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2019 DIGILAW 805 (CAL)

Haripada Das v. Ashok Das

2019-08-14

BIBEK CHAUDHURI

body2019
JUDGMENT : Bibek Chaudhuri, J. The defendants of a suit for eviction of licensee of recovery of khas possession of the suit premises are the appellants before this Court assailing the judgment and decree passed in Title Appeal No.96 of 2008 by the Learned Civil Judge (Senior Division), First Court at Howrah. 2. The respondent filed Title Suit No.39 of 2003 for eviction of the appellants and recovery of khas possession of the suit premises stating, inter alia, that the appellant No.1 approached the maternal grandmother of the respondent sometimes in 1983 to allow him along with his family members to stay in the suit premises for a limited period as licensees without any licence fee. The maternal grandmother of the respondent and the parents of the respondents permitted the appellants to stay as licensees in respect of two rooms with a kitchen on the ground floor of premises No.82/7/1, Nara Singha Dutta Road, P.S. Batra within the District of Howrah. Subsequently the respondents became the absolute owner in respect of the suit premises by virtue of four separates deeds of gift executed by the erstwhile owners. The respondent no. 1 requested the appellants to quit, vacate and deliver peaceful possession of the suit premises in his favour but they refused to vacate the same. On the contrary, they illegally obtained electric connection in the suit premises without permission of the respondent. Finally, respondent no. 1 requested the appellants by a notice dated 1st January, 2003 to quit, vacate and deliver unto him vacant possession of the suit premises by 1st February, 2003. Subsequently on 14th February, 2003, the respondent sent another notice to the appellants through his authorized agent and advocate requiring the appellants to vacate the suit premises. In spite of receipt of the said notice, the appellants failed to vacate and deliver peaceful possession in favour of the respondent. So the respondent as plaintiff instituted tile suit No.39 of 2003 praying for eviction of the appellants in the 7th Court of the Learned Civil Judge (Junior Division) at Howrah. 3. The defendants/appellants contested the suit by filing written statement wherein they denied all material allegations made out by the plaintiff/respondent against them. Specific case of the defendants/appellants is that the appellant No.1 is monthly tenant one Shankari Das and others in respect of the suit premises at a rental of Rs.70 payable according to English Calendar Month. 3. The defendants/appellants contested the suit by filing written statement wherein they denied all material allegations made out by the plaintiff/respondent against them. Specific case of the defendants/appellants is that the appellant No.1 is monthly tenant one Shankari Das and others in respect of the suit premises at a rental of Rs.70 payable according to English Calendar Month. Since the landlords refused to accept rent from the defendant/appellant No.1, he was depositing rent in the office of the Rent Controller. It is further pleaded by the defendants/appellants that the said Shankari Das, one of the erstwhile owners of the suit premises accepted appellant No.1 as a tenant in respect of the suit premises by notice dated 21st November, 1995 and claimed proportionate rent from him. Since the appellant No.1 claimed himself to be a tenant in respect of the suit premises under the predecessor-in-interest of the present respondent, he is not liable to be evicted. 4. The Learned Trial Judge dismissed the suit on contest holding, inter alia, that the appellant No.1 is a monthly tenant governed under the West Bengal premises tenancy Act 1956. 5. The present respondent, being aggrieved by a dissatisfied with the judgment and decree of dismissal of title suit No. 39 of 2003, preferred an appeal which was registered as Title Appeal No.96 of 2008. The said appeal came up for hearing before the Learned Civil Judge (Senior Division), First Court at Howrah on 19th December, 2011. The Learned Judge in first appellate Court allowed the said appeal, reversed the judgment and decree of dismissal of title suit No.39 of 2003 and consequently passed a decree for eviction against the appellants. 6. The instant second appeal filed by the defendants of the original suit was admitted for hearing by a Division Bench of this Court on the following substantial question of law:- "(1) Whether or not the learned Lower Appellate Court was right in laying undue emphasis on the fact that the parties are related to each other while deciding the question as to whether or not the appellants are licencees or tenants in the suit property and by holding that when there is close relations between the parties, then there is every possibility of granting licence instead of granting tenancy. (2) Whether or not the learned Lower Appellate Court was right in deciding the question as to whether the defendants were licencees or tenants mainly on the ground that the parties were related to each other without properly considering the other materials on record in its proper perspective." 