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2015 DIGILAW 234 (CAL)

Prasanta Kumar Chakraborty v. Kalyani Kali

2015-03-11

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. 1. This appeal arises out of the judgment and order dated 19th January, 1987 passed by the Ld. 2nd Assistant District Court, Nadia in Title Appeal No. 243 of 1985. The Ld. Appellate Court was pleased to set aside the judgment and decree dated 31st July, 1985 passed by the Ld. Civil Court (Junior Division) - Ld. Munsif in Title Suit No. 208 of 1981. 2. The present appellants are the plaintiffs-landlords and respondents are the defendants-tenants. 3. The Ld. Trial Court, inter alia, held as follows:- (a) That in respect of the suit premises being 13 Ballavi Acharjee Para Lane, Plot No. 3144, Municipality-Santipur, Mauja-Santipur, P.S.- Santipur, District-Nadia the plaintiffs are the owners thereof. The defendants are the tenants at a rental of Rs. 32/- per month. The plaintiff no.2 ordinarily resides for business purposes in the State of Assam and due to disturbances in Assam, he requires the suit premises for his own use and occupation. The defendants are tenants in respect of the ground floor but the defendant no.1 inducted a sub-tenant namely, one Panchanan Bakshi without the consent of the plaintiffs. After a 'salishi' between the parties the said sub-tenant was evicted and the plaintiffs took possession of the first floor. Subsequently however, the defendants occupied both the first and ground floors. On the request of the plaintiffs the defendants vacated one room of the first floor which is now being possessed by the plaintiff no.1. The plaintiff no.2 has 7 members in his family, including maid servant and therefore requires the suit premises for his own use. The notice of eviction also stood proved. (b) The case made out by the defendants in their written statement is that the suit is not maintainable. The defendants are the tenants in the entire holding and in possession of one room on the first floor as well as the entire ground floor. The defendants deny that the said Panchanan Bakshi was inducted as a sub-tenant in the suit premises. The defendants contend that the plaintiffs do not have any reasonable requirement. (c) The Ld. Trial Court found that the defendants admitted in their written statement that they inducted a sub-tenant by subletting part of the tenancy. Such admission finds place in the written statement. PWs 1, 2 & 3 have also corroborated the fact of subtenancy and such evidence could not be dis-proved. (c) The Ld. Trial Court found that the defendants admitted in their written statement that they inducted a sub-tenant by subletting part of the tenancy. Such admission finds place in the written statement. PWs 1, 2 & 3 have also corroborated the fact of subtenancy and such evidence could not be dis-proved. The Ld. Trial Court also found that the evidence adduced on behalf of the defendants in respect of the sub-tenancy is contrary to their admission in the written statement. The Ld. Trial Court was therefore pleased to hold in favour of the plaintiffs with regard to the point of induction of a sub-tenant in the suit premises without consent of the plaintiffs. The Ld. Trial Court therefore held that the defendants were liable to be evicted. (d) On the point of reasonable requirement the Ld. Trial Court found that the plaintiff no.2 is now desirous of settling in the suit premises since it is no longer possible for the plaintiff no.2 to continue to stay in Assam. The plaintiff no.1 also resides in the suit premises in one room although he has 7-8 members in his family, including a maid servant. Such facts have been corroborated from the evidence of the PWs. The Ld. Trial Court did not believe the evidence of DW1 with regard to the residence of PW2 that prior to moving to Assam he would reside at Alipurduar. Ld. Trial Court was therefore pleased to decree the suit in favour of the plaintiffs. 