantial questions of law: (a) “whether the learned Court of Appeal below committed substantial error of law in holding that the suit was bad for non-joinder of the married daughters of the landlord by not at all considering the specific case of surrender of tenancy taken by the plaintiff in the plaint; (b) In spite of the specific case made out by the plaintiff that after the death of the original tenant, the married daughters surrendered their tenancy right by their conduct and such plea not having been decided by the learned Court of Appeal below, whether such Court was competent to dismiss the suit on the ground of defect of the parties. (c) The learned Trial Judge having decided that there existed the relationship of the landlord and tenant between the parties as alleged in the plaint, whether the learned Court of Appeal below was justified in dismissing the suit without reversing that finding;” 8. In the context of this case, it appears that in ground(a), as quoted above, the Hon’ble Court intended to formulate the ground to the effect as to whether the learned Court of Appeal below had committed in substantial error of law in holding that the suit was bad for non-joinder of the married daughters of the original tenant (Ramsaday Sinha) by not at all considering the plaintiff’s case of surrendered of tenancy. 9. The learned Counsel for the appellant referred to that portion of the impugned judgment where the learned Lower Appellate Court while considering the reported decision of the Hon’ble Supreme Court found that when the notice terminating tenancy was addressed and served upon one of the sons of the original tenant who paid rent on behalf of all and acted on behalf of all the heirs of the original tenant the notice to only one of the joint tenants could not be said to be insufficient. The said learned Counsel referred to Paragraph 6 of the plaint where the case of implied surrender was pleaded by the plaintiff and he submitted that the said case of the plaintiff was not considered by the learned Lower Appellate Court. He submitted that the married daughters of the said original tenant have been and are living in their respective matrimonial homes and they do not live in the suit property and they have impliedly surrendered their alleged right of tenancy if at all they had any such right. He submitted that the married daughters had never asserted their alleged right in the suit property. He also submitted that it would be impossible for landlord to evict a tenant if such tenant dies leaving behind a large number of heirs residing at different places in the world. He also submitted that one of the daughters of the said original tenant had filed an application for addition of party but the learned Trial Court rejected such application and the Hon’ble High Court did not interfere with the decision of the learned Trial Court in this regard when the learned Trial Court’s said order was sought to be challenged in revisional jurisdiction before the Hon’ble High Court. The learned Counsel for the appellant submitted that the instant case is one where the doctrine of substantial representation can be applied. He referred to a judgement reported at 1989(2) CLJ 351 (Smt. Sumilita Bhattacharya & Anr. v. Smt. Nila Chatterjee). It appears from the perusal of the said reports that it was held in the said reports that it is a discretion on the part of such heir of the original tenant either to accept the heritable right of tenancy and/or to renounce the same and such heir can surrender such tenancy right either expressly or by conduct. It appears from the said reports that a heritable tenancy right may be accepted or abandoned or relinquished by the heirs of the original tenant. It appears from the said reports that it was found in the said case that the tenancy right of some of the alleged heirs of the original tenant were found to be relinquished and/or abandoned by their conduct as it appeared in the said reported case that such alleged heirs did not assert any right of tenancy in respect of the property concerned. 10. 10. The said learned Counsel cited another decision reported at 1998(1) CHN 521 (Amal Krishna Aditya v. Ganesh Chandra Das) and reference was made to Paragraphs 16 and 17 of the said reports in support of his contention that since the defendants (sons of said Ramsaday Sinha) were served with the notice of the suit and have been made parties the doctrine of substantial representation can be applied in the instant case. 11. The said learned Counsel cited a decision reported at 2000(2) CHN 30 (Santosh Kumar Mitra & Anr. v. Smt. Snehalata Roy & Anr.). It appears from the said reports that one of the heirs of the deceased original tenant was not residing in the suit premises for a long time and it was held that a case of implied surrender can easily be inferred from the evidence and the conduct of the defendants in the suit concerned. It was also held in the said reports that the doctrine of representation would operate in the said case as it appears from the records that one of the heirs of the deceased original tenant was residing elsewhere and heirs and legal representatives of the deceased tenant made arrangement that the rent was to be paid by a particular defendant alone and as such the question of filing the eviction suit also against the heir of the original deceased tenant who was living elsewhere for a long time and had practically become a permanent resident of Delhi does not arise. 