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2023 DIGILAW 257 (CAL)

Sri Sri Lakshmi Thakurani v. Trishna Dey

2023-02-17

KRISHNA RAO

body2023
JUDGMENT : 1. The plaintiff has filed the instant application being GA 2 of 2020 under Chapter XIIIA of the Original Sides Rules of this Court for final Judgment against the defendant for eviction, recovery of khas possession and for mesne profit with interest. 2. As per the case of the plaintiff, Municipal Premises No. 117, B.K Pal Avenue, P.S-Jorabagan, Kolkata – 700 005 along with four storied brick built building standing thereon was originally belonged to one Sambhu Kumar Pal, who had dedicated the said property to the deity in the name of Sri Sri Lakshmi Thakurani by way of a deed of declaration dt. 29.05.1963 and accordingly the said property is called as debutter property. In the said deed of declaration, Sambhu Kumar Pal has appointed himself as a first Shebait of the said deity and it was also provided that after his demise, his wife Shanti Bala Pal and his son Shyamal Kumar Pal will succeed the office of the Shebaits. It was also provided that on the death of any one of the Shebaits, the survivor shall continue to act as sole Shebait. The settler as well as his wife has expired, Shyamal Kumar Pal has become the sole Shebait of the deity, Sri Sri Lakshmi Thakurani. 3. One Maran Krishna Pal Chowdhury was the tenant under the plaintiff in respect of a flat comprising of two rooms, one kitchen and a bath and privy admeasuring about 400 square feet situated on the back side of the ground floor of the debutter property on a monthly rent of Rs. 160/-per month. Mr. Maran Krishna Pal Chowdhury died sometimes in the year 2008 leaving behind his widow and his daughter (defendant herein) as his legal representatives. After the death of original tenant, the wife and the daughter were continuing with the possession of the said premises. In the month of January 2018, the widow of the original tenant died leaving behind the defendant herein. 4. Mr. Meghnad Dutta, Learned Advocate representing the plaintiff submits that after the death of original tenant Mr. Maran Krishna Pal Chowdhury and his widow and upon the expiry of the period of five years from the date of death of the original tenant, the defendant being the daughter has no right to occupy the said property from 2013. 5. Mr. Mr. Meghnad Dutta, Learned Advocate representing the plaintiff submits that after the death of original tenant Mr. Maran Krishna Pal Chowdhury and his widow and upon the expiry of the period of five years from the date of death of the original tenant, the defendant being the daughter has no right to occupy the said property from 2013. 5. Mr. Dutta submits that the plaintiff had never accepted any money on account of occupational charges or otherwise from the defendant at any point of time. 6. Mr. Dutta submits that as the defendant was in an illegal occupation of the premises and accordingly the plaintiff had issued a legal notice on 14.03.2019 calling upon the defendant to vacate and deliver the khas possession of the premises within 15 days from the date of receipt of the notice. In the said notice, the plaintiff has also claimed that in case the defendant failed to vacate the premises, the plaintiff shall charge mesne profits @ Rs. 7,000/-per diem till recovery of possession. 7. Mr. Dutta submits that admittedly the original tenant was the father of the defendant and the father of the defendant died in the year 2008, the mother of the defendant being the widow was entitled to continue with the possession but the widow has also died in the year 2018 and thus the defendant has no right to claim any right of tenancy over the property after the period of five years from the date of death of the father i.e. from the year 2013 and thus the defendant has became trespasser over the property and has no defence to continue with the suit thus the plaintiff is entitled to get final judgment against the defendant under Chapter XIIIA of the Original Side Rules of this Court. 8. Learned Counsel for the plaintiff relied upon the following judgments : i. 2017 SCC OnLine Cal 18807 (Sri Sushil Kumar Jain & Ors. –vs-Pilani Properties Limited). ii. 2016 SCC OnLine Cal 4442 (Utpal Roy & Anr. –vs-Ratul Krishna Banerjee & Anr.). iii. Unreported Judgment passed in CO No. 2052 of 2015 (Md. Shabbir Yousuf Chiba –vs-Arun Chorone Roquitte & Anr.) dt. 04.09.2015. 9. Per contra, Mr. –vs-Pilani Properties Limited). ii. 2016 SCC OnLine Cal 4442 (Utpal Roy & Anr. –vs-Ratul Krishna Banerjee & Anr.). iii. Unreported Judgment passed in CO No. 2052 of 2015 (Md. Shabbir Yousuf Chiba –vs-Arun Chorone Roquitte & Anr.) dt. 04.09.2015. 9. Per contra, Mr. S. R. Sadhu, Learned Advocate representing the defendant submits that the application filed by the plaintiff is not maintainable under law as the plaintiff has filed the instant suit before this Court but this Court has no jurisdiction to entertain the suit filed by the plaintiff. 