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2014 DIGILAW 149 (TRI)

Kula Chandra Paul v. Sumita Dey, Smt. Soma Rani Dey, Shri Subir Kumar Dey and Smt. Anita Rani Dey

2014-04-22

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- This second appeal is directed against the Judgment and Decree dated 10.12.2007, passed by learned Additional District Judge, Dharmanagar, North Tripura in Title Appeal No. 10 of 2007. Learned Additional District Judge by the impugned Judgment dated 10.12.2007 upheld the Judgment & Decree dated 13.07.2007 passed by learned Civil Judge (Jr. Division), Dharmanagar in Ejectment Suit No. T.S. 11 of 2006. 2. The second appeal has been admitted for hearing on the following substantial questions of law:- 1. Whether the comparative interpretation and analysis of Exbt. A and Exbt. 2 documents are necessary for determining the rights of the parties in the case? 2. Whether the interpretation of the trial Court regarding the provision of Section91 and 92 of the Indian Evidence Act is contrary to the interpretation given by the Apex Court of the Country? 3. Heard learned counsel, Mr. D.K. Biswas for the appellant and learned senior counsel, Mr. K.N. Bhattacharjee assisted by learned counsel, Mr. S. Acharjee for the respondents. 4. Respondents as plaintiffs (hereinafter mentioned as ’plaintiffs’) instituted Title Suit (Ejectment) No. 11 of 2006 seeking Ejectment of the defendant-appellant (hereinafter mentioned as the ’defendant’) from the tenanted premises described in the Schedule of the plaint. The plaintiffs inter alia contended that an agreement of tenancy was executed between the plaintiffs and the defendant on 20.03.2004 A.D. which corresponds to 1st of Bhadra, 1410 B.S. and thereby, the plaintiffs let out a room measuring 16 ft. 6 inch x 5 ft. 6 inch at a monthly rent of Rs. 350/- and the tenancy was determined for the period of 2 years. The lease deed was registered with the office of Sub-Register, Dharmanagar and proved as Exbt. 2 in course of trial. The period of 2 years of tenancy was over on 30th Shrabana, 1412 B.S. and thereafter, the plaintiffs demanded vacant possession of the tenanted premises for their own business purpose, but the defendant did not vacate the premises as per demand. The plaintiffs issued a notice dated 07.10.2005 asking the defendant to vacate the premises and to handover the same, but in spite of receiving the notice the defendant did not handover possession of the tenanted premises and hence, the plaintiffs instituted the suit for ejectment of the defendant and also prayed for damages of Rs. 100/- per day with effect from 1st of Bhadra 1412 B.S. 5. 100/- per day with effect from 1st of Bhadra 1412 B.S. 5. The defendant contested the suit by filing written statement inter alia stating that by a tenancy agreement dated 27.04.1971 between the defendant and the landlord Anil Kr. Dey, predecessor of the plaintiffs, the defendant entered into the tenanted premises as a monthly tenant and continued as a tenant of said Anil Kr. Dey and after his death his successors, the plaintiffs, and, paid usually rent to the landlord. In the year 2004, the plaintiff No. 1 Sumita Dey asked the defendant to execute a fresh tenancy agreement to which the defendant requested her to prepare the deed and accordingly, a deed was prepared at the instance of Smt. Sumita Dey, the plaintiff No. 1 and on 20.03.2004, Smt. Sumita Dey asked the defendant to attend the office of Sub-Register for registration of the tenancy deed and accordingly, he attended the office and the tenancy deed was executed and registered. Subsequently, he got a photo copy of the tenancy deed and he found that the boundary description of the leased out room in the Western side was not correct and he requested the plaintiffs to make correction, but the plaintiffs assured him that it will be corrected at the time of subsequent renewal of the tenancy. The period of tenancy was for 2 years and after elapse of the said period, the defendant asked the plaintiffs for further renewal, but the plaintiffs declined assigning reason that the plaintiffs require the tenanted premises for their own purpose and having said so, since the plaintiffs declined to further extend the agreement, the defendant continued his business till 07.10.2005 and thereafter, vacated the tenanted premises with effect from 08.10.2005. It is also contended by the defendant that his brother Abinash Paul also occupied a room as a tenant from the year 1972 and doing business in the said room. The defendant denied all the assertions made by the plaintiffs in their plaint. 6. The trial Court formulated 5 issues namely:- ISSUE NO. 1:- Is the suit maintainable in its present form? ISSUE NO. 2:- Whether the defendant is possessing the suit land as tenant? ISSUE NO. 3:- Whether the suit land is described properly? ISSUE NO. 4:- Are the plaintiffs entitled to the decree as prayed for? ISSUE NO. 5:- To what other relief/reliefs the parties are entitled to? 7. 