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2018 DIGILAW 529 (CAL)

Gyanendra Singh Bayed v. Anjali Majumder

2018-07-31

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : Sabyasachi Bhattacharyya, J. The present application under Article 227 of the Constitution of India has been preferred by the defendant tenant against an order passed by the Trial Court under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. In the said application, a dispute as to the landlordtenant relationship between the parties was raised by the defendant/petitioner. The Trial Court came to the conclusion that the defendant did not come within the purview of the definition of tenant under Section 2(g) of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as “the 1997 Act”). On such observation, the said application under Section 7(2) was rejected on contest, which has been challenged in the present revision. 2. Learned counsel for the defendant/petitioner argues that the plaintiff admitted, in paragraph no. 3 of the plaint, that the present defendant became a tenant under the plaintiffs upon the death of his father, for a period of five years. Such death apparently took place in the year 2009, that is, about four years after the death of the original tenant Parab Kumari Boyed, the mother of the defendant. It is argued that since the plaintiffs themselves admitted in paragraph no. 3 of the plaint that the defendant became a tenant on the death of his father, it could not be concluded by the Trial Court that the defendant lost his tenancy right after the expiry of five years from the death of his mother. 3. It was further argued that the Trial Court did not adjudicate at all the dispute as to whether all the brothers of the defendant became co-tenants on the death of his father. Once it was admitted that the defendant and his father became joint tenants on the demise of Parab Kumari, the allegation of joint tenancy of the other sons of Parab Kumari ought to have been considered by the Court below, in view of such question having been raised by the present petitioner. 4. In controverting such arguments, it is submitted on behalf of the opposite parties that the petitioner is culling out only a portion of the plaint pleadings and the plaint ought to have been read as a whole. 4. In controverting such arguments, it is submitted on behalf of the opposite parties that the petitioner is culling out only a portion of the plaint pleadings and the plaint ought to have been read as a whole. Such a comprehensive reading would reveal that it has been categorically averred by the plaintiffs that the tenancy of the petitioner expired upon five years having elapsed after the death of Parab Kumari on June 16, 2005. It is also argued that in the event the tenancy of the present petitioner expired after such five years’ period, by the same logic the tenancy, if any, of the other sons of Parab Kumari would also be extinguished on the expiry of such period. As such, it is argued on behalf of the opposite parties, the impugned order was justified and ought not to be interfered with. 5. Upon hearing the submissions of both sides, certain dates appear to be relevant for disposal of the instant matter. Those are as follows: I July 10, 2002 The West Bengal Premises Tenancy Act, 1997 came into force. II June 16, 2005 The original tenant, namely, Parab Kumari Boyed died, leaving behind her husband and four sons (including the defendant/petitioner). III 2009 Husband of Parab Kumari died, leaving behind his four sons. IV June 15, 2010 Five years’ period, after death of Parab Kumari, expired. V August 5, 2010 Ejectment Suit No. 79 of 2010 filed. 6. II June 16, 2005 The original tenant, namely, Parab Kumari Boyed died, leaving behind her husband and four sons (including the defendant/petitioner). III 2009 Husband of Parab Kumari died, leaving behind his four sons. IV June 15, 2010 Five years’ period, after death of Parab Kumari, expired. V August 5, 2010 Ejectment Suit No. 79 of 2010 filed. 6. It would also be relevant to quote Section 2(g) of the 1997 Act, in this context: “Section 2(g): "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction: Provided that the time-limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependant on him and who does not own or occupy any residential premises: Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependant on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises on condition of payment of fair rent. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose.” 7. It is seen from the averment made in the plaint that the consistent case of the plaintiffs/opposite parties has been that the husband of Parab Kumari and her son, the present defendant, became tenants upon the death of Parab Kumari (the original tenant) on June 16, 2005. Upon the expiry of five years from such date, that is, on and from June 16, 2010, the defendant lost his right to occupy the suit property as a tenant. Such a stand is reflected from paragraph nos. 2, 4 and 5 of the plaint. 8. The only departure from such stand is a stray pleading in paragraph no. 3 of the plaint as to the defendant becoming a tenant under the plaintiffs for a limited period of five years after the death of the defendant’s father. It is obvious that such stray comment was inconsistent with the tenor of the plaint, read as a whole, and could at best be an admission against the law, which cannot be binding on the plaintiffs. In the absence of any other specific pleading as to creation of fresh tenancy in favour of the defendant/petitioner, the facts as alleged in the plaint unerringly indicate that the defendant’s tenancy extinguished on and from June 16, 2010, that is, upon expiry of five years period from death of the original tenant Parab Kumari on June 16, 2005. 9. Since the plaintiffs categorically stated in their plaint that the defendant was staying with his mother at the juncture of death of his mother, it is evident that the plaintiffs do not admit the other sons of Parab Kumari, if any, to be tenants in respect of the suit property. In the absence of contrary evidence, as to such other sons having resided with Parab Kumari at the point of time when she died, the Trial Court was justified in concluding that only the petitioner and his father had became tenants on the death of Parab Kumari in respect of the suit premises. 10. As a necessary corollary, within the contemplation of Section 2(g) of the 1997 Act, the tenancy of the defendant was extinguished upon the expiry of five years from the death of Parab Kumari, that is, on and from June 16, 2010. 10. As a necessary corollary, within the contemplation of Section 2(g) of the 1997 Act, the tenancy of the defendant was extinguished upon the expiry of five years from the death of Parab Kumari, that is, on and from June 16, 2010. The father of the defendant died prior to that, as such erasing out the question of extension of the father’s tenancy. Hence, upon a consideration of the entire materials on record, it is found that the Trial Court was justified and acted within its jurisdiction to arrive at a finding that the defendant/petitioner’s tenancy extinguished upon expiry of five years from the death of Parab Kumari, and consequentially dismissed the application filed by the defendant/petitioner under Section 7 (2) of the 1997 Act. Hence, the impugned order does not deserve to be interfered with under Article 227 of the Constitution of India. 11. Accordingly, C.O. No. 1850 of 2017 is dismissed on contest, without any order as to costs.