10. Mr. Sadhu submits that the plaintiff has filed the instant suit by showing the high valuation of the suit property but the suit property is to be valued as per the monthly rent and the monthly rent of the suit premises is Rs. 160/-per month and the said amount is being deposited by the defendant before the rent controller till date. 11. Mr. Sadhu submits that the plaintiff has claimed mesne profit @ Rs. 7,000/-per day without any basis and the calculation made by the plaintiff only to create the jurisdiction of this Court to entertain the suit filed by the plaintiff. 12. Mr. Sadhu submits that as per Schedule IV of the West Bengal Premises Tenancy Act, 1997, this Court is having jurisdiction only if the value of the suit exceeds Rs. 10 lakhs and in case the value of the suit does not exceed Rs. 10 lakhs but exceeds Rs. 60,000/-, the City Civil Court is having jurisdiction and in any other suits to the Chief Judge of the Court of Small Causes constituted under the Presidency Small Causes Court Act, 1882. 13. Mr. Sadhu further submits that after the death of the father the defendant along with her mother continued with the possession as tenant and the mother of the defendant died in the year 2018 and thus the defendant has the right to continue with the possession for five years from the date of death of her mother. 14. Mr. Sadhu relied upon the following judgments : i. 2000 (2) CLJ 70 (Nellimarla Jute Mills Company Limited –vs-Rampuria Industries and Investment Limited). ii. AIR 1988 SC 1150 (Abdul Hamid Shammai –vs-Abdul Majid & Ors.). 15. Heard the Learned Counsel for the respective parties, perused the materials on record and the judgments relied by the parties. 16. 14. Mr. Sadhu relied upon the following judgments : i. 2000 (2) CLJ 70 (Nellimarla Jute Mills Company Limited –vs-Rampuria Industries and Investment Limited). ii. AIR 1988 SC 1150 (Abdul Hamid Shammai –vs-Abdul Majid & Ors.). 15. Heard the Learned Counsel for the respective parties, perused the materials on record and the judgments relied by the parties. 16. The defendant has raised the question with regard to the maintainability of the suit before this Court on the ground of valuation of the suit property. Schedule IV corresponding to Section 12A of the West Bengal Premises Tenancy Act, 1997 reads as follows : “SCHEDULE IV Where the premises are situated on land wholly within the ordinary original civil jurisdiction of the High Court at Calcutta,- (a) in case the value of the suit exceeds ten lakh rupees, to the High Court at Calcuta; (b) in case the value of the suit does not exceed ten lakh rupees but exceeds sixty thousand rupees, the City Civil Court established under section 3 of the City Civil Courts Act, 1953 (West Ben. Act XXI of 1953); (c) in any other suit, to the Chief Judge of the Court of Small Causes constituted under the Presidency Small Causes Courts Act, 1882 (15 of 1882), in the town of Kolkata, who may try the suit himself or may transfer the suit for trial to any other Judge of the said Court who shall try the suit as a court of first instance.” 17. The plaintiff has valued the suit at paragraph 17 of the plaint which reads as follows : 17. A sum of Rs. Rs. 11,78,000/-has become due to the plaintiff by the defendant as on the date of filing of the instant suit as per particulars below : a. Mesne profit @ Rs. Rs. 7000/-per diem From 3rd April, 2019 up to 10th August, 2019 Rs 9,03,000/- b. Compensation for damages Rs. 2,75,000/- Total Rs. 11,78,000/- 18. As per the case of the plaintiff on completion of five years from the date of death of the original defendant i.e. the father of the defendant, the defendant has become trespasser. The plaintiff is not claiming any monthly rent from the defendant. The plaintiff is claiming the mesne profit @ Rs. 2,75,000/- Total Rs. 11,78,000/- 18. As per the case of the plaintiff on completion of five years from the date of death of the original defendant i.e. the father of the defendant, the defendant has become trespasser. The plaintiff is not claiming any monthly rent from the defendant. The plaintiff is claiming the mesne profit @ Rs. 7,000/-per diem with effect from 03.04.2019 i.e. on expiry of the period of 15 days from the date of receipt of the notice by the defendant. 19. The defendant had relied upon the judgment of Nellimarla Jute Mills Company Limited (supra), and in the said case, the Hon’ble Division Bench held that “for the purpose of valuation of a suit for determination of the Court fees payable thereon, the averments made and the reliefs sought for in the plaint determines the character of the suit. Clause (v)(a) of Section 7 of the West Bengal Court Fees Act cannot, thus, be said to be applicable in this case as the same is applicable where a suit is filed against the defendant who was a trespasser from the very beginning.” It is also held that “the plaintiff who claims himself to be a former landlord has to value the suit under Clause (xiii). The theory of a “dual capacity” in the context of the provisions of the Act cannot have any application.” 