4. The judgment and decree of the Ld. Trial Court was carried in appeal in Title Appeal No. 243 of 1985 by the defendants whereby, the Ld. Appellate Court, inter alia, held as follows:- (i) That the main points for determination in the appeal were whether the defendants were tenants in respect of the entire suit holding; whether the defendants are liable to be evicted from the suit premises for having sublet the suit premises without the previous written consent of the landlords; and whether the plaintiffs have a reasonable requirement of the suit premises for their own occupation. (ii) On the point whether the defendants were tenants of the entire suit holding the Ld. Appellate Court noticed the evidence of PWs 1 & 3 who had deposed that the defendants enjoyed the tenancy in respect of only the ground floor and were trespassers in respect of the first floor. (ii) On the point whether the defendants were tenants of the entire suit holding the Ld. Appellate Court noticed the evidence of PWs 1 & 3 who had deposed that the defendants enjoyed the tenancy in respect of only the ground floor and were trespassers in respect of the first floor. Further considering the ejectment notice (Exbt.2) and the averments at paragraph 2 of the plaint, the Ld. Appellate Court found that the defendant was a tenant in respect of the suit premises as specified in the schedule to the notice as well as to the plaint. On scrutiny of the said schedules the Ld. Appellate Court found that the defendants have been described by the plaintiffs to be tenants only in respect of a part of the first floor of the suit premises. However, in paragraph 3 of the plaint the plaintiffs have stated that the defendants were tenants in respect of the ground floor only. The Ld. Appellate Court also found that the counter foils of the rent receipts do not show that the defendants were tenants in respect of only the ground floor. Further the evidence of DW1, one Swapan Kali, son of the deceased tenant Pannalal Kali, was that the defendants were tenants in respect of the entire holding. (iii) With regard to the point whether the defendants were liable to evicted on the ground of subletting, the Ld. Appellate Court noticed that at paragraph 4 (kha) of their written statement the defendants have admitted to the fact of such subletting. The defendants have however stated that such subletting was done with the previous oral consent of the landlord. In the view of the Ld. Appellate Court the ground of subletting was no longer available to the plaintiffs because such ground stood waived because the plaintiffs have taken no legal action against the defendants and continued to accept rents thereafter. The Ld. Appellate Court observed that the landlords have not taken any steps against the defendants on the ground of subletting. Rather they continued to accept rents from the defendants thereafter for a long period. The Ld. Appellate Court also noticed that no ground of eviction for subletting was taken in the ejectment notice (Exbt.2). Taking note of the decision reported in 78 CWN 849 (Biswanath Gupta v. Narendra K. Tandon & Ors.) as also the letter of the plaintiff no.2 to the defendant marked Exbt. The Ld. Appellate Court also noticed that no ground of eviction for subletting was taken in the ejectment notice (Exbt.2). Taking note of the decision reported in 78 CWN 849 (Biswanath Gupta v. Narendra K. Tandon & Ors.) as also the letter of the plaintiff no.2 to the defendant marked Exbt. 'A', the Ld. Appellate Court found substance in the argument of the defendants that subletting has been waived by the plaintiffs. (iv) On the ground of reasonable requirement the Ld. Appellate Court found that such grounds are available only to the owner-landlord but not to the other landlords of the suit premises. The Ld. Appellate Court noticed that in his examination-in-chief the plaintiff no.2-PW1 has deposed that the suit premises belong to him and his brother the plaintiff no.1. It is also shown that the suit premises pertain to holding number 13 of Santipur Municipality with the previous holding number being 11. In support of their ownership the plaintiffs relied upon the registered sale deed dated 25th October, 1956 (Exbt.B) and from such sale deed it transpires that the property relates to holding number 12 of Santipur Municipality. Therefore, the Ld. Appellate Court found that there was discrepancy in the holding number of the suit premises as disclosed in the plaint compared to the registered sale deed being Exbt.B. In the light of such discrepancy the Ld. Appellate Court found it difficult to accept the claim of the plaintiffs as owners of the suit premises. The Ld. Appellate Court found substance in the argument of Ld. Counsel for the defendants that in order to obtain a decree of eviction under Section 13 (1) (ff) the plaintiffs-landlords are required to establish their ownership in respect of the suit premises. The discrepancy in the number of the suit holding, in the view of the Ld. Appellate Court, therefore requires to be removed on remand. (v) With regard to the point as to whether the Ld. Trial Court framed proper issues prior to decreeing the suit, the Ld. Appellate Court found that the Ld. Trial Court had failed to pinpoint the real and substantial issues between the parties. In such view of the matter the judgment and decree were set aside and the matter was remanded to the Trial Court for retrial after framing proper issues, thus setting aside the decree and allowing the appeal. 