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2016 DIGILAW 981 (CAL)

Technoshop Private Limited v. Clive Hughes

2016-12-08

SHIVAKANT PRASAD

body2016
JUDGMENT : This is a suit for eviction of a trespasser valued at Rs. 29,40,000/-. Plaintiff’s case in brief is that in or about 1960 on Mrs. M. Jansz was inducted by the plaintiff’s predecessor in title as monthly tenant in respect of flat no. 11, on the 2nd floor of the front building comprised at Municipal premises no. 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087 (hereinafter known as suit premises) at a monthly rental of Rs. 370/- payable according to the English Calendar month. 2. Said Mrs. M. Jansz regularly made payment of the monthly rent to the plaintiff’s predecessor in title and thereafter to the plaintiff who died in or about 2001 at the suit premises. 3. None of the heir or legal representative of the said tenant tendered such rent to the plaintiff in respect of the suit property. 4. The plaintiff on enquiry discovered that one Clive Hughes, son of Late Collin Robert is a trespasser in wrongful possession of the suit premises on and from September, 2001, being the date of death of the said Mrs. M. Jansz and is thus liable to be evicted from the suit premises. 5. Hence, the suit for a decree for eviction of the defendant from the suit premises as described in the Schedule to the plaint and mesne profit. 6. The defendant contested the suit by denying all material particular made in the plaint and contended that Mrs. May Jansz, died on 12th May, 1988 and her daughter Mrs. Muriel Patience Jansz was inducted as the tenant in respect of the suit premises at a monthly rental of Rs. 185/- payable according to English Calendar month. 7. Mrs. Muriel Patience Jansz was married to Mr. Collin Robert Hughes who died on 5th of May, 1979 and after the death his widow Mrs. Muriel Patience Hughes adopted her maiden name and came to be known as Mrs. Muriel Patience Jansz. 8. Defendant’s further contention is that said Mrs. M. Jansz died on 23rd August, 2001 at the suit premises leaving her surviving son, the defendant no. 1 herein and her daughter Colleen Dolores Hughes Revelli. The defendant is the son of Mrs. Patience Murial Hughes and the late Collin Robert Hughes and the grandson of Mrs. May Jansz. 9. 8. Defendant’s further contention is that said Mrs. M. Jansz died on 23rd August, 2001 at the suit premises leaving her surviving son, the defendant no. 1 herein and her daughter Colleen Dolores Hughes Revelli. The defendant is the son of Mrs. Patience Murial Hughes and the late Collin Robert Hughes and the grandson of Mrs. May Jansz. 9. The defendant is the son of the admitted tenant and was residing with her mother at the suit premises at the time of her death and rent was duly tendered by the defendant which was refused by the plaintiff; rent has since been deposited with the rent controller. So, there was no default in payment of rent. 10. The tenancy in respect of the suit premise is governed by the West Bengal Premises Tenancy Act, 1997 and as such this Hon’ble High Court would not have jurisdiction to entertain and try the present suit. 11. Thus, the defendant has prayed for dismissal of the suit with costs. 12. On the above pleadings following issues have been framed: 1. Is the defendant a son and the last heir of the deceased recorded tenant or trespasser of the suit premises? 2. Whether this Court has got the jurisdiction to entertain the present suit? 3. Whether the defendant, being the son of the admitted tenant, was residing at Flat No. 11 on the 2nd Floor on the front building of premises no. 12/1, Lindsay Street, Police Station- New Market, Kolkata-700 087 at the time of death of the admitted tenant? 4. Whether the defendant is the heir and legal representative of the said original tenant within the meaning of the West Bengal Premises Tenancy Act, 1997? 5. Whether the defendant is a trespasser and is in wrongful possession of the suit property on and from September 2001? 6. Whether the defendant is liable to vacate the suit premises? 7. Whether the plaintiff is entitled to claim mesne profit against the defendant for wrongful possession of the suit property? 8. Whether the plaintiff is entitled to a decree for eviction and khas possession of the suit property as described in the Schedule of the plaint against the defendant? 9. Whether the plaintiff is entitled to a decree for Rs. 29,40,000/- as and by way of mesne profit against the defendant? 10. 8. Whether the plaintiff is entitled to a decree for eviction and khas possession of the suit property as described in the Schedule of the plaint against the defendant? 9. Whether the plaintiff is entitled to a decree for Rs. 29,40,000/- as and by way of mesne profit against the defendant? 10. Is the plaintiff entitled to decree as prayed for and what relief or relief, if any? Issue nos. 1, 3, 4, 5 and 6 : 13. These issues are taken up together for the sake of convenience in discussion and for brevity. 