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2015 DIGILAW 978 (CAL)

Piyali Das v. Gurudas Chakraborty

2015-12-21

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This Second Appeal is directed against the judgment and decree dated 31st March, 2015 passed by the learned Judge, XI Bench, City Civil Court at Calcutta, in Title Appeal No. 53 of 2014 reversing the judgment and decree passed on 24th April, 2014 by the learned Judge, 3rd Bench, Presidency Small Causes Court, Calcutta, in Ejectment Suit No. 298 of 2005 at the instance of the defendant/appellant. 2. Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. 3. The plaintiff filed a suit for eviction against the defendant/appellant on the ground of default in payment of rent and also on the ground of reasonable requirement of plaintiff and the members of his family. The defendant contested the said suit by filing written statement denying the material allegations therein. The case of reasonable requirement of the suit premises which was made out by the plaintiff was categorically denied by the defendant in the written statement. 4. Though, the defendant categorically stated in paragraphs 7 & 8 of the written statement that the plaintiff was never a thika tenant in respect of the suit premises and he is not a bharatia under the plaintiff, but the plaintiff in his cross-examination stated that he is a thika tenant and a document to substantiate his thika tenancy has also been produced by the plaintiff which is marked as exhibit - 2 therein. The learned Trial Judge considering this part of the evidence of the plaintiff ultimately came to the conclusion that the plaintiff was a thika tenant and the defendant is a bharatia under him and thus held that in view of the provision contained in Section 21 of the West Bengal Thika Tenancy (Acquisition & Requisition) Act, 2001; no suit for eviction of a bharatia can be maintained by the thika tenant before the Civil Court. 5. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned First Appellate Court. The learned First Appellate Court reversed the findings of the learned Trial Court by considering the evidence of the parties on record. 5. Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned First Appellate Court. The learned First Appellate Court reversed the findings of the learned Trial Court by considering the evidence of the parties on record. The learned First Appellate Court held that admission of a party couldn't be gathered by reading two-line cross-examination of the plaintiff. The learned First Appellate Court held that the evidence as a whole should be considered for finding out as to whether a party made any admission in his evidence or not. Considering the pleadings of the parties and their evidence as a whole, the learned First Appellate Court held that it was nobody's case in their pleadings that the plaintiff was a thika tenant in respect of the suit premises and the defendant was a bharatia. On the contrary, by referring to the pleadings of the defendant, made out in paragraphs 7 & 8 thereof, the learned First Appellate Court held that this is not a case where the defendant claimed that plaintiff was a thika tenant and the defendant was a bharatia. After taking into consideration the pleadings of the parties and their evidence, the learned appellate court held that the plaintiff is the landlord and the defendant is the tenant under the plaintiff and the tenancy of the defendant is governed by the West Bengal Premises Tenancy Act. The learned First Appellate Court, however, held that the plaintiff is not entitled to get any decree for eviction on the ground of default in payment of rent as he deposited the entire arrear rent in compliance with the provision contained in Section 7(2) of the West Bengal Premises Tenancy Act, 1997. The learned First Appellate Court also held that in order to get a decree for eviction on the ground of reasonable requirement under the West Bengal Premises Tenancy Act, 1997; the plaintiff is not required to prove that he is the owner of the suit premises. Considering the extant of requirement made out by the plaintiff and the evidence of the parties in respect of their respective pleadings, the learned First Appellate Court came to the conclusion that the plaintiff reasonably requires the suit premises and as such, a decree for eviction was passed against the defendant. 6. Considering the extant of requirement made out by the plaintiff and the evidence of the parties in respect of their respective pleadings, the learned First Appellate Court came to the conclusion that the plaintiff reasonably requires the suit premises and as such, a decree for eviction was passed against the defendant. 6. Being aggrieved by and dissatisfied with judgment and decree of the learned first appellate court, the instant Second Appeal has been filed by the defendant/appellant. 7. Let us now consider the merit of the instant appeal in the facts of the instant case. 8. Ms. Bhattacharya, learned advocate, appearing for the appellant argues before us very seriously to demonstrate that the plaintiff is a thika tenant and the defendant is bharatia and as such, the suit for eviction was not maintainable before the Civil Court in view of the provision contained in Section 21 of the said Act. She has also relied upon the challan showing deposit of rent by the plaintiff with the Thika Controller. She, thus, supported the judgment of the learned Trial Judge and challenged the legality of the finding of the learned First Appellate Court. 9. Let us now consider the substance of such contention of Ms. Bhattacharya in the facts of the present case. 10. We have already narrated the case made out by the respective parties in their pleadings. It is neither the case of the plaintiff, nor the case of the defendant that the plaintiff is a thika tenant and the defendant is a bharatia under him. The defendant never claimed in the plaint that he is a thika tenant under the zaminder and the interest of the zamindar vested with the suit and he became a thika tenant in the suit premises. The defendant also in paragraphs 7 & 8 of the written statement categorically stated that the plaintiff is not a thika tenant and he is not a bharatia under the plaintiff in respect of the suit premises. 11. Considering the pleadings of the respective parties in this regard, we find that the parties were not an issue with regard to the nature of right which the plaintiff had/has in the suit property. No issue was also raised in the suit in this regard. 11. Considering the pleadings of the respective parties in this regard, we find that the parties were not an issue with regard to the nature of right which the plaintiff had/has in the suit property. No issue was also raised in the suit in this regard. As such, even if any evidence is given by any of the parties which is beyond the pleadings of the parties, such evidence cannot be considered by the Court in view of the well settled principle of law that no amount of evidence beyond the pleadings of the parties can be looked into by the court, as enunciated by the Privy Council, reported in A.I.R. 1930 P.C. 57. We find reiteration of such principle of law in the subsequent decision of the Hon'ble Supreme Court, reported in 1998 (9) JT 40 . 12. Keeping in mind the aforesaid principles of law, we hold that the learned First Appellate Court did not commit any mistake by holding that the plaintiff is the landlord of the defendant and the defendant is his tenant and the said tenancy is governed by the West Bengal Premises Tenancy Act and mere deposit of rent by the plaintiff with the Thika Controller cannot make any property a thika tenancy property, when particularly the conditions for declaring such property as thika tenancy are not satisfied. 13. On perusal of the impugned judgment passed by the learned First Appellate Court, we do not find any illegality in it. The finding regarding reasonableness of requirement of the plaintiff in respect of the suit property is a finding of fact and when the First Appellate Court being final court of fact finding came to the conclusion that the plaintiff reasonably requires the suit premises, we do not like to interfere with such findings of fact of the First Appellate Court. 14. We do not find involvement of any substantial question of law in this appeal. Hence, we decline to admit this appeal. 15. The appeal, thus, stands dismissed.