Calcutta High Court
Smt. Gita Devi Shah And Others vs Smt. Chandra Moni And Karnani And Others on 17 March, 1993
Equivalent citations: AIR1993CAL280, 98CWN187, AIR 1993 CALCUTTA 280, (1994) 1 RENCR 199, (1994) 2 RENCJ 270, (1994) 2 RENTLR 343, (1994) CAL WN 187
Author: Altamas Kabir
Bench: Altamas Kabir
ORDER Paritosh K. Mukherjee, J.
1. These two appeals are arising out of the judgment and order dated March 31, 1987, passed by the learned Assistant District Judge, 2nd Court, Alipore in Title Suit No. 247 of 1981 and Title Suit No. 154 of 1983, which were heard analogously.
2. Smt. Gita Devi Shah and others, being the plaintiffs in Title Suit No. 247 of 1981, purchased the suit premises being 1/1 Row-land Road, Calcutta-20, from the defendant No. 2 in three equal and undivided 1 / 3 shares under registered deeds of Kobala dated July 26, 1978. After the said purchase of the suit premises, a letter was issued by the Advocate on behalf of the plaintiffs to the defendant No. 1, Smt. Chandra Moni Karnani, informing about the transfer of the suit premises. The said letter has been'marked as Exhibit No. 2 in the suit. On the same day, a letter of attornment was also issued by the defendant No. 2 to defendant No. 1. It is claimed by the plaintiffs of Title Suit No. 247 of 1981 that the defendant No. 1 was tenant originally under defendant No. 2 and now under the plaintiffs in respect of five rooms on the ground floor, five rooms in the first floor with a servant quarters, garage and kitchen.
3. Thereafter, on the completion of three years, as required under provisions of S. 13(3A) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act of 1956), the plaintiffs in Suit No. 247 of 1981, instituted the suit for ejectment against the defendant No. 1, inter alia, on the ground of default, violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and for reasonable requirement and also for sub-letting.
4. The ejectment notice was served upon the defendant No. 1 on August 29, 1981 and the suit was instituted on December 1, 1981. Both the defendants entered appearance in the said suit (Title Suit No. 247 of 1981), but it has been contested only by the defendant No. 1.
5. In the written statement filed by the defendant No. 1, the validity of the transfer has been challenged and the relationship of landlord and tenant between the parties have also been denied. It has been further claimed in the written statement filed by the defendant No. 1 that the suit has been filed in collusion with the defendant No. 2. The defendant No. 1 has also categorically denied the description and/ or extent of tenancy, claimed by the plaintiff in the suit and claimed a lease of 11 years with option of renewal for another 5 years of the entire building, created in her favour by a document dated May 2, 1975.
6. After entering appearance in the Suit No. 247 of 1981, the defendant No. 1 instituted another suit being Title Suit No. 154 of 1983, challenging the validity of the deeds and prayed for declaration that the four instruments described in the schedule of the plaint of Title Suit No. 154 of 1983 are void or viodable on the ground of mala fide, collusion and fraud, alternatively, the defendant No. 1 is a tenant in respect of the entire premises No. 1/1, Rowland Road, Calcutta-20.
7. The defendants Nos. 1,2, and 3 (plaintiffs in Title Suit No. 247 of 1981) in the suit contested the same by filing written statement and denied ail material allegations averred in the plaint. The defendants in the said suit (plaintiffs in Title Suit No. 247 of 1981) have also denied the creation of lease, in favour of the defendant No. 1 by letter dated May 2, 1975.
8. Both the suit were tried analogously and a single Judgment dated March 31,1987, has been delivered by the learned Judge, dismissing both the suits.
9. Hence, these two appeals have been filed by the plaintiffs of both the suits, before this Hon'ble Court.
10. Mr. Ashoke Banerjee, learned Advocate is appearing with Amalesh Roy, learned Advocate, on behalf of the plaintiff/appellants in F.A. No. 178 of 1988 and respondents in F.A. No. 390 of 1990 and Mr. Rama-prasanna Bagchi, learned Advocate, with Mr. Janardan Chakraborty and Mr. Jahar Chakraborty, is appearing for the respondent No. 1 in F.A. 178 of 1988 and for the appellant in F.A. No. 390 of 1990.