7. Mr. Budhadev Ghosal Learned Advocate for the appellants at the outset submits that one Dulal Chandra Das was the original owner of the suit premises. After the death of said Dulal Chandra Das, his widow Bharati bala Das and three daughters, namely, Smt. Dola Das and Smt. Shankari Das and Smt. Tara Das inherited the said property in equal 1/4 shares. There is also no dispute that the respondent is the son of Smt. Dola Das, eldest daughter of Dulal Chandra Das and Bharati bala Das. 8. The respondent became the owner of the suit premises by virtue of separate deeds of gifts executed by Bharati bala and her three daughters on 10th April, 1992, 12th November, 1998 and 11th November, 1998 respectively. It is further submitted by Mr. Ghosal that the plaintiff claimed that the appellant No.1 was allegedly inducted as a licensee in respect of the suit premises some times in the month of November, 1983 on condition that he would vacate the suit premises after few months. But the appellant No.1 did not vacate the suit premises. It is found from the record that Bharati bala Das and other co-sharers transferred the suit premises in favour of the plaintiff/respondent. Admittedly, the respondent was a minor when the appellant No.1 was inducted in the suit premises. It is ascertained from the evidence of the plaintiff/respondent who deposed as PW 1 during trial of the suit that he was not present at the time induction of the defendant/appellant No.1 in the suit premises by Bharati bala Das. So he does not know about the terms and conditions in respect of induction of appellant No.1 in the suit premises. 9. Consequently, it is argued by Mr. Ghosal that the alleged license granted in favour of the appellant No.1 by Bharati bala Dask came to an end after she ceased to be one of the owners of the suit premises on her transfer of her share by a deed of gift in favour of the respondent. 9. Consequently, it is argued by Mr. Ghosal that the alleged license granted in favour of the appellant No.1 by Bharati bala Dask came to an end after she ceased to be one of the owners of the suit premises on her transfer of her share by a deed of gift in favour of the respondent. Therefore, the alleged license granted in favour of appellant No.1 by Bharati bala Das came to an end on an from the date of transfer of her share in the suit premises in favour of the respondent. There is no evidence whatsoever that the plaintiff/respondent granted fresh license or renewed the license which was granted to the appellant No.1 by Bharari bala Das. Therefore, there is no relationship between the plaintiff and the appellants as that of licensor and licensees. So, the suit instituted by the appellant was not maintainable. The learned Judge in first appellate Court committed substantial error in law by decreeing the suit in favour of the respondent when he had no relationship with the appellants and there is no evidence on record that he renewed the license in favour of appellant No.1. 10. Next, he draws my attention to Exhibit - A which is a notice addressed to the appellant No.1 dated 24th June, 1998. The said notice was issued on behalf of the respondent by his Advocate. In the said notice, it was admitted on behalf of the respondent that suit premises No.82/7/1 MD Road was partitioned amongst the co-sharers and Smt. Sankari Das and Smt. Tara Das became the absolute owners of the suit premises. Next, he refers to exhibit B which is another notice that dated 21st November, 1995 issued by one Smt. Arati Ghosh Advocate under the instructions of Smt. Sankori Das claiming, inter alia, that the appellant No.1 was a tenant in respect of the suit premises under her. It is also claimed that the respondent used to collect rent from him on behalf of the said Smt. Sankari Das, but did not issue any rent receipt to respondent No. 1. According to Mr. Ghosal, the respondent by giving an advocate's notice admitted that Smt. Sankari Das was one of the owners of the suit premises and by subsequent notice dated 21st November, 1995, Sankari Das claimed rent from appellant No.1. According to Mr. Ghosal, the respondent by giving an advocate's notice admitted that Smt. Sankari Das was one of the owners of the suit premises and by subsequent notice dated 21st November, 1995, Sankari Das claimed rent from appellant No.1. Exhibit B clearly suggests that the appellant No.1 was a tenant in respect of the suit premises under Smt. Sankari Das. He was not a licensee as alleged. The Learned Judge in first appellate Court failed to appreciate probative value of Exhibit A and Exhibit B and wrongly held that the appellant No.1 was a licensee. 