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2012 DIGILAW 760 (CAL)

Dabu Paul @ Prabir Paul v. Sumati Das

2012-08-10

TARUN KUMAR GUPTA

body2012
JUDGMENT Tarun Kumar Gupta, J.:- The defendant is the appellant against this judgment of affirmation. The respondent as plaintiff filed a suit being Title Suit No.379 of 1989 in the Court of learned Civil Judge (Junior Division), Sealdah, alleging that she was the owner of the suit house wherein defendant No.1 Debu Paul alias Prabir Paul’s father-in-law being defendant No.2 was a tenant in respect of one room only. The defendant No.1 is a notorious criminal of the locality and often threatened the plaintiff for taking forcible possession of a room in the suit house. It is further case that defendant No.1 in collusion with defendant No.2 forcibly compelled the plaintiff to sign on some rent receipts and also forcibly took possession of the suit room on 28.05.1983 by evicting plaintiff’s mother therefrom. The plaintiff lodged one G. D. in the local police station on that score. On account of unruly behaviour of the defendant No.1 the plaintiff was compelled to lodge several G. D.s. as well as complaints to the police. As defendant No.1 did not vacate the suit room in spite of requests, the plaintiff filed the present suit for recovery of possession of the same by evicting defendant No.1 trespasser therefrom. 2. The defendant No.1 contested said suit by filing written statement denying material allegations of the plaint and contending inter alia that he was a tenant in respect of the suit room at a rental of Rs.40/- per month payable according to English calendar month and that he was the tenant in that room for last 13 years. The suit was liable to be dismissed being a false one. 3. Learned Trial Court framed several issues on the basis of the pleadings of the parties and came to a finding that defendant No.1 was a trespasser in the suit room and accordingly passed a decree of eviction. The defendant No.1 preferred an appeal being Title Appeal No.16 of 1998 against said judgment of eviction. It was dismissed on contest by the impugned judgment dated 14th of February, 2002. The defendant No.1 has filed this second appeal being aggrieved with the impugned judgment dated 14th of February, 2002. 4. At the time of admission of this second appeal the following substantial questions of law were formulated. It was dismissed on contest by the impugned judgment dated 14th of February, 2002. The defendant No.1 has filed this second appeal being aggrieved with the impugned judgment dated 14th of February, 2002. 4. At the time of admission of this second appeal the following substantial questions of law were formulated. (1) Whether both the Courts below erred in law by not holding that the claim from tenancy of the defendant / appellant which is substantiated by documentary evidence being Exhibit ‘A’ series cannot be contradicted by oral evidence in as much as the settled law of land is that in case of contradiction between the documentary evidence and oral evidence, the documentary evidence will prevail over the oral evidence. (2) Whether the proof of grant of a single and solitary rent receipt is sufficient enough to prove the tenancy of a tenant and as such both the Courts below ought not to have held that the defendant’s claim for tenancy cannot be believed simply because no step under Section 25 of the W. B. Premises Tenancy Act was taken by the appellant following refusal to grant rent receipt in spite of payment for the subsequent period. 5. Mr. Dinendra Nath Chatterjee, learned counsel for the appellant / defendant, submits that in order to establish the specific defence case of tenancy in the suit room, the defendant produced two rent receipts, one being advance paid on 28th May, 1983 (Ext.A) and the other dated 5th July, 1983 showing payment of rent for June, 1983 [Ext.A(1)] which were admittedly issued under the signature of the plaintiff landlady. He further submits that as plaintiff landlady refused to accept rent later on, the appellant defendant sent the rents for the month of July and August, 1983 to the plaintiff through money order (Ext.B). He further submits that the appellant defendant also sent a letter to the O. C. of the local police station alleging that as plaintiff landlady refused to accept rents on and from July, 1983 he sent rents for July, 1983 and August, 1983 by a money order against receipt No.603 dated 25.04.1984 from Tangra post office (Ext.D). According to him learned Courts below failed to take note of the real impact of those documents namely Ext.A, A-1 and Ext. According to him learned Courts below failed to take note of the real impact of those documents namely Ext.A, A-1 and Ext. D and gave preference to the oral evidence of the plaintiff denying creation of tenancy of the