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2023 DIGILAW 1564 (CAL)

Shyam Sundar Paul v. Goutam Poddar

2023-10-19

KAUSIK CHANDA

body2023
JUDGMENT : Kausik Chanda, J. The petitioner challenges a judgment and order dated March 17, 2020, passed by the Additional District Judge, 1st Court at Siliguri, reversing an order dated May 27, 2014, passed by the learned Civil Judge (Junior Division), Siliguri in Title Suit No.147 of 2010, allowing an application under Order VII Rule 11 of the Civil Procedure Code, 1908 (‘the Code’, in short). 2. In this judgment, the parties have been referred to in terms of their status as described in the plaint. 3. The plaintiffs/opposite parties filed a suit for decree of khas possession after eviction of the defendant/petitioner from the suit premises and other consequential reliefs. In the said suit, the plaintiffs contended, inter alia, that they are the legal heirs of Dinesh Chandra Poddar, since deceased. The said Dinesh Chandra Poddar purchased a plot of land from Khitish Chandra Dey in the names of his two minor brothers, Dhiren Chandra Poddar and Radha Gobinda Poddar, and constructed a house on the said land. Dhiren and Radha Gobinda returned back to their parents in East Pakistan and started to reside there permanently. In the year 1970, during the war between Pakistan and Bangladesh, Dhiren was killed as a Mukti Jodhya, and the other brother Radha Gobinda Poddar, and the legal heirs of Dhiren became citizens of Bangladesh. Dinesh had been possessing the said suit land permanently with all its rights and interests since his purchase. The defendant came from Dhaka and requested Dinesh to permit him to reside on a portion of the vacant land measuring about 875 sq. ft. with one katcha shed against monthly rent of Rs.50/-. Dinesh used to grant receipts. The defendant failed to pay the monthly rent since February 1977 and became a defaulter. He also failed to pay maintenance charges and municipal taxes. The defendant had previously filed one suit for specific performance of the contract against Dinesh, Dhiren and Radha Gobinda alleging, inter alia, that Dhiren and Radha Gobinda had agreed to sell the suit premises to him after receiving an advance amount, which was dismissed on April 28, 2009. Dinesh died on August 23, 1997, and since then the plaintiffs have acquired the right, title, and possession over the entire property purchased by Dinesh. Dinesh died on August 23, 1997, and since then the plaintiffs have acquired the right, title, and possession over the entire property purchased by Dinesh. Being the legal heirs of the landlord, the plaintiffs are entitled to recover the possession of the land after evicting the defendant from the suit premises. The plaintiffs stated that they required the suit premises for their own occupation and business. The katcha structure was in dilapidated condition and the development of the suit premises was essential to make it habitual. 4. In connection with the said suit, the defendant filed an application under Order VII Rule 11 of the Code contending, inter alia, that the suit was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988, which was allowed by the learned Trial Judge by his order dated May 27, 2014. 5. The plaintiffs, thereafter, preferred an appeal before the Additional District Judge, 1st Court at Siliguri, who reversed the order of the Trial Court. 6. This revisional application has been filed by the defendant to assail the order dated March 17, 2020, passed by the learned Additional District Judge. 7. It has been submitted on behalf of the defendant that the interest of Dinesh in the suit property was limited one. Having purchased the suit property through a benami transaction, no title in respect of the suit property can be said to have devolved upon the plaintiffs as legal heirs of Dinesh. The plaintiffs are not the owners of the suit property. It has further been contended that neither the plaintiffs inducted the defendant as a tenant in the property nor did the defendant ever tender rent in favour of the plaintiffs. Thus, the plaintiffs are not the landlords of the defendant in view of Section 116 of the Indian Evidence Act, 1872. A tenant under Section 116 of the Indian Evidence Act, 1872, is not precluded from disputing the derivative title of a person who claims to have acquired the title from the landlord. It is only when the tenant himself deposits the rent in favour of the derivative title holder, he cannot dispute the title. 8. In the absence of a landlord-tenant relationship in the context of the West Bengal Premises Tenancy Act, 1997, the plaintiffs cannot enforce any rights against the defendant. 9. It is only when the tenant himself deposits the rent in favour of the derivative title holder, he cannot dispute the title. 8. In the absence of a landlord-tenant relationship in the context of the West Bengal Premises Tenancy Act, 1997, the plaintiffs cannot enforce any rights against the defendant. 9. It has further been contended that according to Section 4(1) of the Benami Transactions (Prohibition) Act, 1988, there is a clear prohibition against the right to recover the property held in benami. A bare perusal of paragraphs 1, 6 and 8 and the prayer of the plaint makes it clear that the suit property is hit by the law of benami transactions. 10. It has been argued that in deciding an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, the Court must only look into the averments made in the plaint and consider the documents produced with the plaint. The defence of the defendant and the documents relied upon by him cannot be looked into while deciding the application for rejection of the plaint. 