Calcutta High Court (Appellete Side)
Sri Manik Lal Sen & Ors vs Bimal Kanta Chattopadhyay & Ors on 14 May, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI
S.A. No.477 of 1990
SRI MANIK LAL SEN & ORS.
... Appellants
- Versus-
BIMAL KANTA CHATTOPADHYAY & ORS.
... Respondents
Mr. S.P. Roychowdhury, Sr. Advocate, Mr. J.R. Chatterjee, Sr. Advocate Mr. Arup Banerjee, Mr. Kaushik Dey ... For the Appellants Mr. Udayan Dutta, Mr. Subrata Bhattacharya, Ms. Arpita Das ... For the Respondents Heard on : 22.11.2018, 06.12.2018 & 13.012.2018.
Judgment on : May 14, 2019.
Sahidullah Munshi, J.:-
This second appeal at the instance of the plaintiff is against the judgment and decree dated 23rd December, 1988 passed by the learned 4th Additional District Judge, Burdwan in Title Appeal No. 211 of 1987 reversing 2 those dated 28th April, 1987 passed by the learned Munsif, 2nd Court, Burdwan in Title Suit No. 384 of 1978. Plaintiff filed a suit for eviction of tenant and for recovery of khas possession of the suit premises. It is the plaint case that the suit premises mentioned in the schedule of the plaint originally belonged to Hemanta Kumar Sen and Madan Mohan Sen. While the said Sens were in exclusive possession as owner thereof, they had executed a Deed of Settlement in respect of the said property conferring life interest to their sister Smt. Bala Dasi. It was mentioned in the said deed that the suit property would devolve upon the legal heirs of Hemanta Kumar Sen on the death of Smt. Bala Dasi. According to the plaintiff, suit premises was let out by Hemanta Kumar Sen to one Radhakanta Bondopadhya at a rental of Rs.60/- per month payable according to English Calendar and Smt. Bala Dasi used to enjoy the said rent paid by the then tenant Radhakanta. Radhakanta paid his rent up to the month of July 1960 and thereafter he surrendered the tenancy and at his request, Taraprasanna Chattopadhya, the defendant no.1 was inducted in the suit premises on the self same terms and conditions and so long as Smt. Bala Dasi was alive, either she herself or the plaintiff no.1 used to realise rent for the suit premises. The plaintiffs are the ultimate heirs of Hemanta Kumar Sen and as such after death of Smt. Bala Dasi on 17th November, 1974, they have become the owners of the suit premises as per the deed of settlement. Although, it was known to the defendant no.1 that the plaintiffs are the legal heirs of Hemanta Kumar Sen and they are the owners of the suit premises, the defendant no.1 wilfully did not pay rent to the plaintiffs and thereby became defaulter since the month of November, 1974. That apart the defendant without the consent of the 3 plaintiff sublet the suit premises to defendant nos. 2 to 10. The plaintiffs reasonably required the suit premises for their own use and occupation inasmuch as the accommodation available to them in their residential premises was insufficient; they had no other reasonable suitable accommodation elsewhere other than the suit premises. Plaintiffs issued and served two notices to quit upon the defendant through their advocate under registered cover with acknowledgement due requiring them to quit and vacate the said premises after expiry of the month of October, 1978. Despite receipt of the notices the defendant did not vacate the suit premises nor paid the rent therefor. The defendant took the tenancy for his own use and occupation but he started running mess under the name and style 'Postal Mess' in the suit premises without permission of the landlord. Plaintiff, thereafter filed present suit for khas possession of the suit premises upon eviction of the defendant and for arrear of rent and damages.
Defendant no.1 contested the suit filling written statement denying all material allegations in the plaint and contended, inter alia, that the suit is not maintainable; there is no cause of action for the suit. The plaintiff is not entitled to any relief as claimed. Specific defence case is that Radhakanta was never a tenant in his personal capacity. He was a manager of the 'Postal Mess' which was the tenant and Radhakanta the member of the said 'Mess'. According to the defendant 'Mess' is the tenant for the suit premises and all its members were tenants collectively and jointly. Defendant no.1 does not admit the plaintiffs to be the owners of the suit premises. The defendant no.1 never sublet the suit premises to defendant nos. 2 to 10. He never 4 defaulted in payment of rent. After death of Smt. Bala Dasi the defendant no.1 could not know who actually became the owner of the premises and for that rent was not paid. Notices sent by the plaintiffs are not valid and sufficient. Relationship of landlord and tenant has not been determined by the said notices. The accommodation available to the plaintiffs in the suit premises is sufficient and they have other suitable and reasonable accommodation in the Burdwan town besides the suit premises. The plaintiffs did not require the suit premises for their own use and occupation.
This second appeal was admitted by an order dated 18th May, 1989. The appeal was admitted on grounds nos. (i), (ii), (iv) and the added ground no. (x). To consider the merit of the appeal the following substantial question of law emerges out which are to be considered now.
1. Whether the Court of appeal below ought to have held that the deed (Exbt.4) having been registered as a deed of settlement, it cannot be construed as a deed of trust.
2. Whether the Court of appeal below ought to have held that even if the deed (Exb.4) is treated as a deed of trust the object for which it was created having exhausted, the trust stood extinguished and the same was reverted to the heirs of Hemanta, the plaintiffs/appellants for which no further documentation was required.5
3. Whether the Court of appeal below ought to have held that issue nos. 1 and 2 not having been pressed by the defendants the same cannot be agitated at this stage.
4. Whether the Court of appeal below ought to have allowed amendment of plaint in view of its finding that defendant nos. 2 to 10 were not made parties.
The learned trial Court framed as many as nine issues and answered all of them. It is undisputed that issue nos. 1 and 2 which touches the maintainability and cause of action for the suit was not pressed by the defendant. Therefore, it was held that there was cause of action for the suit and that suit was maintainable in the form it was presented. It was also undisputed that notice to quit was served and the same has been held by the trial Court to be valid and legal. On the question of default the trial Court held that the defendant was entitled to protection under Section 17(4) on the question of default. It was held by the trial Court that the defendant no.1 sublet the suit premises and it was established by evidence and that 'Postal Mess' was not the tenant. On the issue of reasonable requirement the trial Court made detailed inquiry and arrived at a finding that the suit premises was reasonably required by the plaintiff which was found to be proper on evidence and further that there was no suitable and reasonable accommodation for the plaintiffs in the town of Burdwan. It is evidently proved that the premises was required for the plaintiffs' own use and occupation. After answering all the issues the learned trial Court held that the plaintiffs were able to prove their plaint case and they were entitled to 6 decree for eviction of the defendant no.1 and for recovery of Khas possession and other consequential reliefs. The judgment of the trial Court has been assailed by the defendant in first appeal. The First Appellate Court, although, agreed to the findings of the trial Court almost on all the issues except that the plaintiff did not file the suit in the capacity of trustees but filed the same in their personal capacity. The Appellate court is of the opinion that Exbt.4 is not a deed of settlement as claimed by the plaintiff but that the same was a deed of trust. According to the Appellate Court property vested in Hemanta as sole trustee and on the death of Smt. Bala Dasi legal heirs of Hemanta continued to act as trustees. They did not become absolute owner of the suit property in absence of deed of conveyance. The Appellate Court below held that although the deed was registered as a deed of settlement according to the provision of Stamp Act and the duty payable was appropriate but since in the notice it was mentioned that the deed was a deed of trust and the eviction notice was issued in the capacity of a trustee, the eviction suit on the basis thereof cannot continue in the capacity of an owner but it should have been filed as a trustee. While describing the said deed as a deed of trust and taking note of the notice to quit (Exbt.1), however, the learned Appellate Court did not, as it appears, properly visualize the contents of the notice to quit where it mentioned about the trust but in the ultimate paragraph the persons on whose behalf the notice to quit was issued have been described to be the owners of the suit premises deriving their ultimate interest from the trust. On perusal of the trust deed (Exbt.4) it also does not appear that after death of Smt. Bala Dasi apart from the plaintiffs there was any other interest created in respect of the said 7 property which was to devolve on some other persons or any other obligation had been attached to the said deed of trust in favour of the heirs of Hemanta Kumar Sen that is the plaintiffs. Therefore, it is purely academic and also highly technical to hold that the plaintiffs should have described them as trustee rather owners of the suit property. That apart the attack on the judgment of the trial Court on the ground of landlord and tenant's relationship cannot be sustained because the defendant no.1 has admitted that the plaintiffs are their landlords and they tendered rent to the said plaintiffs or their predecessor-in-interest. The other issues have gone against the defendant and the said defendant has not filed any cross-objection before this Court against those issues. It is established in the trial Court that the defendant no.1 sublet the premises to the other defendant nos.2 to 10 and this had been accepted. This is sufficient to hold that the said defendants are liable to be evicted. The Appellate Court has held that the appellant nos. 3 to 10 are sub-lessees or assignees and the trial Court's finding on this issue has been concurred by the First Appellate Court.
Mr. Roychowdhury, learned Senior Advocate appearing for the appellants has relied on the following decisions:-
• Premchand Manickchand -Vs. - Fort Gloster Jute Manufacturing Co. Ltd. reported in 1964 CWN 103;
• Satyanarayan Shah and Ors. -Vs. - Star Company Ltd. and Anr. reported in AIR 1984 Cal 399;
8• Sir Chunilal V. Mehta and Sons Ltd. -Vs. - Century Spinning and Manufacturing Co. Ltd. reported in AIR 1962 SC 1314. The two decisions in Premchand Manickchand (supra) and Satyanarayan Shah (supra) have been cited on the question whether the Appellate court can reopen the issue of maintainability when the defendants did not prove the issue before the trial Court and the issues were decided in favour of the plaintiffs. In Premchand Manickchand (supra) this Court on a question whether the point of law raised but abandoned in trial Court, can such point be raised at the Appellate stage, it was answered that a ground of law, particularly one which goes with the validity of the entire proceedings, can be taken for the first time at any stage. But when a party has raised such a ground in the trial Court and then, deliberately forewent it, he cannot be allowed to raise it again at the Appellate stage. Although, the decision is in relation to the arbitration proceeding but the principle underlying therein is applicable in the present case. Such is the case here where the defendant did not raise any objection with regard to the maintainability on the issue whether the suit was maintainable in the capacity of the plaintiffs as owners of the suit premises and not being filed in the capacity of trustees. Once this issue was framed and not pressed by the defendant at the Appellate stage neither this can be agitated nor the Appeal Court can be said to be jurisdictionally correct to entertain such question of maintainability and reverse the judgment and decree passed by the trial Court. 9
In Satyanarayan Shah (supra) this Hon'ble Court on a similar issue held that plea not pressed at the time of hearing cannot be allowed to be raised for the first time in appeal.
The decision in Sir Chunilal - Vs. - Mehta (supra) the Hon'ble Apex Court held "it is well settled that the construction of a document of title or a document which is the foundation of the rights of parties necessarily raises a question of law." On perusal of the Appellate Court's decision it appears that the learned First Appellate Court below went wrong by the recital of the deed where the word 'trust and trustees' are mentioned but the learned Court below has not considered the entire deed and the purport there of. In my view, had the learned First Appellate Court below construed the true purport of the deed, the finding which it has arrived at would not have been arrived. Even without going into the controversy raised by the Appellate court the Appellate Court's decision cannot be sustained and the plaintiff cannot be deprived of the decree as passed by the learned trial Court inasmuch as apart from the question of maintainability the Appellate Court below has affirmed the view of the trial Court. At least from the Appeal Court's decree it is not apparent that it has doubted the trial Court's finding with regard to the eviction on reasonable requirement and subletting. Therefore, these are sufficient grounds for decreeing the suit which the trial Court has rightly done. On the question of maintainability as pointed out by the appellant, I am of a different view that even that is not maintainable but when record reveals that the defendant no.1 admits the plaintiffs to be their landlords and when it is established that he tendered rent, defendant no.1 or 10 other defendants claiming through defendant no.1 cannot dispute the title of the landlord whether he is the owner or a trustee.
Mr. Dutta learned Advocate appearing for the respondent has relied on a decision in • Uma Roy - Vs. - Smt. Meghamala Dey & Anr. reported in 1988(II) CHN 128.
The said decision in paragraph 12 clarifies that the trustee is the legal owner, though there is a confidence reposed in him to carry out the obligation of the trust. The interpretation made in the said decision rather helps the appellant as I have already held in this decision that the plaintiffs are the owners since they have no legal obligation under the deed of trust or settlement for any other person or for any other purpose.
In such view of the matter the judgment and decree passed by the learned Appellate Court below cannot be sustained and the same is, accordingly, set aside.
The judgment and decree passed by the trial Court is affirmed and restored. Appeal stands allowed.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)