12. The said learned Counsel cited a decision reported at 1991(3) SCC 114 (Suryayya Begum(Mst) v. Mohd. Usman & Others) in support of his submission that the doctrine of the substantial representation can be applied in the facts of the instant case. The said learned Counsel cited a decision reported at 2007(3) SCC 123 (Shkuntala Vasant Pahadi & Ors. v. Purushottam Vasant Pethe & Ors.) in support of his contention that in the absence of allegation and proof that there has been any collusion between the defendants and the plaintiff in the present suit for eviction the decree passed by the learned Trial Court should not be set aside. 13. The said learned Counsel cited a decision reported at 39 CLJ 251 (Irrani Mundle & Ors. 13. The said learned Counsel cited a decision reported at 39 CLJ 251 (Irrani Mundle & Ors. v. Naimuddin Sardar & Ors.) in support of his contention that where an order made in the course of a suit is final it cannot be retried by the Judge in the course of the same litigation. 14. He cited a decision reported at 1976(1) CLJ 325 (Sushil Chandra Roy Chowdhury v. Sambhu Nath Saha) in support of his contention that the previous order passed by this High Court whereby an Hon’ble Single Judge of this Court had refused to interfere in revisionsal jurisdiction with an order of rejection (by the learned Trial Court) of an application for addition of party by one of the married daughters of the said Ramsaday Sinha is binding upon a Bench of coordinate jurisdiction. As a matter of principle the said submission is correct but it appears from a xerox copy of the order dated 09.09.2004 passed by an Hon’ble Single Judge of this Court in C.O. No. 2767 of 2004 that the question as to whether or not the said daughter of the said Ramsaday Sinha had any right of tenancy in the suit premises was not decided. The learned Counsel for the appellant submitted that the learned Lower Appellate Court did not decide the case of the plaintiff that the daughters of the said original tenant Ramsaday Sinha had impliedly surrendered their alleged right of tenancy, if any, and the learned Lower Appellate Court erred in holding that the suit is bad for defect of parties and not maintainable without deciding the aforesaid case of the plaintiff. The said learned Counsel also submitted that the Trial Court had come to the conclusion that there was relationship of landlord and tenant in between the parties but the learned Lower Appellate Court erred in dismissing the suit when there is no finding by the learned Lower Appellate Court that the finding of the learned Trial Court that there is a relationship of landlord and tenant in between the parties is incorrect. 15. 15. The learned Advocate for the contesting defendant/respondent referred to the definition of the word ‘tenant’ in the West Bengal Premises Tenancy Act, 1956 and submitted that Ramsaday Sinha died when he was having the status of a contractual tenant and, thus, all of his heirs became contractual tenant upon the death of the said Ramsaday and, therefore, the notice of suit was required to be served upon all the heirs of the said Ramsaday and all such heirs of Ramsaday were required to be impleaded parties to the suit. It was submitted by the said learned Counsel that the definition of the word ‘tenant’ in the said Act of 1956 contemplates the death of a statutory tenant and not a contractual tenant and, thus, that part of the provisions of Section 2(h) of the said Act of 1956 which stipulates regarding heirs of the deceased tenant ordinarily residing in the tenanted premises with the tenant at the time of the death relates to a statutory tenant and not a contractual tenant. According to the said learned Advocate, Ramsaday died as a contractual tenant and, therefore, the stipulation with regard to an heir of the original tenant residing with the original tenant in the suit premises at the time of death of the original tenant is not applicable to the instant case. He cited a decision reported at 2006(1) CHN 513 (Jaharlal Saha & Ors. v. Pradip Saha & Ors.) wherefrom it appears that the Hon’ble Division Bench of this Court was pleased to hold that where the notice of suit is not addressed to all the heirs of a deceased contractual tenant but only against some of the heirs such notice must be held to be invalid. The said Hon’ble Court also pleased to hold that the suit was not maintainable in the absence of all the heirs of the deceased contractual tenant. It appears some of the reported cases cited on behalf of the appellant were considered by the Hon’ble Division Bench in the said reports. 16. The learned Advocate for the contesting defendant/respondent submitted that the appellant cannot be allowed to take alternative pleas if such pleas are self-contradictory with each other. It appears some of the reported cases cited on behalf of the appellant were considered by the Hon’ble Division Bench in the said reports. 16. The learned Advocate for the contesting defendant/respondent submitted that the appellant cannot be allowed to take alternative pleas if such pleas are self-contradictory with each other. He submitted that if there is a case of implied surrender then the question of applying the doctrine of substantial representation does not arise, and the doctrine on representation was not urged in the plaint and the applicability of the doctrine of representation was not pleaded in the plaint. As such the appellant is not entitled to take such plea at this stage in the second appeal. He referred to a decision reported at 2000(2) CHN 30 wherein the Hon’ble Court was pleased to observe that the submissions which were not urged before the learned Trial Court may not be permitted to be raised for the first time in appeal. The said learned Advocate submitted that when Ramsaday Sinha died he was a contractual tenant and all his successors had inherited the tenancy as tenants-in-common and since it was a single tenancy each of such successors of Ramsaday Sinha could not have surrendered his/her alleged right separately. He submitted that notice of suit was not addressed to the daughters of the said Ramsaday Sinha and, therefore, the notice was bad in law. He referred to the decision reported at 1998(1) CHN 521 in this regard. He strongly relied upon the decision reported at 2006(1) CHN 513 and submitted that some of the judgments referred to by the learned Counsel for the appellant was subsequently held to be not a good law. 17. The said learned Counsel for the contesting defendant/respondent also relied upon a decision reported at 1995(1) SCC 164 (Kumar Jagdish Chandra Sinha & Others v. Eileen K. Patricia D’rozarie (Mrs) and referred to Paragraphs 10 to 16 of the said reports wherefrom it appears that the Hon’ble Court was pleased to observe, inter alia, that a contractual tenant has an estate or interest in the subject-matter of the tenancy and heritability is an incidence of such tenancy. It was further observed that in the absence of any provision in the Act to the contrary, all the heirs of such a tenant would, therefore, on his death, step into his shoes. It was further observed that in the absence of any provision in the Act to the contrary, all the heirs of such a tenant would, therefore, on his death, step into his shoes. The Hon’ble Court was pleased to observe that the heirs of a statutory tenant had no right to the tenancy as such right was personal. The Hon’ble Court was pleased to observe that the words “in the event of such person’s death” in Section 2(h) of the said Act of 1956 referred only to the death of the person who was continuing in possession after the termination of his tenancy and not also to the person referred to in its earlier clause, namely, the contractual tenant. The learned Advocate for the contesting defendant/respondent submitted that when a contractual tenant dies the question whether some of the heirs of such contractual tenant were ordinarily residing with such tenant or not is a not relevant question. The said learned Counsel submitted that even if married daughters of Ramsaday Sinha were made parties to the suit still the suit would have failed because no notice was served upon such daughters of the said Ramsady Sinha. He also referred to a decision reported at 1999(6) SCC 634 (T.K. Lathika v. Seth Karsandas Jamnadas). In paragraph 12 of the said reports the Hon’ble Court was pleased to observe that “The principle which governs the doctrine of implied surrender of a lease is that when a certain relationship existed between two parties in respect of a subject-matter, and a new relationship has come into existence regarding the same subject-matter, the two sets cannot coexist, being inconsistent and incompatible between each other i.e. if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alternation or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-à-vis the erstwhile demise and then judged whether there was termination of the old jural relationship by implication.” 18. A mere alternation or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-à-vis the erstwhile demise and then judged whether there was termination of the old jural relationship by implication.” 18. The said learned Counsel cited another decision reported at AIR 1990 SC 2053 (Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup & Another) in support of his submission that the plaintiff/appellant was also under the obligation to address and serve the notice of suit upon the daughters of the said Ramsaday Sinha and the eviction suit filed by the plaintiff/appellant is bad in law as the notice of suit was not addressed to the daughter of the said Ramsaday and the said daughters of Ramsaday were not made parties to the suit. 19. Before deciding the question as to whether or not the suit filed by the plaintiff/appellant is bad in law as the daughters of the said Ramsaday were not impleaded as parties to the suit, it is important to decide the case of the plaintiff as to whether or not there was an implied surrender on the part of the said daughters of Ramsaday. It has been seen in the said Sumilita Bhattacharya’s case (supra) that the heir of deceased contractual tenant has the discretion to accept the heritable right of tenancy and/or the renounce such right. In a given case, facts and circumstances of the case may indicate that an heir of the original contractual tenant who has died, has relinquished his/her right in the tenancy concerned. It will depend upon the facts and circumstances of each case. The argument that the tenancy being a single tenancy cannot be surrendered separately by any one of the heirs of the original contractual tenant cannot be accepted as a valid argument since if such argument is accepted then one has to come to the conclusion that unless all the heirs of the deceased original contractual tenant agree to surrender the entire tenancy there can be no surrender at all. This would lead to a situation where one of the heirs of a deceased original contractual tenant will loose his/her right to surrender his/her right to the tenancy. This would lead to a situation where one of the heirs of a deceased original contractual tenant will loose his/her right to surrender his/her right to the tenancy. Before answering the question as to whether or not the suit is bad in law in the absence of the daughters of the said Ramsaday Sinha as parties to the suit it is important to answer the question as to whether such daughters or any of them have surrendered impliedly their or her, as the case may be, right to such tenancy. This question has not been decided by the learned Lower Appellate Court. The argument made by the learned Counsel for the defendants/respondents on a point of law as to what happens after the death of a contractual tenant and whether the suit for eviction was validly instituted without addressing and serving a notice of suit upon all the heirs of the deceased original tenant and without impleading all the heirs of such deceased original tenant can be effectively considered and decided only after it is found that the said daughters of Ramsaday or any of them, did not surrender their right to the tenancy in any manner, particularly, by way of implied surrender as pleaded by the plaintiff. If it is ultimately found that the said daughters of Ramsaday or any of them, had made an implied surrender of her or their right to the tenancy, as the case may be, then in that event this Court is of the view that it would not be necessary to go into the question as to whether the said suit was bad in law in the absence of the daughter and/or daughters of the said Ramsaday Sinha, as the case may be, as parties to the suit and in the absence of notice of suit to the said daughter and/or daughters of Ramsaday Sinha as the case may be even if this Court proceeds on the basis that the ratio of the decision reported in 2006(1) CHN 513 , which took into consideration several decisions of various Courts including that of the Hon’ble Supreme Court, holds the field one cannot straight away come to the conclusion that the suit filed by the plaintiff/appellant is bad in law for defect of parties as the question whether there was an implied surrender on the part of the daughter and/or daughters of said Ramsaday has not been decided by the learned Lower Appellate Court. It appears that the learned Lower Appellate court did not reverse the finding of the learned Trial Court that there has been a relationship of landlord and tenant in between the parties to the suit. 20. In view of the discussions made above, this Court is of the view that the matter should be sent back on remand to the learned Lower Appellate Court to decide the plaintiff’s case as to whether or not the said daughters of the said Ramsaday or any of them impliedly surrendered their right to tenancy after the death of the said Ramsaday The learned Lower Appellate Court shall also decide the question as to whether there was a relationship of landlord and tenant in between the parties to the suit since there was no finding in this regard in the impugned judgment. 21. The instant second appeal is thus allowed by setting aside the judgment and decree passed by the learned Lower Appellate Court and by sending the matter back to the learned Lower Appellate Court on remand. 21. The instant second appeal is thus allowed by setting aside the judgment and decree passed by the learned Lower Appellate Court and by sending the matter back to the learned Lower Appellate Court on remand. The learned Lower Appellate Court shall decide the question as to whether or not the daughters of the said Ramsaday Sinha or any of them had impliedly surrendered their or her right to the tenancy on the death of the said Ramsaday and also on the question as to whether there was a relationship of landlord and tenant in between the parties to the suit. For such purpose the learned Lower Appellate Court may allow the parties to the suit to adduce any further evidence if they so desire and if such further evidence is adduced the learned Lower Appellate Court will consider such further evidence along with the materials already on record and thereafter decide the appeal before it in accordance with law. There will be no order as to costs. Urgent certified Xerox copy of this Judgment, if applied for, be given to the parties on compliance of all necessary formalities.