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2014 DIGILAW 270 (CAL)

Samir Ranjan Halder v. Nirmalendu Halder

2014-03-24

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. This second appeal is at the instance of the defendant/appellant and is directed against the judgment and decree dated May 20, 2006 of affirmance passed by the learned Civil Judge (Senior Division), Diamond Harbour in Title Appeal No.9 of 2002 arising out of the judgment and decree dated November 29, 2011 passed by the learned Civil Judge (Junior Division), 2nd Court, Diamond Harbour in Title Suit No.31 of 1999. The plaintiff/respondent herein instituted the aforesaid suit for ejectment of the defendant/appellant herein from the premises in suit as described in the schedule to the plaint before the learned Trial Judge on the ground of default, violation of the provisions of (m), (o) & (p) of Section 108 of the Transfer of Property Act and reasonable requirement. The defendant/appellant herein is contesting the said suit by filing a written statement denying the allegations raised in the plaint. He has contended that there is no relationship of landlord and tenant between the parties. No legal, valid and sufficient notice was served upon him. Requirement of the suit premises by the plaintiff on the ground of reasonable requirement is not tenable at all. He has not done any act contrary to the provisions of (m), (o) & (p) of Section 108 of the Transfer of Property Act and as such, the plaintiff is not entitled to get any decree of eviction and other reliefs. Upon analysis of evidence adduced by the parties, the learned Trial Judge decreed the suit on contests with costs against the defendant. He has directed the defendant to deliver possession of the suit premises in favour of the plaintiff within two months from the date of delivery of judgment. He has also directed that the plaintiff is entitled to recover damages from the defendant on rental basis on and from December 1, 1995 till recovery of possession of the suit premises, the quantum of which shall be determined in a separate proceeding. Being aggrieved by such judgment and decree, the defendant preferred an appeal being Title Appeal No.9 of 2002, which was also dismissed on contests thereby affirming the judgment and decree passed by the learned Trial Judge. Being aggrieved by such judgment and decree, the defendant/tenant has preferred this second appeal. Being aggrieved by such judgment and decree, the defendant preferred an appeal being Title Appeal No.9 of 2002, which was also dismissed on contests thereby affirming the judgment and decree passed by the learned Trial Judge. Being aggrieved by such judgment and decree, the defendant/tenant has preferred this second appeal. At the time of admission of the appeal, the following two substantial questions of law have been framed:- “I) Whether the learned Court of appeal below committed substantial error of law in rejecting an application under Order XLI Rule 27 of the Code of Civil Procedure filed by the appellant by totally overlooking the fact that the document sought to be proved was essentially necessary for the Court for arriving at a just conclusion whether a construction was made with the consent of the previous landlord; II) Whether the learned Courts below committed substantial error of law in treating the case as one within the purview of Section (m), (o) & (p) of Section 108 of the Transfer of Property Act when by the agreement of tenancy between the parties a tenant was permitted to take electricity and for the above purpose construction of a wall on one side was necessary.” Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that during the pendency of the first appeal, an application under Order 41 Rule 27 of the C.P.C. was filed for marking a certain document as exhibit and that application was rejected at the time of passing the judgment. While disposing of the said application, the learned First Appellate Court has assigned a ground to the effect that during the Courts of trial, the defendant/appellant could not place any documents to show the permission of the landlord for making the construction. He has prayed for remand giving an opportunity to adduce evidence to show that the permission was sought for by proving the document marked ‘X’ for identification before the Courts below. What I find that a certain document already marked ‘X’ for identification was placed by the defendant/appellant. He has contended that alleged construction will not change the nature and character of the suit premises in any manner and a wall was constructed for installation of an electric meter as per direction of the concerned electricity department and so, the said document should be marked exhibit. He has contended that alleged construction will not change the nature and character of the suit premises in any manner and a wall was constructed for installation of an electric meter as per direction of the concerned electricity department and so, the said document should be marked exhibit. The said document was not at all unknown to the appellant, but, it was very much within his possession and at the time of adducing evidence, he could not prove that the document by calling an appropriate person from the appropriate authority. So, at the appellate stage, he has filed the application to prove that document. This is, in my view, is nothing but to drag the matter for an unending period since a suit for ejectment has been filed against the appellant. It has also been stated that the relationship of the landlord and tenant has not been properly determined and