1:- Is the suit maintainable in its present form? ISSUE NO. 2:- Whether the defendant is possessing the suit land as tenant? ISSUE NO. 3:- Whether the suit land is described properly? ISSUE NO. 4:- Are the plaintiffs entitled to the decree as prayed for? ISSUE NO. 5:- To what other relief/reliefs the parties are entitled to? 7. The plaintiff No. 1 examined herself as P.W. 1 and also examined two more witnesses in support of their case and proved five items of documents including the registered tenancy deed dated 20.03.2004, which has been marked as Exbt. 2. The defendant examined himself as D.W. 1 and also examined three more witnesses in support of his case and proved registered deed of agreement dated 27.04.1971 which has been marked as Exbt. A. The trial Court decided all the issues in favour of the plaintiffs and accordingly, decreed the suit directing the defendant to vacate the suit premises and also directed payment of damage @ Rs. 500/- per month with effect from 1st of Bhadra, 1412 B.S. 8. Dissatisfied with the Judgment & Decree passed by the trial Court, the defendant preferred Title Appeal No. 10 of 2007 in the Court of Additional District Judge, Dharmanagar and the learned Additional District Judge by impugned Judgment dated 10.12.2007 dismissed the appeal and upheld the Judgment & Decree passed by the trial Court. 9. The trial Court and the First Appellate Court arrived at a concurrent finding appreciating the pleadings and the evidence on record. I find no justification at all to reconsider the evidence and materials on record except on the point of substantial questions of law formulated while admitting the present appeal. 10. The plaintiffs are the owners of the let out premises, not in dispute. The defendant entered in the suit premises as a tenant in the year 1971 by means of Exbt. A, a tenancy agreement executed between the defendant and late Anil Kr. Dey, the predecessor of the present plaintiffs. Exbt. A clearly shows that it was a tenancy agreement for a period of two years with effect from 1st of Jaishtha, 1378 B.S. It appears, the defendant continued as a monthly tenant after the period of tenancy fixed by Exbt. A had expired. Exbt. Dey, the predecessor of the present plaintiffs. Exbt. A clearly shows that it was a tenancy agreement for a period of two years with effect from 1st of Jaishtha, 1378 B.S. It appears, the defendant continued as a monthly tenant after the period of tenancy fixed by Exbt. A had expired. Exbt. 2, which is proved by the plaintiffs was executed between the plaintiffs and the defendant on 20.03.2004 is a fresh tenancy deed for the period from 1st of Bhadra, 1410 B.S. to 30th of Shrabana, 1412 B.S. It is, therefore, evident that Exbt. A lost its enforceability after the period of tenancy was over on expiry of two years from the date of its execution i.e. 27.04.1971. The present tenancy should be determined only by Exbt. 2. So, I find no reason at all to have a comparative interpretation and analysis of Exbt. 2 and Exbt. A. The defendant raised a plea that the boundary description of the leased out premises given in Exbt. A and Exbt. 2 particularly, the Western boundary was not correct and that was pointed out by the defendant after the deed was executed, but the plaintiffs did not taken any step. In Exbt. A, the Western boundary of the let out premises was given as the occupation of Mana Dey. In the cross-examination of P.W. 1, it reveals that Mana Dey was an uncle of the plaintiff No. 1. In Exbt. 2, the plaintiffs given the Western boundary as email passage leading to the homestead of the plaintiffs. Exbt. A was executed in the year 1971. It might happen that the possession of Mana Dey in the Western boundary was converted to an ejmali passage between the plaintiffs and their relative Mana Dey. Because of that boundary description, the defendant, who was a tenant in a particular room cannot claim any advantage beyond the agreement of tenancy. While Exbt. 2 was executed and registered, both the plaintiffs and the defendant were bound by Exbt. 2 irrespective of any reference of the boundary description in the earlier tenancy agreement i.e. the description given in Exbt. A. Since the issue of tenancy between the plaintiffs and the defendant has to be determined in terms of Exbt. 2 only, I find nothing to have a comparative interpretation and analysis of Exbt. A and Exbt. 2. 2 irrespective of any reference of the boundary description in the earlier tenancy agreement i.e. the description given in Exbt. A. Since the issue of tenancy between the plaintiffs and the defendant has to be determined in terms of Exbt. 2 only, I find nothing to have a comparative interpretation and analysis of Exbt. A and Exbt. 2. The trial Court as well as the Appellate Court rightly considered the documents and in my considered opinion arrived at a correct concurrent finding on the issues. 