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2024 DIGILAW 1359 (CAL)

Asha Bansal v. Sunita Tandon

2024-07-31

KRISHNA RAO

body2024
JUDGMENT : Krishna Rao, J. 1. The plaintiffs have filed the present suit for a decree for eviction and recovery of khas possession of the suit property, mesne profit of Rs.18,40,000/-, further mesne profit till the delivery of possession and interest. 2. The plaintiffs have filed the present application for Judgment upon admission against the defendant for eviction and recovery of khas possession of the suit property. 3. The plaintiffs are the joint and absolute owners of the Premises No. 318, Chittaranjan Avenue, Kolkata – 700006, being a ground plus five storied building. 4. The one Bimla Devi Tandon, was the tenant of the plaintiffs, in respect of a flat comprising of four rooms with verandah admeasuring an area of about 600 sq.ft. situated on the fifth floor of the said premises and the last agreed rent which was being paid by the defendant was Rs.2,590/-inclusive of Municipal Property Tax and maintenance charges payable according to English Calendar month. The said tenancy was governed under the provisions of the West Bengal Premises Tenancy Act, 1997. 5. The rent was being tendered in respect of the suit property and monthly receipts were duly being obtained in the name of the tenant, i.e. Bimla Devi Tandon. The last receipt of rent for the said property was on 17th August, 2021, for the month of July, 2021. 6. In the month of September, 2021, the plaintiffs came to know that the original tenant, namely, Mrs. Bimla Devi Tandon, has died long back in the year 2015, leaving behind her son, namely, Ashok Kumar Tandon as her only legal heir and representative and the husband of Bimla Devi Tandon has also expired. 7. Since the death of original tenant i.e. Bimla Devi Tandon, her son Ashok Kumar Tandon and his wife were ordinarily residing in the said tenanted premises. Ashok Kumar Tandon, has also died in the year of 2020 and left behind his widow, the defendant herein. 8. The plaintiffs have sent a notice to the defendant, on 24th March, 2022, by its Learned Advocate and called upon the defendant to hand over peaceful and vacant possession of the suit property within 15 days from the date of receipt of the notice. The defendant had duly received the said notice on 26th March, 2022 but inspite of receipt of such notice, the defendant has not vacated the premises. 9. The defendant had duly received the said notice on 26th March, 2022 but inspite of receipt of such notice, the defendant has not vacated the premises. 9. The plaintiffs say that the death of Bimla Devi Tandon and her son Ashok Kumar Tandon were deliberately supressed and concealed by the defendant and the defendant is in wrongful occupation of the property as trespasser and has no right over the suit property. 10. The plaintiffs submit that after receipt of notice, the defendant has filed a suit before the Learned City Civil Court at Calcutta, being Title Suit No. 1352 of 2022 against the plaintiffs praying for a decree of declaration, declaring the defendant as rightful tenant over the suit property and allied prayers. 11. The plaintiffs submit that by filing the title suit, the defendant has made certain clear, unequivocal and unambiguous admission in the said plaint, which reads as follows : (a) The defendant is still in possession of the suit property. (b) Original and only tenant of the suit premises was the present defendant’s mother-in-law, and the rent receipt is in her name. (c) Rent receipt was never in name of the defendant’s husband’s name. (d) Rent receipt was never in the defendant’s name. (e) Such original tenant being the mother-in-law died in 2005. (f) Original tenant’s son used to stay in the suit property till 2018. (g) The original tenant’s son died in 2018. 12. Plaintiffs say that from the above admissions of the defendant in the suit filed before the Learned City Civil Court, it can easily be construed that the defendant in the present suit acknowledges and admits that the original tenant in respect of the suit property was Bimla Devi Tandon and after her death in the year 2005, her son Ashok Kumar Tandon also died on 2018 and the defendant is in illegal occupation of the suit property. 13. Mr. Rupak Ghosh, Learned Advocate representing the plaintiffs submits that the statement made by the defendant in her suit filed before the Learned City Civil Court in Title Suit No. 1352 of 2022 is clear, categorical, unambiguous and unequivocal admission by the defendant. 