11. The defendant has relied upon the following judgments in support of his submission reported at (2006) SCC OnLine Cal 116 (Team Consultants Private Limited v. Swapna Lahiri) and (2008) SCC OnLine Cal 56 (Ramesh Goel v. Dwinderpal Singh). 12. On behalf of plaintiff no.2, it has been submitted that nothing except the plaint can be considered while deciding an application under Order VII Rule 11 of the Code, and the plaint described the defendant as a tenant who defaulted in payment of rent to the landlord. It has been further contended that a tenant cannot challenge the title of the landlord and a landlord does not necessarily mean the owner. The plaintiffs’ assertion that there is no relationship of landlord-tenant, runs counter to the contents of the plaint and cannot be considered in deciding an application under Order VII Rule 11. 13. To counter the argument regarding benami transaction, it has been contended by plaintiff no.1 that in the present case, there is a claim of arrear rent and prayer for eviction of the tenant, with no claim of ownership over the property. For the last forty-six years, the defendant defaulted on the payment of rent. To grab the property, he filed a frivolous case and is still continuing his business at the premises, making a profit. For the last forty-six years, the defendant defaulted on the payment of rent. To grab the property, he filed a frivolous case and is still continuing his business at the premises, making a profit. It has been contended that as per the plaint, the property in question was purchased in the year 1947 and the prohibition of the Benami Transactions (Prohibition) Act, 1988, came forty years after that. The said purchase cannot be invalidated by a subsequent legislation. 14. On behalf of plaintiff nos.1, 3(a), and 3(b), it has been submitted that the suit has not been filed by the plaintiffs as landlords seeking a declaration of the title of the plaintiffs as owners of the suit property. It has been contended that as per Section 2(c) of the West Bengal Premises Tenancy Act, 1997, the landlord includes any person who, for the time being, is receiving, or is entitled to receive, the rent for any premises. In the present case, the plaintiffs are entitled to claim rent within the definition of landlord. The defendant himself accepted to be the tenant of the suit property when he filed a petition under Section 7(1) and 7(1)(a) of the West Bengal Premises Tenancy Act, 1997, inter alia, seeking protection against eviction as a tenant. 15. The defendant cannot claim that the suit is barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 when the defendant himself accepts his status as a tenant. It has been argued that the issue of benami transaction cannot be raised in an application under Order VII Rule 11 of the Code. It has to be decided after evidence led by the parties. In this regard, plaintiff nos.2 to 4 has relied upon the judgment of the Supreme Court reported at (2019) 4 SCC 367 (Pawan Kumar v. Babulal). 16. I do not find any grounds to interfere with the order of the Appeal Court below. 17. To deal with the issue of benami transactions, it is necessary to quote Section 4 of the unamended Benami Transactions (Prohibition) Act, 1988, which reads : “4. 16. I do not find any grounds to interfere with the order of the Appeal Court below. 17. To deal with the issue of benami transactions, it is necessary to quote Section 4 of the unamended Benami Transactions (Prohibition) Act, 1988, which reads : “4. Prohibition of the right to recover property held benami.— (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,— (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” 18. The plaint admits that the said property was purchased by Dinesh in the names of his two brothers, Dhiren and Radha. 19. Therefore, the plaint cannot be rejected at the stage under Order VII Rule 11 of the Code, as the suit is required to be heard on merit after taking evidence to determine whether the said purchase by Dinesh falls within the exceptions as envisaged under Section 4(3) of the Benami Transactions (Prohibition) Act, 1988. 20. The judgment reported at (2019) 4 SCC 367 (Pawan Kumar v. Babulal) supports the argument that the issue of benami transaction should not be resolved at this stage, but rather after evidence is led by the parties. The relevant paragraph is quoted below : “13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. The relevant paragraph is quoted below : “13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not.” 21. Moreover, to maintain a suit for eviction under the West Bengal Premises Tenancy Act, 1997, a plaintiff does not need to be the owner of the suit premises. Section 2 (c) of the West Bengal Premises Tenancy Act, 1997, defines the “landlord” to include anyone receiving or entitled to receive rent for the premises. Section 2 (c) is quoted below : “2. (c) “landlord” includes any person who, for the time being, is receiving, or is entitled to receive, the rent for any premises, whether on his own account or on account of, or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant;” 22. It bears repeating that an application under Order VII Rule 11 has to be decided on the basis of averments made in the plaint and the documents accompanying it. 23. Therefore, the determination of the ownership of the plaintiffs over the suit property will be irrelevant at this stage as the plaint case brings the plaintiffs within the definition of “landlord” as quoted above. 24. In view of the aforesaid, I have no option but to affirm the findings of the learned Appeal Court below and dismiss the present revisional application. 25. 24. In view of the aforesaid, I have no option but to affirm the findings of the learned Appeal Court below and dismiss the present revisional application. 25. Accordingly, C.O. No.33 of 2023 is dismissed. 26. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities.