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2016 DIGILAW 575 (CAL)

Vijay Kumar Raijada v. Ratan Kumar Surana

2016-07-22

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : ISHAN CHANDRA DAS, J. 1. Assailing the judgment and decree dated 23.12.2013 in T.S. 1239 of 2006 passed by learned Judge, VIIth Bench, City Civil Court, Calcutta, the present appeal being F.A. 239 has been preferred by the defendant/appellant (hereinafter referred to as defendant for convenience) against whom a decree for eviction was passed by learned trial Court upon declaration that he was a trespasser to the demised premises. The defendant was also directed to give vacant possession of the premises in question within three months from the date of order and to pay mesne profits to the tune of Rs.10,000/- p.m. for his illegal occupation of the said premises. 2. Being aggrieved by and dissatisfied with the said judgment and decree, the present appeal has been preferred. 3. The case of the plaintiff/respondent is summarized as follows:- The plaintiff/respondent (hereinafter referred to as plaintiff for convenience), at whose instance the decree of eviction was passed, stated in his plaint of T.S. 1239 of 2006 that the premises referred to in the schedule of the plaint originally belonged to one Tilok Chand Surana and on his death, his legal heirs i.e. two sons Hanslal and Himmatraj and the legal heirs of a predeceased son Bachraj (i.e. Chand Kumari Devi & Abhoy Sing Surana) became the owners. Subsequently in 1978, by virtue of a deed of partition, the suit premises was allotted to Chand Kumari Devi. The defendant/appellant herein was a monthly tenant in respect of one tin shed go-down, situated in the back portion of the undivided premises no. 3 Mangoe Lane and after the allotment of entire back portion to Smt. Chand Kumari Devi, the defendant surrendered his tenancy right, in respect of the premises subsequently numbered as 3/1A Baretto Lane, on 30.11.1981 as he agreed to continue his tenancy right in respect of the front portion of the premises at 3A Mangoe Lane. After getting vacant possession of the back portion of the premises (numbered as 3/1A Baretto Lane), Chand Kumari Devi constructed a four storeyed building and was in possession and enjoyment of the same till her death on 18.03.1993. Previously said Chand Kumari Devi executed a will in respect of the said property in favour of the plaintiff, who happens to be the wife of her son Abhoy Singh Surana, and, Chand Kumari appointed her son Abhoy Singh as executor of the said will. Previously said Chand Kumari Devi executed a will in respect of the said property in favour of the plaintiff, who happens to be the wife of her son Abhoy Singh Surana, and, Chand Kumari appointed her son Abhoy Singh as executor of the said will. In the year 1993, the probate of the will was granted by the Hon’ble High Court, Calcutta and the plaintiff became the absolute owner of the property but it was looked after and managed by said Abhoy Singh Surana till June, 2004, till the property was handed over to the plaintiff for its development and enjoyment. Since there was a long standing good relationship between the parties, the plaintiff permitted the defendant to keep his business articles in a newly constructed incomplete hall measuring 900 sq. ft. at 3/1A Baretto Lane without monetary consideration with a condition that the defendant would surrender possession of the said room by removing all the articles, whenever desired by the plaintiff. The defendant started possessing the said room taking advantage of such good relationship with the plaintiff. Subsequently, the plaintiff repeatedly requested the defendant to quit and vacate the suit premises as per agreed terms and conditions, as the same was urgently required by the plaintiff for her own use and occupation and for carrying on business by her son but as the defendant did not pay heed to her request that prompted her to take recourse of the Court, seeking redress in terms of prayers of the plaint. 4. The appellant herein being the defendant of the original suit contested the same by filing a written statement and contended that the suit was not maintainable, the same being a speculative one. Denying the cause of action as averred in the body of the plaint, he further stated that he was inducted as a tenant in respect of a tin shed go-down measuring 900 sq. ft. in the southern back portion of the premises no. Denying the cause of action as averred in the body of the plaint, he further stated that he was inducted as a tenant in respect of a tin shed go-down measuring 900 sq. ft. in the southern back portion of the premises no. 3, Mangoe Lane in 1965 and the rate of rent was Rs.241/- per month payable according to English Calendar by Abhoy Singh Surana, the husband of the plaintiff/respondent herein and subsequently said Abhoy Singh Surana wrote a letter to the defendant informing him that he attorned his (defendant’s) tenancy in favour of his mother Chand Kumari Devi who by her letter dated 17.03.1981, written to the Proprietor of the M/S. Vijay Box Manufacturing Co., informed that she intended to construct a new building in the back portion of the premises no. 3, Mangoe Lane by demolishing the existing structure and as per agreement between them, an alternative space in the adjoining premises was allotted to the defendant for running his business till the construction was completed, subject to condition that on completion of such construction the defendant would be given back the possession of 900 sq. ft. space of his original tenancy. The defendant further stated that as there was delay in completion of such construction, he was allowed by the husband