11. The aforesaid appeals being F. A. No. 178 of 1978 and F.A. No. 390 of 1990 was mentioned before us for analogous hearing and by our order dated July, 29, 1991, the prayer for analogous hearing was allowed and the appeals were heard-in-part on September 17,1991 and as the Bench did not sit regularly, the parties were directed to submit their written notes of arguments, by our order dated April 27, 1992 and written notes of argument were submitted by the parties. -
12. It appears from the judgment that the learned Judge had framed the following issues in Title Suit No. 247 of 1981:
"(i) Is the suit maintainable?
(ii) Is the suit barred by any provision of law?
(iii) Is the plaintiff entitled to get a decree for ejectment, and recovery of khas possession?
(iv) To what other relief or reliefs the plaintiff is entitled to."
13. In Title Suit No. 154 of 1983, the following issues have been framed by the learned Judge:
"(i) Is the suit maintainable?
(ii) Is the suit barred by any provision of law?
(iii) Is the plaintiff entitted to get a decree for declaration, as prayed for?
(iv) Is the plaintiff entitled to get an injunction against the defendant?
(v) To what other relief or reliefs, if any, is the plaintiff entitled?"
14. All the issues were taken together by the learned Judge and decision was given analogously.
15. As regards the ground of default, the findings of the learned Judge was that the petition under Section 17(2) read with 17(2A) of the Act of 1956 was filed by the defendant No. 1 in Title Suit No. 247 of 1981. The said petition was allowed on contest with the direction upon the defendant No. 1 to deposit the sum of Rs. 2,700 / - with statutory interest thereon, within thirty days, being the rent for the month of August, 1978. As such, accord-
ing to the learned Judge, there was no ground for default, which ceased to exist.
16. We are also in conformity with the finding of the learned Judge. Since the defendant No. 1 in Title Suit No. 247 of 1981 has been depositing rent regularly with the Rent Controller, the ground for default does not exist any more. .
17. The main contesting issue in between the parties, therefore, remains with the question of reasonable requirement and violation of the provisions of clauses (m), (o), (p) of Section 108 of the Transfer of Property Act and sub-lelting.
18. We are in agreement with the observation of the learned Judge that for getting a decree under S. 13(1)(ff) of the said Act of 1956, the plaintiff is to prove that the plaintiff is the 16 annas owner of the premises and that he is not in possession of any other reasonable suitable accommodation.
19. The object of the said enactment, in our view, is to protect the tenants, against arbitrary, whimsical eviction, but it is also the object of the statute to give relief to the landlords, who are, genuinely in need of the tenanted premises for their own use and occupation.
20. The plaintiffs in Title Suit No. 247 of 1981 stated that they have become the owners of the premises by three separate deeds (Exhibit 1 series) of purchase, dated July 26, 1978. The defendant No. 1 has contested the said averment and raised a question, as regard to stamp duty paid over those deeds.
21. This question has been decided by the learned Judge by stating "As regards payment of stamp duty, the matter remains wide open because the amount of stamp duty, if found payable after assessment, in the usual course can be realised from the party concerned. Anyway, for our present purpose whether the plaintiff claimed the suit premises or not, both documentary and on the basis of oral evidence have to be looked into."
22. We are unable to agree with the observations of the learned Judge, as in our view, it violates the provisions of S. 35 of the Stamp Act. By the said provision, it has been specifically laid down that the instruments chargeable with duty shall not be admitted in evidence for any purpose, if not duly stamped. This put a vital responsibility upon us to see whether the deeds are properly stamped or not while taking into consideration the documentary evidence adduced by the plaintiffs to prove their ownership of the premises. If the deeds are not properly stamped they are not clearly admissible in evidence and the learned Judge cannot take judicial notice of those documents.
23. Further, in our view, the question of ownership remains undecided, a vital requirement, for obtaining khas possession by a landlord on the ground of reasonable requirement. A point, however, may be taken that the onus lies with the party to substantiate the allegation and that except filing an application under Section 35 of the Stamp Act, the defendant No. 1 in Title Suit No. 247 of 1981 did not adduce any specific evidence to establish the ground of inadmissibility of those deeds of conveyance.