14. At the outset Mr. Deb Kumar Sen, learned Advocate for the plaintiff has invited my attention to averment made in paragraphs 5, 6 and 8 of written statement and submitted that the defendant has averred that Mrs. May Jansz died on 12th May, 1988 and her daughter Mrs. Muriel Patience Jansz was inducted as the tenant in respect of the suit premises at a monthly rental of Rs. 185/- payable according to English Calendar month. 15. It is submitted that she was married to Mr. Collin Robert Hughes died on 5th of May, 1979 and after the death his widow Mrs. Muriel Patience Hughes adopted her maiden name and came to be known as Mrs. Muriel Patience Jansz. 16. According to the defendant there was no default in payment of the rent in respect of the suit premises and such rent was always tendered by the defendant on behalf of his mother Mrs. M. Jansz who died on 23rd August, 2001 at the suit premises leaving him and sister Colleen Dolores Hughes Revelli as surviving heirs. 17. It is contended that the defendant is the only son of Mrs. Patience Murial Hughes and late Collin Robert Hughes and the grandson of Mrs. May Jansz who has tendered the rent after the demise of Mrs. M. Jansz for the month of September, 2001 to Shri Jatin Chatterjee, the representative of the plaintiff, but he refused to accept the rent. Then the rent was tendered through money order but they were also refused. So the defendant deposited the rent with the Rent Controller. Therefore, the defendant is not a trespasser into the suit premises rather a tenant having inherited the right of tenancy in respect of the suit premises from the recorded tenant being his deceased mother M. Jansz. 18. Mr. So the defendant deposited the rent with the Rent Controller. Therefore, the defendant is not a trespasser into the suit premises rather a tenant having inherited the right of tenancy in respect of the suit premises from the recorded tenant being his deceased mother M. Jansz. 18. Mr. Sen pointed out that the identity of the defendant is in question as there is no evidence showing any rent receipt or rent bill in his name and the identity of the person’s name appearing in the various paragraphs of the written statement also creates doubt because name of Mrs. May Jansz in paragraph 5 and Mrs. Muriel Patience Jansz in paragraph 6 are different persons. 19. In support of such contention my attention is invited to Exhibits-13, 14 and 15 being the photocopies of passports of Mary Jansz and Hughes Patience Murial respectively. 20. Mr. Sen adverted to Exhibit 15 and page 110 of Judge’s brief of documents showing that there is no name of the defendant disclosed by Hughes Patience Murial in the passport whereas the defendant claims himself to be the only son of said Muriel Jansz. 21. It is pointed out that Exhibit 1 to 2 being the Extract from the Register of Burials kept at the Lower Circular Road Cemetery for the month of August 2001 and the certificate of death respectively show that M. Jansz died on 23rd August, 2001 who was the widow of late Collin Robert Hughes and the Certificate of death Exhibit 2 shows the permanent address at Suit No. 2, 2nd floor at 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087. 22. It would appear from the certificate of baptism at page 76 of Judge’s brief of documents that Clive William, the defendant herein was the son of Collin Robert and Patience Murial Jansz – Hughes, his date of birth is on 6th January, 1943. DD 12 at page 77 of the Judge’s brief of documents reflects that the certificate of baptism of Muruel Patience shows her date of birth on 8th September, 1921 who was daughter of Arthur Henry and Mary Lilian Jansz. 23. Mr. Anirban Kar, learned Advocate for the defendant refers to paragraph 2 of the plaint wherein plaintiff has admitted the fact that in or about 1960 one Mrs. 23. Mr. Anirban Kar, learned Advocate for the defendant refers to paragraph 2 of the plaint wherein plaintiff has admitted the fact that in or about 1960 one Mrs. M. Jansz was inducted by the plaintiff’s predecessor in title as monthly tenant over and in respect of one residential flat, being flat no. 11, on the 2nd floor of the front building comprised at Municipal premises no. 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087, at a monthly rental of Rs. 370/- payable according to the English Calendar month and the said flat consisted of two rooms, one kitchen, one bath room privy and latrine having more or less 600 sq.ft. of covered area and submitted that the said averment as regards the quantum of rent @ 270/- per month payable as per the English Calendar month cannot be relied and accepted. 