5. Ld. Appellate Court found that the Ld. Trial Court had failed to pinpoint the real and substantial issues between the parties. In such view of the matter the judgment and decree were set aside and the matter was remanded to the Trial Court for retrial after framing proper issues, thus setting aside the decree and allowing the appeal. 5. Ld. Counsel for the plaintiffs-appellants, Shri Biswajit Basu argued the following:- (1) That the Ld. Appellate Court committed a substantial error of law in remanding the suit for framing further issues pertaining to other grounds of eviction in as much as the defendants could be evicted in law on proof of any one of the grounds provided under Section 13 of the 1956 Act. According to Ld. Counsel, the grounds of subletting and reasonable requirement are per se sufficient for final adjudication. (2) Shri Basu further points out that there is no dispute with regard to the legal position that to qualify for a decree of eviction on the ground of reasonable requirement, the plaintiffs must prove their ownership over the suit premises. Ld. Counsel asserts that the purchase deed dated 25th October, 1956 (Exbt.B) shows unequivocally the description of the suit premises and, from the schedule appended to Exbt.B it will transpire that the suit premises is situated at dag no. 3144 of Mauja Santipur. Furthermore, the schedule of the said sale deed tallies with the description of the suit premises as given in the schedule of the plaint. According to Shri Basu, although the holding number of the suit premises in the Municipality records may vary, there is no variance in the plaint and the sale deed. Moreover, the defendants never challenged the ownership of the plaintiffs over the suit property. Neither in the written statement nor in the memorandum of appeal did the defendants challenge the ownership of the plaintiffs over the suit premises. Ld. Counsel therefore joins issue with the Ld. Appellate Court that in the absence of a challenge to the ownership, it was not open to the Ld. Appellate Court to visit the issue suo motu and, to remand the suit on the said issue. (3) Elaborating the above argument further Shri Basu points out that the defendants filed an application under Section 7(2) of the 1956 Act raising a frivolous dispute questioning the ownership of the suit premises by the appellants. Appellate Court to visit the issue suo motu and, to remand the suit on the said issue. (3) Elaborating the above argument further Shri Basu points out that the defendants filed an application under Section 7(2) of the 1956 Act raising a frivolous dispute questioning the ownership of the suit premises by the appellants. The defendants suggested that there was a lack of jural relationship of landlord and tenant between the parties. While adjudicating such application under Section 7(2) of the 1956 Act, the Ld. Trial Court framed the issue:- "Are both the plaintiffs landlords of the defendants?" The said application was decided vide order no. 16 dated 14th May, 1982 by the Ld. Trial Court holding that a relationship of landlord and tenant is found to exist between the parties. The Ld. Court categorically found that the defendants admitted to the ownership of the plaintiff no.2 over the suit premises. Such finding of the Ld. Trial Court was challenged before this Hon'ble Court in CO 2943 of 1982 and by its order dated 4th August, 1983 an Hon'ble Single Bench was pleased to affirm the order of the Ld. Trial Court dated 14th May, 1982. The solemn order of the Hon'ble High Court dated 4th August, 1983 was not challenged by the defendants and attained finality. On the above score Shri Basu argued that the issue of relationship between landlord and tenant and the connected issue of ownership of the suit premises by the plaintiffs is no more res integra. Therefore, Ld. Counsel points out that the Ld. Appellate Court was not justified in passing the order of remand on the above issue. Furthermore, there is no discrepancy in the description of the suit premises as from the sale deed (Exbt. B) and the schedule of the plaint it can be found that both are