of the plaintiff to occupy the demised premises to keep his articles of business in the space measuring 900 sq. ft. Denying the factum of surrender of tenancy to Chand Kumari Devi, the defendant further stated that he gave up possession of his existing tenancy in the back space in favour of Chand Kumari Devi upon her assurance that she would reinstate him in the said building when its construction would be complete. Denying and disputing the existence of any valid document regarding surrender of his tenancy right, this defendant stated in his written statement that he was in possession of the space since 1987 as a tenant at the instance of none but Abhoy Sing Surana, the husband of the present plaintiff. Further denying his status as trespasser to the disputed premises, he categorically contended that as he was occupying the premises as a bona fide tenant, the plaintiff was not entitled to the decree for eviction against him. 5. Further denying his status as trespasser to the disputed premises, he categorically contended that as he was occupying the premises as a bona fide tenant, the plaintiff was not entitled to the decree for eviction against him. 5. Upon rival pleadings of the parties learned trial Court framed 11 issues altogether and disposed of the same by passing a decree, in favour of the plaintiff as noted earlier leading the defendant to prefer this appeal. 6. Initially the suit was dismissed before learned Court below on 19.04.2010, and an appeal being F.A. 189 of 2010 was preferred against the said judgment against the order of dismissal before a Division Bench of this Court where the judgment of learned trial Court was set aside on 02.07.2012 and the suit itself was sent back on remand for taking fresh decision after allowing the parties to lead evidence and to test the veracity of Ext. 2 & 2/1, regarding surrender of tenancy in favour of the plaintiff as claimed, by way of examination of the same by any handwriting expert and to decide the suit afresh and following such direction on remand the suit was decreed in favour of the petitioner, upon consideration of the materials on record including the document of surrendering tenancy by Ext. 2 & 2/1. 7. Whether learned trial Court was justified in passing the decree in favour of the plaintiff is the only point to be decided in this appeal. 8. Upon careful consideration of the evidence, both oral and documentary on record, learned trial Court found the following admitted facts which was also admitted by Mr. Bhattacharyya, learned Counsel appearing for the appellant who at the very outset of his argument with all fairness could not deny the same. (1) The demised premises originally belonged to one Tilok Chand Surana and on his death the right, title & interest of the said premises devolved upon his legal heirs by operation of law. (2) It is also not disputed that by virtue of a deed of partition, Chand Kumari Devi, the mother in law of the plaintiff became the exclusive owner of the property and subsequently on the strength of a probated will; the plaintiff became the owner of the back portion of the property of 3A Mangoe Lane. (2) It is also not disputed that by virtue of a deed of partition, Chand Kumari Devi, the mother in law of the plaintiff became the exclusive owner of the property and subsequently on the strength of a probated will; the plaintiff became the owner of the back portion of the property of 3A Mangoe Lane. (3) Previously the property was numbered as 3A Mangoe Lane but after partition it was fragmented into two parts and the front portion remained 3A Mangoe Lane but the rear portion of it was renumbered as 3/1A Baretto Lane. (4) The defendant being the Proprietor of Vijay Box Manufacturing Co. was a tenant in respect of a tin shed go-down in the back portion of the premises which was renumbered as 3/1A, Baretto Lane under Chand Kumari Devi and he has another tenancy in the said premises as Proprietor of M/S. Raijada Packaging Industries. (5) Abhoy Singh Surana, the husband of the plaintiff would look after the property during the life time of his mother and after her death, he would look after the said property as an executor of the will of his mother and after probate of the will he handed over the premises no. 3/1A, Baretto Lane in June, 2004. (6) It is not disputed rather it is categorically admitted by the defendant/appellant herein that he was inducted as a tenant in respect of a go-down in the back portion of the premises at 3A Mangoe Lane (renumbered as 3/1A Baretto Lane) as proprietor of Vijay Box Manufacturing Co. on 01.06.1965 by virtue of Ext. 2 and he was further inducted in respect of the front portion of 3A Mangoe Lane on 01.11.1974 as the Proprietor of Raijada Packaging Industries. 9. Mr. Bhattacharya, learned senior Counsel for the appellant in course of his argument submitted that his client never surrendered his tenancy in respect of the go-down occupied by him as Proprietor of M/S. Vijay Box Manufacturing Co. in the premises no. 3/1A Baretto Lane in favour of the landlady Chand Kumari Devi on 30.11.1981. With reference to the statement given in the written statement, as well as the oral testimony of the defendant (DW-1) (at page 128 of the Paper Book) he submitted that sometime in December 1981, the defendant was shifted from his existing tenancy measuring 900 sq. ft. to the alternate space measuring 625 sq. ft. With reference to the statement given in the written statement, as well as the oral testimony of the defendant (DW-1) (at page 128 of the Paper Book) he submitted that sometime in December 1981, the defendant was shifted from his existing tenancy measuring 900 sq. ft. to the alternate space measuring 625 sq. ft. at the