24. It would appear from the rent receipts for the month of April, May, June, July, October, November and December, 1950 collectively marked as Exhibit-7 that Mrs. M. Jansz was a tenant in respect of the suit premises at a monthly rental of Rupees one hundred fifty one and fourteen annas. Rent receipts for the months of August, 1954 and January, 1956 Exhibit-8 which were paid @ 185/-per month. It signifies that rent was enhanced to Rs. 185/- in the year 1954. Rent receipts Exhibit-9 collectively are for the month of August 1990 for March, April, June, July, August, September, October, November and December, 1988 issued by Techno Shop Private Ltd. in favour of Mrs. M. Janz. Rent receipts for the months of August, September and October, 1990; April, 1991; August, September, October and November, 1995; August, 1996, January and May, 1997 are all @ 185 per month according to English Calendar month admittedly issued by the plaintiff concern to Mrs. M. Janz in respect of the suit premises. 25. It would appear from rent receipt no. 354 dated 19.12.1997 issued by the plaintiff Techno Shop Private Ltd. to Mrs. May Jansz that a sum of Rs. 370/- was paid by Mrs. May Jansz to the plaintiff concerned in the premises no. 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087. 26. I have observed that as per the certificate of death Exhibit- 2 of Mrs. 354 dated 19.12.1997 issued by the plaintiff Techno Shop Private Ltd. to Mrs. May Jansz that a sum of Rs. 370/- was paid by Mrs. May Jansz to the plaintiff concerned in the premises no. 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087. 26. I have observed that as per the certificate of death Exhibit- 2 of Mrs. May Jansz wife of late Collin Hughes who died on 23rd August, 2001 had also another Suit No. 2, 2nd floor at 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087. Therefore, may be that the rent receipt for Rs. 370/- was for both the Suit No. 2 and 11 of Municipal premises no. 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087. It is well proved from the certificate of baptism that the defendant is the son of late Collin Robert Hughes and Patience Murial Hughes. Certificate of baptism dated 28th October, 1921 of Muriel Patience Jansz shows that Mary Lilian Jansz and Arthur Henry Jansz were mother and father of Muriel Patience Jansz. 27. The passport of Clive William Exhibit-10 issued on 25.6.2015 reveals that Collin Robert Hughes and Patience Hughes are mother and father of the defendant. Passport of the defendant Exhibit-11 issued on 05.10.2014 and passport Exhibit-12 of the defendant issued on 30.12.1985 also show that Collin Robert Hughes was the father of the defendant. Passport of Hughes Patience Murial Exhibit-14 issued on 30th November, 1982 reflects the name of Collin Robert Hughes as the husband having permanent address at flat no. 11 of 12/1, Lindsay Street, Police Station New Market, Calcutta-700087 whose date of birth is on 8.9.1921. Passport Exhibit-15 of said Hughes Patience Muriel Jansz issued on 10th August, 1972 reveals the name of Colin Hughes as her husband. Passport Exhibit-13 of Mary Jansz of 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087 issued on 6th day of May, 1957 shows the name of late A.H. Jansz as her husband. 28. Therefore, the relationship of the defendant with that of the recorded tenant is well understood and evidenced from the aforesaid exhibited documents on record. 29. My attention is further invited by Mr. 28. Therefore, the relationship of the defendant with that of the recorded tenant is well understood and evidenced from the aforesaid exhibited documents on record. 29. My attention is further invited by Mr. Kar, learned Advocate for the defendant to the rent receipts from the month of April, 1993 to August, 1993 Exhibit-C collectively which show that the plaintiff issued rent receipts in favour of the tenant M. Jansz of 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087 @ 185/- per month. The photocopies of rent receipts for the month of October to December, 1993 issued by the plaintiff Exhibit-E on admission reveals the name of M. Jansz bearing signature of the defendant Clive Hughes and the signature appearing on the Exhibit-E is admitted by the defendant as that of his. In this context, it is submitted by Mr. Kar that it is the defendant who used to pay the rent in respect of the suit premises that used to be issued in the name of M. Jansz who remained as a tenant at the suit premises. Notice dated 3rd July, 1961 Exhibit 3 issued by Naresh Nath Mookerjee to Mrs. M. Janzs admitting her as a tenant in respect of the suit premises. Notice dated 6th August, 1968 Exhibits 4 issued to all tenants by said Naresh Nath Mookerjee informing that by a Deed of Trust he had transferred an Undivided Half Share of above property on and from 1st April to the “Naresh Nath Mookerjee Trust Estate” who will bill for half share of the rent and tenant was accordingly requested to atorn payment of rent to the said Trust Estate on and from 1st April, 1968. P.S. Bhattacherjee, Executor to the Estate of late Naresh Nath Mookerjee by his letter of attornment dated 10th April, 1986 Exhibit-5, Mrs. M. Janz was advised to attorn the rent to M/s. Techno Shop Private Limited on and from 1st April, 1986 at a rental of Rs.92.50 per month being the half of the undivided share. 30. Letter dated 30th May, 1987 Exhibit-6 of the plaintiff also reflects that Mrs. M. Janz was requested to make arrangement for payment in respect of monthly rent by A/c. Payee Cheque favouring Techno Shop Private Limited. 