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2015 DIGILAW 312 (CAL)

Prabhat Kumar Didwania v. Juthika Nath

2015-04-02

NISHITA MHATRE, R.K.BAG

body2015
Judgment :- R.K. Bag, J. 1. This appeal is directed against the judgment and decree passed by Learned Judge, 11th Bench, City Civil Court, Calcutta on 26th June, 2007 in Title Suit No.458 of 1998, by which Learned Judge dismissed the suit. The appellant/plaintiff instituted the said suit against the defendants/respondents praying for eviction, recovery of possession of the suit premises, permanent injunction and mesne profit. 2. One Rajaranglal Didwania, predecessor-in-interest of the plaintiff inducted one Debdas Nath, predecessor-in-interest of the defendants as tenant in one room in the basement floor of Block-B in Premises No.76, Bowbazar Street, Calcutta at a monthly rental of Rs.250/- for running a printing press by executing one deed of lease on 6th July, 1954. The lease deed was made effective for a period of 16 years from 1st August, 1954 to 31st July, 1970. Rajaranglal Didwania died on 9th August, 1965 leaving behind his only son Purushottam Didwania as legal heir. Purushottam Didwania instituted one partition suit bearing no.1848 of 1964 against his co-sharers in the High Court at Calcutta. During the pendency of the said suit Purushottam Didwania died and the plaintiff was substituted in the said suit as legal heir of Purushottam Didwania. The plaintiff got the suit premises by virtue of the decree of the said partition suit. The defendant did not make payment of rent in respect of the suit premises to the plaintiff or the receiver appointed by the High Court in the partition suit after expiry of the term of lease deed on 31st July, 1970. It is alleged that the defendant was in wrongful occupation of the suit premises with effect from 1st August, 1970 without making payment of rent of the suit premises. On 12th March, 1998 the plaintiff came to learn that the defendant collected building materials for construction of small rooms on the suit premises and thereafter the plaintiff instituted the suit against the defendant. 3. The original defendant died during the pendency of the suit and his legal heirs were substituted as defendants. The specific contention of the defendants is that they are in uninterrupted possession of the suit premises after expiry of the term of lease on 31st July, 1970 till the date of institution of the suit on 16th March, 1998. 3. The original defendant died during the pendency of the suit and his legal heirs were substituted as defendants. The specific contention of the defendants is that they are in uninterrupted possession of the suit premises after expiry of the term of lease on 31st July, 1970 till the date of institution of the suit on 16th March, 1998. The specific plea taken by the defendants is that the suit is barred by the provisions of the Limitation Act, 1963 as the plaintiff has not taken any step for recovery of possession of the suit premises or renewal of the term of lease or collection of rent from the defendants within a period of 12 years from the date of expiry of the term of lease on 31st July, 1970. The defendants have specifically pleaded before the trial court that they are in possession of the suit premises by asserting ownership with the knowledge of the plaintiff continuously from 1st August, 1970 till the date of institution of the suit on 16th March, 1998 i.e. more than 12 years and thereby they have acquired title in the suit premises by way of adverse possession. 4. The trial court dismissed the suit of the plaintiff by holding that the suit is barred by limitation under Article 67 of the Limitation Act, 1963. It is also held by Learned Judge of the trial court that the defendants have acquired ownership in the suit premises, though adverse possession of the defendants has not been established from the evidence on record. This decision of the trial court is under challenge in the instant appeal. 5. Mr. Prabal Kumar Mukherjee, Learned Senior Counsel appearing on behalf of the appellant submits that after termination of the lease by efflux of time with effect from 1st August, 1970 the status of the defendants in the suit premises will be of gratuitous licensee and not tenant and as such the provision of Article 67 of the Limitation Act, 1963 cannot be invoked to negate the claim of the plaintiff. Mr. Mr. Mukherjee has relied on the Division Bench decision of our High Court in the case of “Prakashwati Chopra V. Sibaji Mitra” reported in 2007 (1) CLJ (Cal) 47 to put forward the argument that after expiry of the period of lease by efflux of time, the possession of lessee would not come within the purview of the definition of “tenant” as laid down in Section 2(g) of the West Bengal Premises Tenancy Act, 1997. The further contention of Mr. Mukherjee is that the defendants have failed to plead and prove by adducing evidence that the defendants are in possession of the suit premises by asserting