identical. (4) Ld. Counsel further argued that the Ld. Appellate Court grossly erred in setting aside the judgment and decree of the Ld. Trial Court granted in favour of the plaintiffs on the ground of subletting. Relying on a decision of the Hon'ble Apex Court in AIR 1994 SC 2129 at paragraph 8 in the matter of K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu, Ld. Counsel argued that refusal to grant relief by the Ld. Trial Court granted in favour of the plaintiffs on the ground of subletting. Relying on a decision of the Hon'ble Apex Court in AIR 1994 SC 2129 at paragraph 8 in the matter of K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu, Ld. Counsel argued that refusal to grant relief by the Ld. Appellate Court on the ground that the notice to quit on the ground of subletting did not mention such ground, Shri Basu submits that the ground of subletting cannot be held to be not available only because it did not find place in the notice to quit whereas at the trial such ground was taken up for consideration and stood proved. (5) Sri Basu also argued that the refusal of the Ld. Appellate Court to recognise non-waiver of the ground of subletting citing the reason that the plaintiffs continued to maintain good relationship with the defendants was flawed. Ld. Counsel emphasised that the requirement of obtaining written consent prior to subletting of the premises is a sine qua non by operation of Section 13 (1)(a) of 1956 Act and non-fulfilment of such requirement would entitle the plaintiffs to a decree of eviction. Shri Basu further argues that there can be no waiver in the face of a clear statutory prescription. In this regard he relied upon the decision in AIR 1981 Cal 61 in the matter of Pulin Behari Pal v. Mahadeb Dutta. (6) Shri Basu further argued that oral consent of the plaintiff no.2 to sublet is not recognised by law. The consent must be in writing as provided under Section 13 (1)(a) of the 1956 Act. Even if it is assumed but not admitted that the defendants are tenants in respect of the entire suit premises, the ground of subletting is still available to the plaintiffs. Ld. Counsel therefore submitted that the decree ought to have been passed on the ground of subletting alone. 6. Per contra, Shri Ranjan Kali, Ld. Counsel for the respondents-defendants has argued as follows:- (I) That the notice of ejectment has been issued only on the ground of reasonable requirement. Ld. Counsel submits that the ground of reasonable requirement is the sole ground taken by the plaintiffs in the notice to quit. Therefore, if the plaintiffs failed to take a proper ground in the notice of ejectment, they are precluded from taking such ground or an additional ground at trial. Ld. Counsel submits that the ground of reasonable requirement is the sole ground taken by the plaintiffs in the notice to quit. Therefore, if the plaintiffs failed to take a proper ground in the notice of ejectment, they are precluded from taking such ground or an additional ground at trial. (II) Shri Kali further submits that the issue of reasonable requirement is a pure question of fact. Such pure question of fact cannot be examined by the High Court sitting in appeal. Ld. Counsel argues that in view of the apparent factual discrepancy in the premises no. which is found to be different from the sale deed, the Ld. Appellate Court was correct in remanding the suit. (III) Shri Kali submits that it would be wrong to presume that the issue of reasonable requirement and ownership stood decided in the application under Section 17 (2A) of the 1956 Act. Under Section 17 (2A) of the 1956 Act since the issue of reasonable requirement cannot be gone into, any reliance by the plaintiffs to the order of the Ld. Trial Court being no. 16 dated 14th May, 1982 in support of their claim to ownership is misconceived. Ld. Counsel makes the further point that once discrepancy is noticed in the number of the suit premises, witnesses ought to have been recalled to prove the correct holding number. Since such witnesses have not been recalled, the identity of the suit premises remains unresolved and therefore the Ld. Appellate Court was correct in remanding the matter to the Ld. Trial Court for consideration of all such aspects afresh. Ld. Counsel submits that the ground of subletting is consequential to the proof of ownership of the suit premises by the plaintiffs. If the plaintiffs fail to prove their ownership over the suit premises the ground of subletting is not available to them and the suit itself must