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2012 DIGILAW 814 (CAL)

Mamata Saha v. Santosh Sardar

2012-08-29

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. Challenge is to the Order dated June 25, 2008 passed by the learned Civil Judge (Junior Division), 4th Court, Alipore in Title Suit No.146 of 1998 thereby disposing of an application under Sections 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956 on contests by holding that there is no relationship of landlord and tenant between the parties to the suit. The plaintiff / petitioner herein instituted a suit being Title Suit No.146 of 1998 for eviction against the defendant / opposite party herein in respect of the premises in suit on the ground, inter alia, default and reasonable requirement. The plaintiff has contended that she had purchased the premises in suit from the original owners by a deed of sale dated February 10, 1993. The defendant is contesting the said suit by filing a written statement denying the material allegations raised in the plaint and he filed an application under Sections 17(2) and (2A) of the 1956 Act and that application was disposed of by the impugned order holding that there is no relationship of landlord and tenant between the parties to the suit. Being aggrieved, this application has been preferred by the plaintiff. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the premises in suit comprises one room made of mud wall, tiled shed along with commonuser of bath and privy at premises no.165/1A, Kalighat Road under P.S. Bhowanipore, Kolkata – 700026. The parties to the suit adduced evidence in support of their respective contentions over the application under Sections 17(2) and (2A) of the 1956 Act. The learned Trial Judge has analysed the evidence on record. Admittedly, the premises in suit originally belonged to Samarendra Nath Haldar and two others, i.e., zamindars having 1/3rd share each. Admittedly, Ranibala Dasi was a thika tenant in respect of the premises in suit and she had sold the thika tenancy in respect of the premises in suit in favour of Smt. Angur Bala Dasi by a Deed of Sale executed in the year 1968. Angur Bala inducted the defendant as a tenant in 1988. It is also an admitted fact that the defendant / opposite party herein paid rent to the plaintiff from 1993 to May 1997. Angur Bala inducted the defendant as a tenant in 1988. It is also an admitted fact that the defendant / opposite party herein paid rent to the plaintiff from 1993 to May 1997. It is also an admitted position that the defendant had deposited rent for the premises in suit in favour of the plaintiff from June 1997 to June 1998 with the Rent Controller on the plea that the plaintiff had refused to accept rent for the month of June 1997. The contention of the plaintiff is that after the purchase of the premises in suit from the zamindars by a Deed of Sale dated February 10, 1993, she became the owner of the premises in suit. She made due attornment in 1993 and thereafter, the defendant / opposite party herein paid rent to him from 1993 to May 1997 directly. The defendant has contended that the premises in suit is a thika property and as such, the defendant is a direct tenant under the State of West Bengal. The plaintiff has denied such contentions. What I find from the materials on record that after the purchase by the plaintiff, attornment had been done and the defendant paid rents to the plaintiff from 1993 to May 1997 and thereafter, according to him, when the plaintiff refused to accept the rent, the defendant had deposited rent from June 1997 to June1998 with the Rent Controller. The defendant has also contended that on June 18, 1998 Angur Bala issued a letter to the defendant claiming to be the thika tenant of the structure and she demanded arrears of rent and such letter has been marked Ext.4 in the 17(2) matter. As per defence version, Angur Bala collected rent from the defendant from 1985 to February 1988 marked Ext.1 series and as such, when Angur Bala demanded rent subsequently, he stopped making payment to the plaintiff. Therefore, from the admission of the defendant, I find that after February 1988, Angur Bala did not claim any rent from the defendant in respect of the premises in suit. On the other hand, as per materials on record, after attornment, the defendant started paying rent to the plaintiff from 1993 onwards. There is no proof that Angur Bala took any step against the defendant for eviction or otherwise for nonpayment of rent after February 1988. On the other hand, as per materials on record, after attornment, the defendant started paying rent to the plaintiff from 1993 onwards. There is no proof that Angur Bala took any step against the defendant for eviction or otherwise for nonpayment of rent after February 1988. The question whether the premises in suit is a thika tenancy property or not shall be decided at the time of trial. At present, we are concerned with the matter of Sections 17(2) and (2A) of the 1956 Act. Since, the defendant has admitted that he had paid rent to the plaintiff for the premises in suit after attornment up to May 1997 and thereafter, he had deposited rent with the Rent Controller in favour of the plaintiff from June 1997 to June 1998, I am of the view, this is a clear admission on the part of the defendant that he has admitted the plaintiff as his landlord in respect of the premises in suit. When such admission was made and the defendant paid rent to the plaintiff for a considerable period and also deposited rent with the Rent Controller on refusal by the plaintiff to accept rent, I am of the view that according to the provisions of Section 116 of the Indian Evidence Act, the tenant is estopped from denying the landlord-tenant relationship between the parties. The learned Trial Judge has accepted the contention of the defendant relying on the decision of Sambhunath Mitra & ors. v. Khaitan Consultant Ltd. & ors. reported in AIR 2005 Calcutta 281. I am of the view that this finding cannot be supported. The contention that the defendant had paid rent to the plaintiff or that he deposited the rent with the Rent Controller by mistake, I hold, cannot be accepted. Mr. Yasin Ali, learned Advocate appearing on behalf of the plaintiff / petitioner herein has referred to the decision of Sri Manik Lal Sett & anr. v. Smt. Hira Basu @ Surali Basu & ors. reported in 2008(2) CLJ (Cal) 675 and thus, he submits that when the defendant had denied the relationship of landlord and tenant, the Court should frame an issue to that effect and the said issue should be