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2017 DIGILAW 57 (CAL)

Rabin Kanrar v. Subrata Dhara

2017-01-10

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. Let the certified copy of the judgment and decree, filed by the learned advocate appearing for the appellant be kept with the record. 2. This Second Appeal is directed against the judgment and decree dated 14th September, 2016 passed by the learned District Judge, Howrah, in Title Appeal No. 134 of 2015 affirming the judgment and decree dated 29th July, 2015 passed by the learned Civil Judge, 3rd Court at Howrah, in Title Suit No. 190 of 2012 at the instance of the defendant/ appellant. 3. 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. 4. Here is the case where we find that an eviction suit was filed by the plaintiffs/ respondents against the defendant/appellant by treating him as licensee and on revocation of his licence. 5. It is alleged by the plaintiffs that the predecessor-in-interest of the plaintiffs became the owner of the suit property by way of purchase from the erstwhile owner thereof. It is alleged that the predecessor-in-interest of the plaintiffs inducted the father of the defendant as a licensee in the suit property without licence fees. After the death of the predecessor-in- interest of the plaintiffs, the plaintiffs became the owners of the suit property. They granted licence in favour of the defendant being the legal representative of the original licensee in respect of the suit property without any licence fees. Subsequently, licence which was granted in favour of the defendant was revoked by service of notice. Since the defendant failed to vacate the suit premises even after revocation of his licence, the instant suit was filed. 6. The defendant contested the said suit by filing written statement. He denied the plaintiffs' claim of grant of licence, either in favour of his predecessor or in his favour. He claimed that he was inducted as a tenant in respect of the suit property, comprising of two rooms at a monthly rental of Rs.5/- per month. He, thus, prayed for dismissal of the said suit as the plaintiffs have not filed any eviction suit by following the provisions contained in the West Bengal Premises Tenancy Act. 7. Parties led evidence in support of their respective claims. 8. He, thus, prayed for dismissal of the said suit as the plaintiffs have not filed any eviction suit by following the provisions contained in the West Bengal Premises Tenancy Act. 7. Parties led evidence in support of their respective claims. 8. The learned Trial Court after considering the pleadings of the parties as well as their evidence, came to conclusion that the defendant was inducted as a licensee in respect of the suit premises by the plaintiffs and since after revocation of the said licence, the defendant failed to vacate the suit premises, decree for eviction was passed by the learned Trial Judge against the defendant/appellant. The defendant's claim of his tenancy in respect of the suit premises was disbelieved by the learned Trial Court. 9. Challenging the said judgment and decree of the learned Trial Court, the defendant preferred an appeal before the learned First Appellate Court. The said appeal was dismissed by affirming the findings of the learned Trial Judge. The learned First Appellate Court also held that the defendant has failed to prove his plea of tenancy in respect of the suit property. No rent receipt could be produced by the defendant in support of his claim for tenancy. No agreement of tenancy also could be produced by the defendant to establish his claim for tenancy. In this context, the learned Trial Judge relying upon a decision of this Hon'ble Court, in the case of Tarunmani Mondal & Others vs. Prafulla Kumar Mondal, reported in 2006 (3) CHN 1 held that even if the actual induction of licensee is not proved, but the moment when the plaintiff establishes his absolute title in the property and the defendant fails to establish his title in the property, the plaintiff is entitled to get a decree for eviction as a matter of course simply on the basis of his title. 10. We fully concur with such views of the learned First Appellate Court. A person can occupy a premises in various capacities, such as: (i) owner, (ii) tenant, (iii) licensee and (iv) by adverse possession. 11. Here in the present case, the defendant/appellant has not claimed title over the suit property either on the basis of acquisition title from the erstwhile owner or by way of adverse possession. He claimed tenancy right. Tenancy is a matter of contract. 11. Here in the present case, the defendant/appellant has not claimed title over the suit property either on the basis of acquisition title from the erstwhile owner or by way of adverse possession. He claimed tenancy right. Tenancy is a matter of contract. Jural relationship of landlord and tenant can be established either by contract or by grant of receipt on acceptance of rent by the landlord from the tenant. 12. In the present case, neither an agreement for tenancy is forthcoming before the Court, nor any rent receipt is forthcoming before the Court. As such, the defendants' claim of tenancy cannot be believed. Thus, the only capacity in which the defendant can possess the suit premises is that of a licensee. 13. In the present case, we have found that his licence has been duly revoked by service of notice. Even then, the defendant failed to vacate the suit premises on expiry of the notice period. Hence, we hold that the courts below did not commit any illegality either in passing a decree of eviction against the defendant or by dismissing the appeal by the appellate forum by affirming the findings of the learned Trial Court in the light of the decision of this Hon'ble Court in the case of Tarunmani Mondal vs. Prafulla Kumar Mondal (supra). 14. We thus, do not find involvement of any substantial question of law in this appeal. We decline to admit the appeal. The appeal, thus, stands dismissed. 15. After the judgment is pronounced by this Court, Mr. Mitra, learned advocate, appearing for the appellant prays for a month's time for vacating the suit premises. 16. On such prayer being made, we stay the execution of the decree of eviction unconditionally for a period of two weeks and if in the mean time, the defendant/appellant submits an undertaking before the learned executing court stating therein that during the period of his stay, he will not create any third party interest and/or will not cause any damage to the suit premises and will vacate the suit premises by giving up and/or delivering the vacant and peaceful possession thereof to the plaintiff/respondent by 15th January, 2017; the further proceeding of the executing case will remain stayed till 15th February, 2017. 17. 17. It is, thus, clarified that in the event the condition as imposed hereinabove, has not been fulfilled or in the event the defendant/appellant fails to vacate the suit premises by 15th February, 2017; the learned executing court will grant police help for evicting the defendant from the suit premises so that peaceful khas possession thereof can be delivered to the plaintiff/respondent without entertaining any further application from the defendant/ appellant. 18. The appeal and the application both are disposed of.