fail. In support of his submissions Shri Kali relies on the judgment of the Hon'ble Apex Court in AIR 1974 SC 1596 in the matter of Mattulal v. Radhe Lal. 7. Having heard the parties and considering the materials on record at the very outset this Court notices that the Ld. Appellate Court had framed the issue of subletting of the suit premises without the previous written consent of the landlord as one of the main points for determination in the appeal. The Ld. 7. Having heard the parties and considering the materials on record at the very outset this Court notices that the Ld. Appellate Court had framed the issue of subletting of the suit premises without the previous written consent of the landlord as one of the main points for determination in the appeal. The Ld. Appellate Court was of the view that since the plaintiffs-landlords refrained from taking any action against the tenant for subletting the suit premises and continued to accept rent from him for a long period, the ground of subletting stood waived. The Ld. Appellate Court further decided in favour of waiver by the landlords on the assumption that all along the parties maintained "cordial relationship" with each other. 8. However, from the facts on record it is not in dispute that the suit premises were sublet and the Ld. Court had recorded that at para 4 (kha) of the written statement the defendants had admitted to the subletting. 9. From a catena of decided authority it is by now trite law that the ground of eviction under Section 13(1)(a) of the 1956 Act for subletting will only not be available to the landlord provided written consent is obtained by the tenant. It is also by now legally settled that the ground of subletting is in public interest and therefore requirement of consent from the landlord cannot be directory. 10. There is in law no waiver of the ground of subletting by arguing the implied consent of the landlord. In cases of subletting courts have demanded proof of conscious relinquishment by the landlord of his rights. On the happening of any other event pertaining to subletting, except written consent, both the statutory provision under Section 13(1)(a) of the 1956 Act and decided authority do not include waiver as a defence. 11. Useful reference may be had with regard to the abovenoted issue to the decisions in (1993) 1 SCC 629 in the matter of Pulin Behari Lal v. Mahadeb Dutta and Ors; (1990) 1 SCC 169 in the matter of Duli Chand (Dead) by LRS. v. Jagmender Dass; AIR 1988 Supreme Court 145 in the matter of M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and others & AIR 1981 Calcutta 61 in the matter of Pulin Behari Pal v. Mahadeb Dutta. 12. The next point discussed by the Ld. v. Jagmender Dass; AIR 1988 Supreme Court 145 in the matter of M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and others & AIR 1981 Calcutta 61 in the matter of Pulin Behari Pal v. Mahadeb Dutta. 12. The next point discussed by the Ld. Appellate Court and which is a cause for remanding the suit for retrial is the purported discrepancy over the ownership of the suit premises on the ground that the holding number of the premises as appearing in the municipality records do not tally with the schedule of the plaint and the sale deed of the plaintiffs dated 26th October, 1956 marked Exbt. B. From the plaint it appears that the holding No. is 13 while the municipality records show the holding No. to be 11. 13. It has been argued by Ld. Counsel for the appellants that there is no dispute with regard to the identity of the plot which remains as No. 3144 under Santipur Municipality. The plot or dag number given in the sale deed marked Exbt. 'B' also appears in the schedule appended to the plaint. The description of the suit premises is identical to the description in the sale deed (Exbt. B). However, the holding number underwent changes from time to time over a long period post the original sale deed in the year 1956. 14. It is further worthy of note that in their written statement the defendants-tenants never challenged the ownership of the appellants over the suit property. Neither such challenge was thrown in the appeal. 15. Furthermore, the relationship of landlord and tenant was disputed in an application filed by the defendants under Sections 7(2) of the 1956 Act. Deciding the issue of whether the plaintiffs were the landlords of the defendants, the Ld. Trial Court disposed of the application under Section 7(2) of the 1956 Act vide its order No. 16 dated 14th May, 1982 holding, inter alia, that there exists relationship of landlord and tenant inter se the parties. The Ld. Trial Court found that the defendants admitted to the ownership of the plaintiff No. 2 over the suit premises. 