decided along with the petition under Sections 17(2) and (2A)(b) of the 1956 Act and so, the suit should be remanded. reported in 2008(2) CLJ (Cal) 675 and thus, he submits that when the defendant had denied the relationship of landlord and tenant, the Court should frame an issue to that effect and the said issue should be decided along with the petition under Sections 17(2) and (2A)(b) of the 1956 Act and so, the suit should be remanded. This is a Single Bench decision and so, this decision, I hold, is persuasive only. In the instant case, the defendant having admitted the relationship of landlord and tenant once and he had paid rent accordingly as observed above, I hold, there is no scope to resile from that position. Mr. Hiranmoy Bhattacharjee, learned Advocate appearing for the opposite party has contended that since the premises in suit is a thika property and the plaintiff having purchased the said property from the then zamindar only on February 10, 1993, after the enactment of the Calcutta Thika and Other Tenancies and Landlords (Acquisition and Regulation) Act, 1981, such deed of sale in favour of the plaintiff by the then zamindars is void and so, the plaintiff has no right, title and interest in the suit property. He has also relied on the decision of Sambhunath Mitra & ors. v. Khaitan Consultant Ltd. & ors. reported in AIR 2005 Calcutta 281. With due respect to Mr. Bhattacharjee, I am of the view that this decision is not applicable in the instant situation because the facts in the said case are altogether different from the present one. The ratio of the said decision is not applicable in the instant situation at all. In that suit, concurrent tenancies were created in respect of the selfsame property and the subsequent landlord derived title to the suit property from the earlier landlord. In that case, it was observed that when the subsequent landlord derived title from the erstwhile landlord and the tenant paid rent to the derived landlord by mistake, the doctrine of estoppel will not apply. In the instant case, it is not the situation that the present plaintiff has derived his right, title and interest from the earlier so-called landlord, namely, Angur Bala and that there is no situation of creation of concurrent tenancies by the same landlord creating interest over the suit property in favour of a third party. In the instant case, it is not the situation that the present plaintiff has derived his right, title and interest from the earlier so-called landlord, namely, Angur Bala and that there is no situation of creation of concurrent tenancies by the same landlord creating interest over the suit property in favour of a third party. In the said decision, the decision of Subhas Chandra v. Mohammad Sharif reported in AIR 1990 SC 636 was duly considered while dealing with the applicability of Section 116 of the Indian Evidence Act to a case whether the landlord claims to be a derivative title-holder from the inducting landlord. The ratio of the said decision is quoted below:- “It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff’s claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by S. 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law.” As observed by me earlier, such contention of the defendant may well be considered at the time of the trial of the suit. Since, it is not a case of derivative title from the inducting landlord, that is, Angur Bala, I am of the view that the ratio of the decision of Sambhu Nath Mitra (supra) will not be a matter of consideration now, for the disposal of the application under Sections 17(2) and (2A) of the 1956 Act. Therefore, the contention by the defendant is that he paid rent to the plaintiff by mistake or ignorance of law, I hold, will not be applicable. So far as the letter dated June 18, 1998, Ext.4 of Angur Bala is concerned, I find from the materials on record that Angur Bala is not a party to the suit. She has deposed in support of the defendant. But, I find that she did not take any step against the defendant for non-payment of rent to her earlier. There is no issue whether Angur Bala is the landlord in respect of the premises in suit while disposing of the application under Sections 17(2) and (2A) of the 1956 Act. Prima facie, there is no material to show that in between the period from February 1993 to the date prior to the institution of the suit, the defendant had paid rent / premium either to Angur Bala or the Government. So, for the disposal of the application under Sections 17(2) and (2A) of the 1956 Act, we are concerned only to the limited scope of the said Sections. Accordingly, I am of the view that the evidence of the son of the defendant and of Angur Bala with regard to the creation of a third party interest need not be considered for the time being. Accordingly, it is held that the defendant is bound by the principle of estoppel and under such circumstances, there is no other way but to conclude that there is a landlord and tenant relationship between the parties for the purpose of disposal of the application under Sections 17(2) and (2A) of the 1956 Act. Accordingly, the findings of the learned Trial Judge cannot be supported. The learned Trial Judge has committed illegality in passing the impugned order simply relying on the decision of Sambhu Nath Mitra (supra) without taking proper notice of the admission of the defendant. In that view of the matter, I am of the opinion that the application succeeds and is, therefore, allowed. The learned Trial Judge has committed illegality in passing the impugned order simply relying on the decision of Sambhu Nath Mitra (supra) without taking proper notice of the admission of the defendant. In that view of the matter, I am of the opinion that the application succeeds and is, therefore, allowed. The impugned order is hereby set aside. It is held that there is a relationship of landlord and tenant between the parties. The learned Trial Judge is directed to assess the arrears of rent and to give necessary directions to the defendant to pay or deposit the arrears of rent as assessed by him in accordance with law. Alternatively, it is stated that the learned Trial Judge shall proceed with the matter from the stage that there is a relationship of landlord and tenant between the parties and that he shall dispose of the application under Sections 17(2) and (2A) of the 1956 Act in accordance with law on the basis of the evidence on record within 30 days from the date of communication of this order to him. Considering the circumstances, there will be no order as to costs.