request of the then landlady Chand Kumari Devi with a hope that after construction of the new building in the back portion of the premises, he would be accommodated once again but the defendant continued to pay rent as per the existing rate. To fortify his argument, learned senior Counsel for the defendant/appellant clarified the provision of Section 108B(e) of the Transfer of Property Act and relying on a decision of the Hon’ble Apex Court in Shaha Ratansi Khimji and sons vs. Kumbhon Sons Hotels Private Limited & Ors. reported in, (2014) 14 S.C.C. 1 , he submitted that “even if the tenanted premises is completely destroyed and renders the tenanted premises substantially or permanently unfit for the purpose for which it was let out, the lease subsists till the tenant terminates the lease.” Pointing out the verdict of the Hon’ble Court as quoted above, he confidently opined that similar analogy would be applicable in the instant case in favour of his client who continued to pay rent to his landlady all along. 10. Mr. Chatterjee, learned Counsel for the respondent in course of his argument drew our attention to the relevant portion of the judgment of learned Court below and pointed out that learned trial Court examine the agreement surrendering tenancy of the premises at 3/1A Baretto Lane to the landlady, Chand Kumari Devi by virtue of another agreement (Ext. 2). He also submitted with reference to the oral testimony of the appellant herein (DW-2 at page 135 to 137 of the Paper Book)) that the defendant/appellant himself admitted his signature in the relevant document (Ext. -2/1 at page 11 of part II of the Paper Book) and opined that the document (Ext. 2 & 2/1) being the document of decisive character can be made the basis of eviction of the defendant on the strength of which learned trial Court recorded the favourable decree in favour of his client. 11. -2/1 at page 11 of part II of the Paper Book) and opined that the document (Ext. 2 & 2/1) being the document of decisive character can be made the basis of eviction of the defendant on the strength of which learned trial Court recorded the favourable decree in favour of his client. 11. In this context, we may quote the statement of the defendant/appellant, what he stated in his cross-examination as DW1 -- “It is a fact that I am in occupation of that premises. Further it is a fact that I am not paying any farthing for user of that premises.” This admission on the part of the appellant clearly established that he was a licensee in respect of the demised premises and on revocation of license; his status became no longer a licensee but a trespasser to the said premises. Here the defendant/appellant disputed the title of the plaintiff/respondent herein in respect of premises in question but in view of the provision of 116 of the Evidence Act he is estopped from denying the same. Learned trial Court in the impugned judgment categorically discussed all the issues and came to a legitimate conclusion that the status of the appellant was nothing but a trespasser to the demised premises and he is liable to be evicted at the sweet will of the landlord i.e. the plaintiff herein. 12. Though the defendant claimed that he did not surrender the tenancy in respect of the suit premises and the said tenancy is still continuing but he could not produce any single rent receipt showing payment of rent in respect of the suit premises since the time of his shifting to his alternative tenancy in the front portion of the said premises. Non-payment of rent in respect of the suit premises since the time of his shifting to the alternative tenancy in the front portion of the said premises coupled with his admission regarding termination of his tenancy in respect of the suit premises support the claim of the plaintiff that because of cordial relation between the parties, the defendant, even after termination of his tenancy in the suit premises, was permitted to use the suit premises as his godown, without any consideration and after revocation of such permission by the plaintiff, the defendant became a trespasser in the suit property. 13. 13. Hence, taking into consideration the fact and circumstances of the case we are fully in agreement with the views taken by learned trial Court. Since no other issues were agitated before us in the present appeal, we firmly conclude that learned trial Court was justified in passing the decree of eviction of the defendant/appellant herein. 14. Hence, the judgment and decree of eviction passed by the learned Trial Court against the appellant are hereby affirmed. The appellant is directed to quit and vacate and deliver vacant and khas possession thereof to the plaintiff within one month from date. 15. However, the direction of learned trial Court with regard to payment of occupational charges is hereby set aside, the same not being substantiated by cogent evidence and we direct that the respondent/plaintiff would be entitled to the mesne profits in a separate proceeding under order 20 rule 12 of the Code of Civil Procedure. 16. Having regard to the fact that the eviction decree passed by the learned Trial Court is maintained by us, we permit the plaintiff/respondent to withdraw the occupational charges which was deposited by the appellant in terms of the interim order passed by this Court for enjoying the benefits thereof. 17. The impugned judgment and decree of the learned Trial Court is modified to the above extent. 18. The appeal is thus disposed of. 19. Parties do bear their respective costs of this appeal. 20. Urgent Xerox certified copy of this judgment, if applied for, be supplied to the learned Advocates for the parties upon compliance of all formalities. I agree.