hostile title with the knowledge of the plaintiff continuously for more than 12 years and as such the defendants cannot claim adverse possession in the suit premises by invoking the provision of Article 65 of the Limitation Act, 1963. Mr. Mukherjee has also relied on the decision of the Supreme Court of India in “Hemaji Waghaji Jat V. Bhikhabhai Khengarbhai Harijan and Ors.” reported in (2009) 16 SCC 517 in support of his above contention. The gist of the contention made on behalf of the appellant is that the original defendant was inducted in the suit premises as tenant by executing a deed of lease by the predecessor-in-interest of the plaintiff and the permissive possession of the defendant cannot become adverse to the plaintiff only for non-payment of rent by the original defendant after expiry of the period of lease and the plaintiff will have the right under the law to recover the possession from the defendants. 6. Mr. H.K. Mitter, Learned Senior Counsel appearing on behalf of the defendants/respondents submits that the lease between the plaintiff and the original defendant is determined by efflux of time under Section 111(a) of the Transfer of Property Act, 1882 after expiry of the term of lease on 31st July, 1970. It is also submitted that there is no evidence of renewal of the lease or offer and acceptance of the rent between the parties after 31st July, 1970, and as such the plaintiff has the right to recover the possession of the suit premises within a period of 12 years from the date of determination of the lease as laid down in Article 67 of the Limitation Act, 1963. Mr. Mr. Mitter also submits that the title of the plaintiff in the suit premises will be extinguished if the plaintiff does not institute a suit for recovery of possession of the suit premises from the defendant within a period of 12 years after determination of the lease i.e. on 1st August, 1982 by virtue of Section 27 of the Limitation Act, 1963. The inaction of the plaintiff for more than 27 years by not instituting any suit for recovery of possession of the suit premises resulted in extinguishment of the title of the plaintiff in the suit premises. Mr. Mitter contends that the possession of the defendant in the suit premises after expiry of the period of lease is construed as “wrongful occupation” by the plaintiff himself in his pleading and as such the claim of adverse possession of the defendant in the suit premises is tenable under the law. Mr. Mitter has relied on two decisions reported in ILR 22 Bombay 893 and 1962 (1) Madras Law Journal 128 in support of his contention. 7. There is no dispute that the original defendant was inducted in the suit premises by the predecessor-in-interest of the plaintiff by executing one lease deed on 6th July, 1954 for non-residential purpose at a monthly rental of Rs.250/- for a period of 16 years commencing from 1st August, 1954 to 31st July, 1970. The further admitted position is that the terms of the lease expired on 1st August, 1970 and the lease was determined by efflux of time with effect from 1st August, 1970 as per provision of Section 111(a) of the Transfer of Property Act, 1882. It is not the case of either of the parties to the suit that the lease was renewed after 31st July, 1970 or there was offer and acceptance of rent between the parties. What transpires from the evidence on record is that the original defendants did not make payment of rent either to the plaintiff or to the receiver who was appointed in connection with the partition suit after expiry of the lease on 31st July, 1970. The possession of the defendant in the suit premises is described as “wrongful occupation” by the plaintiff in Paragraph 4 of the plaint. The possession of the defendant in the suit premises is described as “wrongful occupation” by the plaintiff in Paragraph 4 of the plaint. The argument advanced on behalf of the appellant/plaintiff that the defendant/respondent was a mere licensee in the suit premises after expiry of the period of lease cannot be entertained by this court, because the said plea was not pleaded by the plaintiff in the pleading and the said plea was not taken by the plaintiff before the trial court. In the above circumstances, we have to decide whether the provision of Article 67 of the Limitation Act, 1963 was rightly invoked by the trial court to deny the claim of the plaintiff to recover the possession of the suit premises from the defendants. 8. In “Prakashwati Chopra V. Sibaji Mitra” reported in 2007 (1) CLJ (Cal) 47 cited on behalf of the appellant, the plaintiff lessor instituted the suit for recovery of possession of the tenanted premises within a period of 8 years from the date of determination of the lease by efflux of time and the Hon’ble Single Judge passed order for recovery of possession of the tenanted premises. By upholding the said order of the trial court it is held by the Hon’ble Division Bench in Paragraph 29 that “where the lease expired by efflux of time but the lessee is continuing in possession he/she would not come within the purview of the definition of a “tenant” under Section 2 (g) of the Act of 1997.” This decision does not take into consideration whether the provision of Article 67 of the Limitation Act can be invoked to bar recovery of possession of the tenanted premises after expiry of 12 years from the date of determination of the lease by efflux of time. Accordingly, this decision does not help us to decide the controversy in issue in the instant appeal. 