14. Mr. Ghosh relied in support of his submissions relied upon the following judgments : (i) Sri. Sushil Kumar Jain & Ors. v. Pilani Properties Limited reported in 2017 SCC OnLine Cal 18807. (ii) Uttam Singh Duggal & Co. 14. Mr. Ghosh relied in support of his submissions relied upon the following judgments : (i) Sri. Sushil Kumar Jain & Ors. v. Pilani Properties Limited reported in 2017 SCC OnLine Cal 18807. (ii) Uttam Singh Duggal & Co. Ltd. v. United Bank of India and Others reported in (2000) 7 SCC 120 . (iii) Karnani Properties Limited v. Rajesh Mitra and Another reported in 2022 SCC OnLine Cal 1811. (iv) Karnani Properties Limited v. Naseem Ahmed Khan reported in 2023 SCC OnLine Cal 164. (v) E.D. Enterprises Private Ltd. v. Kaiser Begum and Another reported in 2022 SCC OnLine Cal 4428. (vi) Mangalic Enterprise v. Swapan Kumar Das and Others reported 2022 SCC OnLine Cal 2036. (vii) Shivani Properties Pvt. Ltd. v. Rama Shankar Pandey and Others reported in 2021 SCC OnLine Cal 4284. (viii) Geeta v. Mohd. Raza and Another reported in 2019 SCC OnLine Del 11385. 15. The plaintiffs have filed the suit against the defendant for eviction, recovery of possession and mesne profits as well as interest. After filing of the suit, the plaintiffs have lodged writ of summons and the same was duly served upon the defendant through the Bailiff as well as Speed Post but inspite of receipt of writ of summons, the defendant has not entered appearance in the suit. Copy of this application was also served upon the defendant but the defendant choose not to contest the present application also and thus the application filed by the plaintiff is taken up for hearing ex parte. 16. The plaintiffs have filed the present application for judgment upon admission on the basis of the statements made by the defendant in a suit filed by the defendant against the plaintiffs before the Learned City Civil Court being Title Suit No. 1352 of 2022 in which the defendant has made clear and unequivocal admission. 17. The contents made in paragraphs 1 and 2 of the plaint in connection with Tittle Suit No. 1352 of 2022 by the defendant against the plaintiffs reads as follows : “1. All that the piece and parcel of Flat measuring an area of 1000 Sq. Ft. 17. The contents made in paragraphs 1 and 2 of the plaint in connection with Tittle Suit No. 1352 of 2022 by the defendant against the plaintiffs reads as follows : “1. All that the piece and parcel of Flat measuring an area of 1000 Sq. Ft. more or less at “Mirzapur Building” 318, Chittaranjan Avenue, 5th Floor under Police Station – Girish Park, District – Kolkata, Pin – 700006, West Bengal which is the rented property of the plaintiff since long as the address of the suit property is showing in the Electrical Bill and Adhar Card of the plaintiff as 318, Chittaranjan Avenue, Kolkata – 700006, West Bengal, which would be an event that the plaintiff is staying and possession over the suit premises as address mentioned above and the plaintiff is making regular payment of rent to the defendants as the rent receipt is in the name of her mother in-laws who was died 2005 and thereafter it has not been changed in the name of the plaintiff's husband who also died on 2018 though in several occasion plaintiff request to the defendants to change the rent receipt in the name of plaintiff's husband and but in vain. 2. That the plaintiff is staying over the suit premises since the year 1985 as she was dependable upon her mother-in-law and her husband those who left behind her as a successor and it is to be mentioned that the defendants is not objected to take rent from plaintiff in regular basis after sad demise of the husband of the plaintiff but since August 2021, the rent has not been received by the defendants because the plaintiff is being told that they are trying to change the rent receipt in the name of the plaintiff herself which will take some time and the plaintiff now staying with her only daughter in the suit premises.” 18. From the above statements, it is clear that the mother-in-law of the defendant was the original tenant who died in 2005 and thereafter the husband of the defendant being the son of Bimla Devi Tandon continue with the possession along with the defendant herein. The husband of the defendant has died in the year 2018. The defendant is in occupation of the suit property since 2018 but the defendant has not informed about the death of her mother-in-law and her husband to the plaintiffs. The husband of the defendant has died in the year 2018. The defendant is in occupation of the suit property since 2018 but the defendant has not informed about the death of her mother-in-law and her husband to the plaintiffs. The defendant has also not come forward or made any request to the plaintiffs for any fresh agreement. The defendant has also not paid rent since August 2021 and has not sent any reply to the notice of eviction sent by the plaintiff. 