11. Relying on a decision of this Court in the case of Mohammed Seraj versus Abidar Rahaman Sheikh and others, 1968 AIR(Cal) 550, it is submitted by Mr. Ghosal that Exhibit B is in the nature of an admission made by the erstwhile owner namely, Smt. Sankari Das assailing the status of the appellant No. 1 as that of a tenant of the suit premises. Such admission is a strong evidence unless rebutted not only against the maker but also against his Successor-in-interest whom it binds. Mr. Ghosal specifically relies upon the following observation of this Court in the case of Mohammed Seraj (supra): "In sum, suits may come and go, withdrawn with or without liberty to sue afresh, dismissed or decreed, - no matter which, - but statements made therein, - no matter where, in pleadings, petitions, affidavits, of evidence remain forever and for all purposes too, allowed by lay, such as to be proceeded with as admissions. When they are found to be such, so long as they are not rebutted, (section 17 Evidence Act), or to be confronted with under S. 145 ibid. Otherwise the court, no less the party interested, will be deprived of very valuable evidence, nothing to say of a premium being put on reckless allegations with no apprehension of the makers thereof coming to grief in future for such glibness." 12. Mr. Pinaki Ranjan Mitra, learned counsel for the respondent, on the other hand submits that it is the specific case of the plaintiff/respondent that the appellant No. 1 was inducted in respect of the suit premises as a licensee in the year 1982 by Bharati bala Das, one of the co-sharers of the suit premises. The said fact was admitted by the appellant in his evidence as DW 1. The said fact was admitted by the appellant in his evidence as DW 1. However, the appellant in course of his evidence denied the case of the plaintiff that he was inducted by Bharati bala Das. It is also denied that Bharati bala Das permitted him to stay in the suit premises temporarily as a licensee. According to Mr. Mitra, the appellant never disputed ownership of the respondent over the suit premises, rather in his cross-examination, he admitted the ownership of the respondent. The dispute remains as to the nature of possession of the appellant in the suit premises. Wherever pleadings and documents established title to a particular property and possession-in-question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. The person averring a right to continue in possession shall, as far as possible, given a detailed particularized specific pleading along with documents to support his claim and details of subsequent contract which establish his possession. 13. With this introduction, it is urged by Mr. Mitra that the appellant could not produce any rent receipt issued by Bharati bala or Sankari or the present respondent. He has further pointed out that the appellant claimed himself to be a tenant under Smt. Sankari Das and other cosharers in respect of the suit premises. Smt. Sankari Das deposed during trial of the suit and stated on oath that she never inducted the appellant No. 1 as a tenant in respect of the suit premises. According to Mr. Mitra, tenancy right cannot be created by a purported letter of attornment (Exhibit B) allegedly issued by Smt. Arati Bose, advocate under the instruction of Smt. Sankari Das. Mr. Mitra next draws my attention to Exhibit B. Exhibit B is a letter written by Smt. Arati Bose, advocate under the instruction of Sankari Das, one of the co-sharers of Premises No. 82/7/1, Narasingha Dutta Road. The said letter was addressed to five persons including appellant on 21st November, 1995. In the said letter, demand was made on behalf of Sankari Das to pay 1/4th share of the rent. The said letter was addressed to five persons including appellant on 21st November, 1995. In the said letter, demand was made on behalf of Sankari Das to pay 1/4th share of the rent. According to the defendant/appellant, he is a tenant in respect of the suit premises at a monthly rental of Rs.70/- (Rupees seventy) only if at all the said letter (Exhibit B) was given effect to by the defendant/appellant, he was under obligation to pay Rs.17.50/- (Rupees seventeen and fifty paisa only) being 1/4th share Rs.70/- (Rupees seventy only) to Smt. Sankari Das. The defendant/appellant could not produce any document to show that he actually tendered proportionate share of rent to Smt. Sankari Das after receipt of the letter dated 21st November, 1995 (Exhibit B). 14. The appellant No. 1 pleaded that he all along paid rent to Ashok Das who used to collect rent but never issued any rent receipt to him. Surprisingly enough, the appellant did not take any step under Section 25 of the West Bengal Premises Tenancy Act, claiming rent receipt from Ashok Das or any other co-sharers of the suit premises. He also reminds me that the learned advocate for the appellant at the very beginning of the argument stated that Ashok Das, the respondent herein was a minor at the time of induction of appellant No. 1. As a minor, Ashok Das was not competent to any contract of tenancy with the appellant. He was not also the owner of the suit premises in the year 1982 when the defendant was inducted. Therefore, there was no privity of contract between the respondent and the appellant No. 1 as landlord and tenant and Ashok Das was not entitled to receive any rent from the appellant No. 1. 