16. Such order was challenged before this Hon'ble Court in a revisional application being CO 2943 of 1982 and the Hon'ble Single Bench was pleased to affirm the order of the Ld. Trial Court vide its order dated 4th August, 1983. Trial Court found that the defendants admitted to the ownership of the plaintiff No. 2 over the suit premises. 16. Such order was challenged before this Hon'ble Court in a revisional application being CO 2943 of 1982 and the Hon'ble Single Bench was pleased to affirm the order of the Ld. Trial Court vide its order dated 4th August, 1983. The order of the Hon'ble Single Bench was not carried in appeal and attained finality. 17. In the above view of the matter to the mind of this Court the Ld. Appellate Court failed to take cognizance of the appropriate facts and erroneously held that the suit be remanded for a fresh trial. 18. The next point considered by the Ld. Appellate Court is one of non-mentioning of the ground of subletting in the notice to quit. 19. The above view of the Ld. Appellate Court is contrary to the decided authority on the point that when subletting has been admitted by the tenant in the written statement, relief on the said ground cannot be denied merely because it does not find mention in the notice to quit. Useful reference in this regard may be had to the judgment of the Hon'ble Apex Court reported in AIR 1994 Supreme Court 2129 in the matter of K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu. 20. In addition to the above discussion this Court also finds that the Ld. Trial Court had held as follows:- "Let us come to the point of reasonable requirement of the plaintiffs. The plaintiff's case is that they have no other premises excepting the suit premises. Plaintiff No. 2 would resides at Assam and due to disturbance at Assam, it is impossible to live there where he resided for business purpose. Plaintiff No. 1 resides in one room of the suit premises. He has 7/8 members of his family including maid servant. Let us come to evidence. P.W. 1 in his cross-examination at page 4 has stated that he resided at Assam for business. P.W. 3 has also started that plaintiff 2 has 4 member of his family. They have no other shelter excepting the suit premises. These evidence cannot be disbelieved. D.W. 1 in his cross-examination has stated that P.W. 2 resides at Assam and prior to that he would resided at Alipurdwar. P.W. 3 has also started that plaintiff 2 has 4 member of his family. They have no other shelter excepting the suit premises. These evidence cannot be disbelieved. D.W. 1 in his cross-examination has stated that P.W. 2 resides at Assam and prior to that he would resided at Alipurdwar. D.W. 2 is an interested and also a chance witness became of the fact that he came to the suit premises for broker. I do not believe this evidence. After hearing the submission and after careful and anxious consideration, I am inclined to hold that the plaintiffs required the suit premises for their own use and occupation." 21. On the other hand there is no contrary discussion by the Ld. Appellate Court on the claim of the plaintiffs to reasonable requirement. The consideration of reasonable requirement has been perfunctorily dealt with by the Ld. Appellate Court. 22. It is decided through several authorities that the landlord is competent to assess his bona fide and objective requirement of the suit premises provided such requirement is need based and not a mere desire. Reference in this regard may be made to the decisions reported in (2002) 8 SCC 765 in the matter of Savitri Sahay v. Sachidanand Prasad; (2003) 1 SCC 462 in the matter of Akhileshwar Kumar and Ors. v. Mustaqim and Ors. & (2003) 1 CHN 287 in the matter of Gopal Chandra Das v. Saraswati Basak. 23. To the mind of this Court the facts on the ground have not been assessed in their correct perspective in the context of the applicable law by the Ld. Appellate Court in contradistinction to the findings of the Ld. Trial Court. 24. For the above reasons the judgment and order impugned of the Ld. Appellate Court is set aside and the decree passed by the Ld. Trial Court is restored. The appellants shall be entitled to put the decree into execution forthwith. 25. FMA 105 of 1988 stands allowed. 26. There will be, however, no order as to costs. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.