19. Section 2(g) of the West Bengal Tenancy Premises Act, 1997, defines the word tenant which reads as follows : “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,] [Words within the third brackets substituted for the words '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 dependent on him' by W.B. Act 14 of 2002, w.e.f. 10.7.2001.] but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction.” 20. In the case of Sushil Kumar Jain Vs. Pilani Properties Limited reported in (2017) SCC OnLine Cal 18807, the Hon’ble Division Bench of this Court held that : “12. In the case of Sushil Kumar Jain Vs. Pilani Properties Limited reported in (2017) SCC OnLine Cal 18807, the Hon’ble Division Bench of this Court held that : “12. The 1997 statute replaced the 1956 legislation and changed the fundamental bases in certain cases. Just as certain classes of tenants have been given protection under the 1997 statute, the landlords of certain classes of tenants have been freed from the claustrophobic clutches of the 1956 Act. 13. Though the present matter primarily hinges on the quantum of rent paid for the residential tenancy by the appellants herein or their predecessor-in-interest, the appellants insist that since the death of father K. C. Jain, the original tenant, in the year 2000 was anterior to the 1997 Act coming into effect on July 10, 2001, a right vested in the joint tenants under the 1956 Act which could not have been taken away by the 1997 Act. Such contention amounts to suggesting that when a rent control legislation creates or confers a right, it cannot be curtailed by a subsequent legislation. Such contention is exceptionable and cannot be countenanced. In a sense, the contention amounts to this : that if the original tenant died prior to the 1997 Act coming into force, the heirs of the original tenant who were covered by the definition of “tenant” in Section 2(h) of the 1956 Act would have to be regarded as original tenants within the meaning of the expression in Section 2(g) of the 1997 Act. Clearly, such an interpretation is impermissible and absurd.” In the present case, it is the admitted case of the defendant that the mother-in-law of the defendant was the original tenant and she died in the year 2005 leaving behind her son and her son also died in the year 2018 and now the defendant is in occupation of the suit property but the defendant has no right to retain the said property. 21. In the case of Uttam Singh Duggal and Co. Ltd. vs. United Bank of India reported in (2000) 7 SCC 120 wherein the Hon’ble Supreme Court held that : “12. As to the object of the Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. Ltd. vs. United Bank of India reported in (2000) 7 SCC 120 wherein the Hon’ble Supreme Court held that : “12. As to the object of the Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said Rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.” In the case in hand, though the defendant has not appeared inspite of receipt of writ of summons of the suit, notice of the present application and after receipt of notice for vacating the premises, the defendant has filed a suit against the plaintiffs before the Learned City Civil Court wherein the defendant has made clear, categorical, unambiguous and unequivocal admission that the original tenant died on the year 2005, her son who continue with the possession of the suit property along with the defendant died in the year 2018. The defendant has neither informed about the death of mother-in-law nor the death of her husband to the plaintiffs. The defendant has also not come forward for any fresh agreement and also failed to pay monthly rent from August, 2021. 22. Considering the above, this Court finds that the defendant has made unambiguous and unequivocal admission to that of the claim of the plaintiffs and thus the plaintiffs are entitled to get decree upon admission with regard to recovery of possession. As regard to the mesne profit, this Court finds that an inquiry is to be conducted to ascertain the mesne profit. 23. As regard to the mesne profit, this Court finds that an inquiry is to be conducted to ascertain the mesne profit. 23. In view of the above, the defendant is directed to vacate the premises and to handover the peaceful possession of the suit premises to the plaintiffs. As regard to the mesne profit, Mr. Sourojit Dasgupta, Advocate, Mobile No. 8697542775, is appointed as Special Officer to conduct inquiry to ascertain the mesne profit and to file report before this Court. The remuneration of the Special Officer is fixed at Rs.3,00,000/-(Rupees Three Lakhs only). The plaintiff shall pay remuneration to the Special Officer and the plaintiff is liberty to recover the same from the defendant. 24. The Special Officer is directed to file complete inquiry and to file report within six months from the date of receipt of this Order. 25. G.A. No. 1 of 2023 is thus disposed of.