11. Exbt. 2 is a registered instrument of tenancy executed between the plaintiffs and the defendant. The terms and condition of tenancy as well as the period of tenancy and the description of tenanted premises categorically described in the registered deed. The Appellate Court, as I find, correctly interpreted the law prescribed in Section 91 and 92 of the Evidence Act in respect of Exbt. 2. Section 91 forbids proving of the contents of a writing otherwise than by writing itself and lays down the "best evidence rule". However, it does not prohibit the parties to adduce evidence in a case the deed is capable of being construed differently to show how the parties to deed understood the same. In the given facts and circumstances of this case while the registered instrument stipulated the terms of tenancy and the description of the tenanted premises, the parties are barred in adducing oral evidence contrary to what is stated in the said instrument, unless the parties can clearly show that there was some ambiguity existing in the document itself. 12. Learned counsel, Mr. Biswas has argued that the defendant was in occupation of the tenanted premises till 07.10.2005 and when the plaintiffs refused to further extend the tenancy, the defendant himself vacated the tenanted premises on 08.10.2005. So, the plaintiffs actually had no cause of action against the defendant and unnecessarily instituted the suit seeking ejectment of the defendant. 13. Learned senior counsel, Mr. Bhattacharjee has argued that the defendant has taken a plea that his brother Abinash Pal has taken a room as a tenant in the year 1972 with a specific boundary description given in Para 23 of the written statement and that plea is a false plea taken by the defendant intentionally and purposely with a view to camouflage the issue. Bhattacharjee has argued that the defendant has taken a plea that his brother Abinash Pal has taken a room as a tenant in the year 1972 with a specific boundary description given in Para 23 of the written statement and that plea is a false plea taken by the defendant intentionally and purposely with a view to camouflage the issue. It is submitted that the defendant and his brother Abinash were jointly dealing with the business in the tenanted premises leased out to the defendant and rent receipts were signed by Abinash on behalf of the defendant. The defendant with a view to somehow remain in occupation of the tenanted premises taken a false plea and neither examined Abinash as a witness nor produced on record any evidence of such tenancy in favour of Abinash. 14. The trial Court, as it appears, dealt with the issue categorically. It is held by the trial Court, which is affirmed by the Appellate Court that the defendant was a tenant under the plaintiffs as per Exbt. 2 and the defendant with his brother were doing their business in the tenanted premises. Exbt. 3 series shows that Abinash signed the rent receipts on behalf of his brother, the defendant. The trial Court taken into consideration the material evidence and arrived at an unambiguous finding that the defendant has taken a false plea that he has vacated the tenanted premises with effect from 08.10.2005. But practically he along with his brother had been in occupation of the tenanted premises as described in Exbt. 2. Learned counsel, Mr. Biswas has failed to show any cogent material in support of the contention that the defendant vacated the tenanted premises on 08.10.2005 and that his brother Abinash had/has been in occupation of another premises than that of the premises let out to the defendant by means of Exbt. 2. The plaintiffs instituted the suit seeking ejectment of the defendant from the alleged tenanted premises described in the schedule of the plaint. If the defendant already vacated the premises on 08.10.2005 and is not in occupation of the said premises, the defendant would not contest the suit and would not file the first appeal and the second appeal challenging the judgments passed by the Courts. If the defendant already vacated the premises on 08.10.2005 and is not in occupation of the said premises, the defendant would not contest the suit and would not file the first appeal and the second appeal challenging the judgments passed by the Courts. It is evident that the defendant has taken a vexatious plea deliberately with a view to misdirect the issue and has taken a false plea that he has vacated the tenanted premises on 08.10.2005. For such false and vexatious plea, I think special compensatory cost should be imposed on the defendant. 15. The appeal accordingly, stands dismissed with a special compensatory cost of Rs. 10,000/- (Rupees Ten thousand) to be paid by the defendant within 90 days. The defendant is further directed to vacate the tenanted premises described in the schedule of the plaint and to hand over the vacant possession to the plaintiffs within 45 (forty five) days from today. 16. Send back the L.C. records along with a copy of this Judgment.