31. 30. Letter dated 30th May, 1987 Exhibit-6 of the plaintiff also reflects that Mrs. M. Janz was requested to make arrangement for payment in respect of monthly rent by A/c. Payee Cheque favouring Techno Shop Private Limited. 31. Thus, the aforesaid documentary evidence on record and oral evidence adduced by the plaintiff in clear crystal term prove that the defendant Clive Hughes is the son of Collin Robert Hughes and Mrs. M. Janz who was daughter of the original recorded tenant M. Janz whose name was Mary Jansz. Therefore, the defendant happened to be the grandson of the recorded tenant and the tenancy right has been inherited by him who last resided at the suit premises. All the documentary evidence clearly reflects the status of the defendant as having occupied the tenanted premises of her grandmother and that of her mother. 32. Therefore, plaintiff’s case that the defendant is occupying the suit premises as a trespasser cannot be accepted. Documents also reveal that after the demise of his mother, he remitted rents by money order which were refused by the plaintiff and the defendant deposited rent with Rent Controller which fact is evident from the photocopies of rent challans. 33. Thus, the above issues are decided in favour of the defendant holding that the defendant is admittedly the son of recorded tenant of flat no. 11 on the 2nd floor of the suit premises no. 12/1, Lindsay Street, Police Station New Market, Calcutta-700 087 and is an heir and legal representative of the original tenant within the meaning of West Bengal Premises Tenancy Act, 1997. Therefore, the defendant cannot be held to be a trespasser in wrongful possession of the suit premises from September, 2001 and is not liable to be evicted therefrom without the due process of law. Issue nos. 2, 7, 8, 9 and 10 : 34. All the above issues are interlinked hence taken up together for the sake of convenience in discussion and for brevity. 35. Mr. Kar, learned Advocate for the defendant adverted to the averment made in paragraph 12 of the plaint whereby the plaintiff contended that the cause of action arose in September, 2001 when the said defendant purportedly took wrongful possession and the cause of action is continuing day to day suit is not barred by law of limitation. In this regard Mr. Kar, learned Advocate for the defendant adverted to the averment made in paragraph 12 of the plaint whereby the plaintiff contended that the cause of action arose in September, 2001 when the said defendant purportedly took wrongful possession and the cause of action is continuing day to day suit is not barred by law of limitation. In this regard Mr. Kar refers to Article 87 of the Limitation Act, 1963 which provides that the period of limitation is three years from the date of the trespass for compensation for trespass of an immovable property as claimed by plaintiff. In this case after the plaintiff has specifically stated that defendant has a trespassed into the suit premises and is in wrongful possession since September, 2001 and, therefore, the suit having been filed on 14.12.2009 is clearly barred by limitation in view of the provision of Article 87 of the Limitation Act, 1963. 36. Mr. Kar further invites my attention to answer to question nos. 77, 78, 79, 80 and 81 which shows that there is no proper calculation for valuation of the suit for the claim of compensation towards the decree for mesne profit and referred to a case of Fateh Chand v. Balkishan Dass reported in AIR 1963 SC 1405 wherein the Hon’ble Supreme Court held in the following words: “The normal measure of mesne profits is the value of the user of land to the person in wrongful possession. The assessment of compensation based, not on the value of the user but on an estimated return on the value of the property, cannot be sustained. Normally a person in wrongful possession of immovable property has to pay compensation computed on the basis of profits he actually received or with ordinary diligence might have received. Besides the mesne profits, the plaintiff is also entitled to interest on such mesne profits: vide S. 2(12).” 37. I have respectfully gone through the decision and considering the evidence of the plaintiff’s witness, I am of the view that the suit has not been valued for compensation on account of alleged wrongful possession by the defendant. And in view of my findings in the foregoing paragraph, I hold the issues aforesaid against the plaintiff. In the result, suit fails. 38. Hence, the suit being C.S. No. 355 of 2009 is hereby dismissed on contest against the defendant, however, without any order as to costs. And in view of my findings in the foregoing paragraph, I hold the issues aforesaid against the plaintiff. In the result, suit fails. 38. Hence, the suit being C.S. No. 355 of 2009 is hereby dismissed on contest against the defendant, however, without any order as to costs. 39. Department and all parties to act on the signed copy of this judgment.