9. The proposition of law laid down by the Privy Council in “Kantheppa Raddi V. Sheshappa” reported in ILR 22 Bombay 893 is that under Article 139 of the Limitation Act, 1908 time begins to run against a landlord when the period of a fixed lease expires, when there is no evidence from which a fresh tenancy can be inferred and not at some indeterminate date after that period. So, the starting point of Limitation for the purpose of recovery of possession of the tenanted premises by the landlord will be the date when the tenancy is determined as laid down in Article 139 of the Limitation Act, 1908 which is in pari material with Article 67 of the Limitation Act, 1963. It is held by the Madras High Court in “Mungaliamman Temple V. Loganatha Naicker” reported in 1962 (1) Madras Law Journal 128 that “the starting point for computation of the period of Limitation under Article 139 of the Limitation Act, 1908 would be the time when the tenancy was determined and not the date of dispossession or discontinuance or when the possession became adverse.” In this reported case the Madras High Court held that the suit was within the prescribed period of limitation as there was no determination of tenancy. The above decisions only indicate that the starting point of limitation for computation of the period of 12 years for the purpose of recovery of possession of the tenanted premises by the landlord under Article 67 of the Limitation Act, 1963 will be the date of determination of the tenancy. 10. In the instant case the original defendant was inducted as tenant in the suit premises for non-residential purpose for a fixed tenure of 16 years which expired on 31st July, 1970. Whatever may be the status of the defendant in the suit premises after determination of the lease by efflux of time, the plaintiff being the landlord has the right to recover the suit premises from the defendant within a period of 12 years from the date of determination of the lease. The plaintiff instituted the suit on 16th March, 1998 i.e. long after 12 years from the date of determination of the lease. Accordingly, we do not have any hesitation to hold that the suit instituted by the plaintiff for recovery of possession of the suit premises from the defendant is barred by Article 67 of the Limitation Act, 1963. We do not find any substance in the submission made on behalf of the appellant that the provision of Article 67 of the Limitation Act, 1963 will not be applicable in the instant suit. We do not find any substance in the submission made on behalf of the appellant that the provision of Article 67 of the Limitation Act, 1963 will not be applicable in the instant suit. Since the plaintiff did not take any action against the defendant for recovery of possession of the tenanted premises within 12 years after expiry of the period of lease on 1st August, 1970, the right of the plaintiff in the suit premises is extinguished by operation of law as laid down in Section 27 of the Limitation Act, 1963 as contended on behalf of the respondents. 11. The classical requirement of adverse possession laid down by the Supreme Court in Paragraph 14 of “Hemaji Waghaji Jat V. Bhikhabhai Khengarbhai Harijan” reported in (2009) 16 SCC 517 is that “the possession required must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the competitor.” It is also held in Paragraph 23 that “the person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed.” In the instant case the defendant vaguely pleaded in the pleading that his possession in the suit premises has become adverse to the real owner with effect from 1st August, 1970 after expiry of the period of lease deed. 12. Admittedly, the defendant has not adduced any evidence before the trial court to prove the facts stated in the pleading. In the absence of any reliable and cogent evidence on the part of the defendant it is well-nigh impossible for us to accept that the possession of the defendant in the suit premises became adverse to the plaintiff after expiry of the term of lease deed on 1st August, 1970. Accordingly, the defendant cannot get the benefit of the law laid down in Article 65 of the Limitation Act, 1963. In view of our above findings, we do not find any merit in this appeal. The judgment and decree passed by Learned Judge of the court below in Title Suit No.458 of 1998 is hereby affirmed. Let a copy of this judgment and order be sent down to the Learned Court below along with lower court records for favour of information.