15. It is vehemently argued by Mr. Mitra that the appellant No. 1 claimed himself to be a tenant in respect of the suit premises. Therefore, burden is upon the defendant to prove his tenancy in the suit premises. Such right of tenancy was not created by Exhibit B which was issued on 21st November, 1995, especially when it is the specific case of the appellant No. 1 that he was inducted in the year 1982. The appellant failed to prove his induction in the suit premises as a tenant. Such right of tenancy was not created by Exhibit B which was issued on 21st November, 1995, especially when it is the specific case of the appellant No. 1 that he was inducted in the year 1982. The appellant failed to prove his induction in the suit premises as a tenant. In other words, existence of privity of contract between the appellant and the erstwhile owners of the suit premises was not proved by any sort of evidence whatsoever. Under such circumstances, it is urged by Mr. Mitra, the learned Judge in first Appellate Court was perfectly right in holding that the appellant was a licensee and liable to be evicted on revocation of license. 16. Mr. Mitra next refers to a decision of the Division Bench of this Court in the case of Tarumoni Mondal & Ors. versus Prafulla Kumar Mondal & Ors., 2006 3 CalHN 1 (Cal). Following observation in the said decision is relevant for the purpose of this case:- "It is now well-settled law that even if the actual induction as licensee is not proved, the moment the plaintiff establishes absolute title to 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." 17. In the instant case, the respondent has been able to prove his title. The appellant No. 1 could not establish his right of tenancy over the suit premises. Therefore, decree for eviction against the appellant No. 1 is automatic. 18. Referring to another decision of this Court in the case of Mrs. Juthika Basu & Ors. versus Lt. Col. A.N. Sharma, 1992 1 CalLJ 174 , it is submitted by Mr. Mitra that to establish tenancy, tenant has first to prove the induction of the tenancy and the terms and conditions of such tenancy. Secondly, in order to establish a case of tenancy, there must be a privity of contract between the landlord and the tenant and that according to the definition of the landlord, any person who is entitled to receive rent whether or not on his own account can be treated to a landlord. There is no evidence on record that Ashok Das was entrusted by the erstwhile owners to collect rent from the appellant No. 1. There is no evidence on record that Ashok Das was entrusted by the erstwhile owners to collect rent from the appellant No. 1. Entitlement of Ashok Das to collect rent was not proved by satisfactory evidence by the appellant. Any person collecting rent from a person in possession of a premises cannot be said to be 'entitled' to collect rent. Though the appellant No. 1 could not produce even a scrap of paper showing payment of rent to Ashok Das, his claim as regards tenancy will also fail on the ground that the appellant never paid or even tendered rent to his landlord. Absence of such evidence sufficiently proves that the appellant was not a tenant in respect of the suit premises. 19. Mr. Mitra concludes his argument submitting, inter alia, that an admission is, of course, a good piece of evidence unless rebutted. Smt. Sankari Das deposed in favour of the plaintiff as PW 2 during trial of the suit. She was confronted with Exhibit B. She stated on oath that she never instructed any advocate to issue a notice to the appellant claiming proportionate share of rent. Thus, the said Sankari Das denied that she claimed proportionate rent from the appellant claiming him to be a tenant under her. In view of such evidence of Sankari Das, Exhibit B cannot be held to be an admission on behalf of her because she rebutted issuance of Exhibit B in favour of the appellant No. 1. Exhibit B cannot be used an admission against Sankari Das or against the present respondent. In support of his contention, Mr. Mitra relies upon the decision of this Court in the case of Sanghamitra Lodh versus Mohammad Maubal Khan, 2014 5 CalHN 309.(CAL) 20. While making a distinction between contractual tenant and statutory tenant, the Hon'ble Supreme Court in Kumar Jagdish Chandra Sinha and Ors. vs. Eileen K. Patricia D Rozarie (Mrs), 1995 1 SCC 164 was pleased to observe that a contractual tenant has an estate or interest in the subject matter of the tenancy and the heritability is an instance of such tenancy. In case of license, on the other hand, legal possession continues to be with the owner of the property but the licensee is permitted to make used of the premises for a limited period of time. He is liable to be evicted immediately on revocation of license. In case of license, on the other hand, legal possession continues to be with the owner of the property but the licensee is permitted to make used of the premises for a limited period of time. He is liable to be evicted immediately on revocation of license. Section 2(d) of the West Bengal Premises Tenancy Act, 1956 defines the term 'landlord' in the following words:- "Landlord includes any person who, for the time being is entitled to receive rent but for a special contract would be entitled to receive, the rent of any premises whether or not on his own account." 