20. In the present case, the plaintiff is not claiming as landlord of the defendant. It is the specific case of the plaintiff that the original tenant was the father of the defendant and after five years from the death of the father the defendant is not a tenant. During the said five years, the mother was alive and thus the defendant was never the tenant of the suit premises. 21. In the case of Md. Shabbir Yousuf Chiba (supra), the unreported Judgment relied by the plaintiff, in the said case, the Hon’ble Court had relied upon para 17 of the Judgment of Coal India Limited vs. Apeejay House Private Limited reported in AIR 2013 Cal 66 which reads as follows : “Considering the decisions cited at the Bar we are of the view, plaintiff having the carriage of proceeding was entitled to put its own valuation. Unless it was demonstrated to be ridiculous or arbitrary or unreasonable the Court would ordinarily rely on such valuation and entertain the suit if it was within its pecuniary limit on the basis of such valuation. In the present case, as per the provisions of the Court Fees Act read with the provisions of Suit Valuation Act suit for recovery of possession could be valued on the basis of annual rent that would take care of prayer (a) of the plaint, mesne profit being the consequential relief was claimed in prayer (b) that could be assessed on the basis of the deprivation of the plaintiff of its usufruct. Plaintiff in the instant case valued it at Rs. 75 per square feet. The defendant did not say, it was unreasonable, ridiculous or arbitrary. Hence, the learned Judge was right in accepting such valuation. Mr. Dutta's contention based upon the decision in the case of Smt. Chander Kali & Ors. (Supra) was possibly not correct. He relied on paragraphs 8 and 12 where definition of tenant as per the tenancy law was considered. In the present case, the tenancy law did not protect the appellants. Hence, the argument advanced by Mr. Dutta on that score would automatically fail. We gain support from our Division Bench decisions in the case of J. Thomas & Company Pvt. Ltd. (Supra), Smt. Dalia Ghosh (Supra) and Punjab & Sind Bank (Supra).” 22. The facts of the Judgment relied by the defendant is distinguishable and the Judgment relied by the plaintiff is squarely applicable in the present case and thus this Court is of the view that the plaintiff has properly valued the suit. 23. It is admitted that Mr. Maran Krishna Pal Chowdhury was the original tenant and admittedly passed away in the year 2008 leaving behind his wife and daughter. The wife expired in the month of January 2018, but the defendant being the daughter is continuing with the possession of the said premises. 24. In the case of Utpal Roy & Anr. (supra), the Division Bench of this Court held that by operation of Section 2 (g) of the said Act, the defendants who inherited the tenancy from their predecessor as tenant in common, had the right to continue their possession in the said tenancy as tenants thereof for a period of five years after the death of original tenant. (supra), the Division Bench of this Court held that by operation of Section 2 (g) of the said Act, the defendants who inherited the tenancy from their predecessor as tenant in common, had the right to continue their possession in the said tenancy as tenants thereof for a period of five years after the death of original tenant. The said five years period expired on 19.07.2006. Thus, the right to remain in possession in the suit premises by the defendant ceased with effect from 20.07.2006. However, the proviso added to Section 2(g) of the said Act gives some additional protection to the wife of the tenant who was ordinarily living with the tenant upto his death as a member of his family and was depending on him and who does not her own or occupy any residential premises to continue her possession in the said tenancy even beyond the time limit of five years has contemplated in the main provision of Section 2(g). 25. In the present case, after the death of original tenant in the year 2008, the wife along with the defendant being the daughter continued with the said premises and the wife died sometimes in the month of January 2018 and thus in terms of Section 2(g), the defendant cannot continued in the said premises above five years from the death of the original tenant as the tenancy is not heritable by her. 26. In view of the above, this Court is of the view that the plaintiff is entitled to get decree in terms of prayer (a) of the Master’s Summon. Decree be drawn accordingly. 27. As regard the entitlement of mesne profit, an enquiry is to be conducted by appointing a Special Officer. Accordingly, Mr. Rishad Medora is appointed as Special Officer to ascertain the mesne profit. The remuneration of the Special Officer is fixed at Rs. 4,00,000/-and at first the plaintiff shall pay the remuneration to the Special Officer and the plaintiff is entitled to recover the same from the defendant. 28. The Special Officer is directed to submit the report before this Court within three months from the date of the receipt of this order. 29. GA 2 of 2020 is disposed of.