appellant defendant in the suit room. He further submits that the appellant defendant also deposited rent in the Court but learned Courts below failed to take note of the implications of said deposits also. According to Mr. Chatterjee, learned counsel for the appellant defendant, when plaintiff landlady admitted her signatures on the rent receipts being Ext.A and A-1 then learned Courts below committed gross irregularity by overlooking those rent receipts and treating the appellant defendant as a trespasser. According to him, the judgments of the learned Courts below were perverse as they did not rely on the rent receipts filed by the defendant in proof of his tenancy in the suit room, particularly when those were admittedly issued under the signature of the plaintiff landlady. Accordingly, he prays for setting aside the impugned judgment of eviction. 6. Mr. Jiban Ratan Chatterjee, learned senior counsel for the respondent landlady, submits that no substantial question of law is really involved in this second appeal and hence the same should be dismissed summarily on that ground alone. He further submits that as plaintiff landlady filed an ejectment suit against the father-in-law of this appellant / defendant No.1 being Title Suit No.390 of 1985, the defendant No.1 had a grudge against the plaintiff resulting forcible occupation of the suit room by him on 28.05.1983 in collusion with his father-in-law (defendant No.2). He further submits that the plaintiff landlady was also compelled to put her signature on some blank rent receipts which were converted into Ext.A and A-1. He further submits that it will be apparent on the face of those rent receipts that those were written by some other persons with other ink and that those were not at all trustworthy. In this connection he refers to the evidence on record to show that on the ground of said forcible entry into the suit room on 28.05.1983 and taking forcible signature of the plaintiff landlady on two blank rent receipts, the plaintiff landlady was compelled to lodge a G. D. being No.2690 dated 29.05.1983 in the local police station and that the receipt of said G. D. was marked as Ext.4 in the case. According to him, as those alleged rent receipts being Ext.A and A-1 were tainted as signature of the plaintiff landlady was obtained thereupon by force while those were blank and those were later on filled up by some other persons, learned Courts below rightly discarded the same and put no reliance on the same. 7. He next submits that if plaintiff landlady voluntarily inducted the appellant defendant No.1 in the suit room in May, 1983 then why she will refuse to accept rents from July, 1983 onwards, which is against the normal behaviour of a normal person. According to him, though the appellant defendant No.1 claimed in his written statement filed in 1989 that he was a tenant in the suit room for last 13 years but during his evidence he admitted that he was a tenant in other place before 28th May, 1983, the date of his entry into the suit room. Next Mr. Chatterjee, learned senior counsel for the respondent plaintiff, submits that if plaintiff landlady refused to accept rent on and from July, 1983 then what prevented the tenant to send the same to the landlady at the earliest moment by money order and then to deposit the same month by month in the office of the Rent Controller. According to him, had there been a real tenancy followed by refusal of acceptance of rent by issuing rent receipt on and from July, 1983 by the plaintiff landlady then the appellant defendant No.1 being alleged tenant should have approached the rent Controller under Section 25(2) of the West Bengal Premises Tenancy Act, 1956. According to him, no such step was taken by the appellant defendant No.1 at any point of time and on the other hand he alleged to send a money order for the rents of July and August, 1983 on 25th April, 1984 and then made a complaint to the local police station on that score just to create some documents in support of his alleged tenancy in the suit room. In support of his contention he has referred a case law reported in 1992 (1) CLJ page 174 (Mrs. Juthika Basu and ors. versus Lt. Col. In support of his contention he has referred a case law reported in 1992 (1) CLJ page 174 (Mrs. Juthika Basu and ors. versus Lt. Col. A. N. Sharma) to impress upon this Court that in order to claim right of tenancy one has to produce valid rent receipts and in case rent receipt was not granted he has to satisfy the Court that he had taken recourse to provisions of Section 25(2) of the Act of 1956 which provide remedy for such refusal to grant rent receipts. 