so, the application under Order 41 Rule 27 should be allowed. Such contention of the appellant, in my view, is nothing but to drag the suit for ejectment for an unending period and the appellant had enough opportunity to put the document in question as exhibit. In support of the defence stand, he did not avail such opportunity during the stage of trial. Accordingly, at the appellate stage, in my view, the learned First Court of Appeal has not committed any substantial error of law in rejecting the said application under Order 41 Rule 27. Moreover, as per evidence on record, a Commission was appointed to see whether permanent construction had been made or not and the Commissioner had submitted his report and he was cross-examined by the appellant. But, from his cross-examination as observed by the Courts below, the statement made in the examination-in-chief could not be demolished. Rather from the materials on record, it has been proved that though a darma bera room was tenanted to the defendant and then a pucca construction had been made as per materials on record. So, in my view, the First Appellate Court has not committed any wrong in coming to the conclusion whether any construction had been made with the consent of the previous landlord. The substantial question of law point no. I is, thus, answered. So, in my view, the First Appellate Court has not committed any wrong in coming to the conclusion whether any construction had been made with the consent of the previous landlord. The substantial question of law point no. I is, thus, answered. As stated above, the decree for ejectment was on the ground of violation of the provisions of (m), (o) & (p) of Section 108 of the Transfer of Property Act. Both the Courts below have come to the concurrent findings that the permanent construction had been made by the defendant/appellant in violation of the provisions of (m), (o) & (p) of Section 108 of the Transfer of Property Act. So, such concurrent findings based on evidence and being not perverse cannot be interfered into in dealing with the second appeal. The learned First Appellate Court has rightly held that the appellant examined two persons of the concerned Municipality, but, he did not make any attempt to examine any person who could at least say before the Court that the consent was given to the tenant to erect the pucca wall by the then landlord even oral. So, the prayer for order of remand for adducing evidence is nothing but a step to delay the disposal of the suit to frustrate the prayer for recovery of possession. As per materials on record, a room measuring 42’/17’ covered by darma and roof by tin was tenanted to the defendant. But, as per Commissioner’s report supported by other materials permanent pucca construction had been made. The varanda of the said room had also been converted into a pucca room and it is being used by the defendant/appellant as office room and such fact has been admitted by the defendant during his cross-examination. So, such admission has proved the violation of the provisions of (m), (o) & (p) of Section 108 of the Transfer of Property Act and, in my view, both the Courts below have rightly come to the same conclusion based on evidence and not on surmise and conjecture. Accordingly, the Courts below have not committed any substantial error of law in treating the case as one within the purview of Sections (m), (o) & (p) of Section 108 of the Transfer of Property Act. The agreement between the parties lays down that the defendant is at liberty to take electricity for business. Accordingly, the Courts below have not committed any substantial error of law in treating the case as one within the purview of Sections (m), (o) & (p) of Section 108 of the Transfer of Property Act. The agreement between the parties lays down that the defendant is at liberty to take electricity for business. But it does not mean that for that reason the defendant would make a permanent construction including the construction of a room permanently by covering the varanda without the consent of the landlord and as such, the contention of the defendant that the alleged construction was made only for the purpose of installing a meter only cannot be accepted. The substantial question of law of Point No. II is, thus, answered. While arguing the case, the learned Advocate for the respondent has referred to the decision Purushottam Das Bangur & ors. v. Dayanand Gupta reported in AIR 2013 SC 465 and thus, has submitted that it is immaterial whether the structure has resulted in creating additional usable space for the tenant who carries out such alteration or additions. The purpose of construction is also an important factor and from the materials on record in the instant appeal, it appears that the construction had not been done for installation of an electric meter but to convert a portion of the tenanted premises into a room with permanent structure. When a permanent structure had been made within the meaning of Section 108(p) of the Transfer of Property Act without the permission of the landlord, an appropriate decree of ejectment would be passed on that ground. So, in my view, this decision supports the case of the plaintiff/respondent herein. In that view of the matter, I am of the opinion that there is no perversity in the impugned judgment and decree. The concurrent findings of the Courts below based on evidence should not be interfered with. Accordingly, in my view, this second appeal is totally devoid of merits and is, therefore, dismissed on contests without costs. Considering the circumstances, there will be no order to as costs.