21. Plain reading of the above definition suggests that 'landlord' was given an inclusive definition. Apart from the person with whom contract of tenancy is created, the term 'landlord' includes a person as well who is entitled to receive rent on his own account or on behalf of the other. Therefore, the definition of 'landlord' in 1956 Act is equated with entitlement of receiving rent. According to Black Law Dictionary the word 'entitle' has been defined as follows:- 22. "In its usual sense to be entitled is to give a right or legal title to." Therefore, a person having a legal title who is entitled to collect rent is a landlord and secondly a person, though, not having a legal title over the demise premises but is entitled to collect rent from the tenancy by virtue of special contract can also be termed as landlord. 23. In the instant case, the appellant in his written statement pleaded that he was a monthly premises tenant under Sankari Das and others. However, he could not produce even a single rent receipt issued by Sankari Das or others after his alleged induction till the date of institution of the suit. The appellant did not take any steps under Section 25 of the West Bengal Premises Tenancy Act for receiving rent receipt from the landlord. Payment of rent is the most important instance of tenancy to claim possessory right over the suit premises until the same is determined by a statutory notice. It is already observed that no scrap of paper was filed by the appellant to prove that he actually paid rent to the original landlord or any person entitled to collect rent. 24. Payment of rent is the most important instance of tenancy to claim possessory right over the suit premises until the same is determined by a statutory notice. It is already observed that no scrap of paper was filed by the appellant to prove that he actually paid rent to the original landlord or any person entitled to collect rent. 24. Under the factual backdrop stated above, let me now consider the privity value of Exhibit B. Even assuming that Exhibit B was issued by an advocate under the instruction of Sankari Das, from the contents of Exhibit B, it is found that the appellant was not inducted by Sankari Das. She claimed proportionate share of rent from the appellant on the ground that she was one of the co-sharers in respect of the suit premises. Therefore, appellant was not inducted by Sankari Das. There is no evidence from the side of the appellant whatsoever regarding the payment of rent to the inducting landlord or his/her representative who was entitled to collect rent by the appellant. Mr. Mitra rightly pointed out that even if the contents of Exhibit B is treated to be correct for the sake of argument, Sankari Das was entitled to a sum of Rs.17.50/- (Rupees seventeen and fifty paisa only) per month. However, the appellant started depositing rent in the Office of the Rent Controller in only in the name of Sankari Das from the month of April, 1997, i.e. after a lapse of about one year and five months from the date of issuance of Exhibit B. It is important to note that rent was not deposited by the appellant after observing the formalities contained in Section 21 of the West Bengal Premises Tenancy Act. According to Section 21 of the West Bengal Premises Tenancy Act, the tenant is under obligation first to tender rent by hand to the landlord. On his/her refusal, the rent may be deposited to the Office of the Rent Controller. There is absolutely no evidence that the erstwhile owners or the present respondent ever demanded any rent or that he tendered rent to any of them and they refused to accept such rent. Therefore, depositing rent in the Office of the Rent Controller without due compliance of Section 21 does not create right of tenancy in favour of the appellant. 25. Therefore, depositing rent in the Office of the Rent Controller without due compliance of Section 21 does not create right of tenancy in favour of the appellant. 25. For the reasons stated above, I am of the considered view that Exhibit B does not create any tenancy right in favour of the appellant. It also cannot be construed as an admission on behalf of the erstwhile owners who automatically binds the respondent. 26. Since the appellant fails to prove his right of tenancy and title of the respondent is proved, the appellant is liable to be evicted. Even if the argument made by Mr. Ghosal is accepted that the respondent did not grant any license in favour of the appellant or that the previous license was not renewed by the respondent, then also status of the appellant in respect of the suit premises is reduced to that of a trespasser. 27. Substantial questions of law are accordingly decided. 28. In view of the above discussions, I do not find any merit in the instant appeal and the same is liable to be dismissed on contest without costs. 29. Accordingly, the appeal is dismissed on contest without any costs. Lower Court Records (LCR) be sent down to the Courts below forthwith. 30. Urgent Photostat certified copy of this judgment be given to the parties, if applied for, upon compliance with requisite formalities.