8. He has also referred a case law reported in (2010) 11 Supreme Court Cases page 483 (Bharatha Matha and another vs. R. Vijaya Renganathan and others) to impress upon this Court that in case of concurrent findings of fact by learned Courts below the High Court in a second appeal should not interfere with the same unless it can be shown to be perverse. 9. Admittedly, whether the appellant is a tenant or not in respect of the suit room is a question of fact. On the basis of evidence on record, both oral and documentary, both the Courts came to the concurrent findings of fact that appellant defendant No.1 was a trespasser and not a tenant in respect of the suit room. Said concurrent findings of fact even if erroneous cannot be interfered by this Court at the time of hearing of this second appeal unless it can be shown that said findings were based on no evidence or are based on without taking into consideration admissible evidence or based by taking into consideration inadmissible evidence or based by misreading evidence on record or based by not applying correct legal principles regarding appreciation of evidence. 10. It was the specific case of the plaintiff landlady that on 28.05.1983 the appellant defendant No.1 forcibly occupied the suit room by ousting plaintiff’s mother therefrom and also obtained forcible signature of the plaintiff on some blank rent receipts and that on that ground the plaintiff was compelled to lodge G. D. in the local police station on the very next date i.e., 29.05.1983. The plaintiff produced the receipt of G. D. dated 29.05.1983 which was marked as Ext.4 in the case. The plaintiff produced the receipt of G. D. dated 29.05.1983 which was marked as Ext.4 in the case. It came out that though the alleged rent receipts being Ext.A and A-1 bear the signature of the plaintiff but those were filled by the hand writing of another person in another ink. In spite of the specific allegation of the plaintiff that he was forced to sign on some blank rent receipts the defendant could not explain as to why those two rent receipts (Ext.A and A-1) on which he heavily banked regarding creation of his alleged tenancy were found to be written by the hand writing of other person and that too with different ink. Though appellant defendant No.1 claimed in his written statement filed in 1989 that he was a tenant in the suit room for last 13 years to deny the specific allegation of the plaintiff as made out in the plaint about forcible occupation of the suit room by said defendant No.1 on 28.05.1983, but during evidence he admitted that before 28th May, 1983 he was residing in another place and came into possession of the suit room only on and from 28.05.1983. This evidence of the appellant defendant No.1 as D.W.1 rather supports the plaintiff’s story of taking forcible possession of the suit room on 28.05.1983. 11. In this connection it is pertinent to note that though appellant defendant No.1 claiming to be tenant of the suit room tried to make out a case that on account of refusal on the part of the plaintiff landlady to accept rent for the months of July and August, 1983 he sent the same to the landlady by money order but there is no explanation as to why he sent the same on 25.04.1984 and not soon after said alleged refusal. There is no explanation as to why he did not approach the office of the rent controller under Section 25(2) of the West Bengal Premises Tenancy Act, 1956 for said alleged refusal on the part of the landlady to accept rent on granting rent receipt. It also came out from the evidence on record that the plaintiff had to lodge several G. D.s. and complaints against the appellant defendant No.1 in the local police station. It also came out from the evidence on record that the plaintiff had to lodge several G. D.s. and complaints against the appellant defendant No.1 in the local police station. The plaintiff landlady was also able to make out a case that the appellant defendant No.1 was a dreaded person in the locality as it came out from the admission of the appellant defendant No.1 (D.W.1) that more than 50 criminal cases were pending against him. It came out from the materials on record that learned Courts below considered all those evidences, both oral and documentary, and came to the concurrent findings of fact that the alleged rent receipts being Ext.A and A-1 were not at all reliable and that appellant defendant No.1 was not a tenant in respect of the suit room and was rather a trespasser living therein with effect from 28th May, 1983. These concurrent findings of facts were based on evidence. Said concurrent findings of fact cannot be said to be perverse on the grounds as stated above, justifying interference by this Court of Second Appeal. 12. As a result, the appeal is hereby dismissed on contest. 13. However, I pass no order as to costs. 14. Let the Lower Court Record be forwarded along with a copy of this judgment at the earliest. 15. Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.