24. But, in our opinion, non-action on the part of the parties does not relieve us from looking into the question. The Court has an independent liability to look into admissi-bility of the evidence either oral or documentary and to decide the question of stamp duty, even if the parties fail to take up the points.
25. As observed in the case of Gurunditta Mal v. Gurudasmal Ram Chand reported in, AIR 1925 Lahore 552 that "even if no objection is taken by the parties this Court should itself look into the question of stamp duty." Their Lordships, even went to the extent of saying that "even when the plea has been subsequently withdrawn the Court has to deal with the question as Section 35 is an absolute bar to the instrument being acted unless it is duly stamped."
26. In our opinion also a deed which is not properly stamped is to be taken as "an unstamped deed."
27. In view of the above observations we, 'therefore, hold that the learned Judge has erred in keeping the question wide open as the question of ownership remains doubtful. Therefore, in our view, one of the requirement under Section 13(1)(ff) remains unfulfilled.
28. Therefore, we are unable to agree with the findings of the learned Judge that the plaintiffs in Title Suit No. 247 of 1981 have succeeded in establishing that they are rightful owner of the premises, in the absence of a positive finding with regard to the admissibility of documents.
29. The learned Judge then deals with the question of relationship between the plaintiffs and the defendant No. 1 in Title Suit No. 247 of 1981. As regards the relationship of landlord and tenant, we find no difficulty in answering the question in the affirmative, inasmuch as, the defendant No. 1 has deposited the rent with the Rent Controller in favour of the plaintiffs and after depositing rent in favour of the plaintiffs, the defendant No. 1 has lost his right to challenge the relationship of landlord and tenant between the parties.
30. The learned Judge then deals with the question of extent of tenancy. On this point, we are unable to agree with the finding of the learned Judge that "I am unable to accept the contention of the defence that the entire suit premises was leased out to the defendant".
31. As per the defendant No. 1 in Title Suit No. 247 of 1981 the tenancy was created between the defendants Nos. 1 and 2 by a letter dated May 2, 1975. The said letter contains the terms and conditions of the tenancy. The case of the defendant No. 1 is that by the said agreement the entire premises being No. 1/1, Rowland Road, Calcutta-20, " has been let out to the defendant with the right of^ sub-letting. In the said letter and/or agreement, the leased premises is described as 1/1, Rowland Road, Calcutta-20. In all rent receipts, marked as Exhibit'C' series, the tenancy is described in each and every one of them as 1/1 Rowland Road, Calcutta-20. In the Rent Control challan also, the premises number is described as 1/1 Rowland Road, Calcutta-20.
32. It is, however, true that the said purported lease deed is made in violation of S. 17 of the Registration Act and as such does not create a valid lease, but the said document marked as Exhibit '8' undoubtedly creates tenancy right in favour of the lessee with the right to sublet so that the claim of the defendant No. 1 that she is in possession of the entire premises, partly by khas possession and partly by tenant, cannot be brushed aside.
33. Furthermore, the learned Judge has held the document to have been executed by the defendant No. 2 and the said finding has not been challenged.
34. Then again, while verifying the chal-lans during the hearing of the petition under Section 17(2) and 17(2A) of the said Act of 1956, the plaintiffs raised no objection with regard to the description of the tenancy. Furthermore, P.W. 1 in his cross-examination has stated that "I have withdrawn rent deposited with the Rent Controller by the defendant describing the tenancy as of the entire premises".
35. In our view, the learned Judge totally misguided himself by holding that the word "entire" is conspicuously absent in any one of the document filed by the defendant No. 1 and it is for the first time introduced in the written statement and in the plaint of Title Suit No. 154 of 1983, he is unable to accept the contention of the defendant No. 1 that the entire suit premises was leased out. The learned trial Judge, in our view failed to consider Exhibit-4, which is the reply given by the defendant No. 1 to the ejectment notice served by the plaintiffs, which is Exhibit-3.
36. Paragraph 3 of the said letter of reply, inter alia', contains the following lines:
"In particular my client states that at all material times she has been and still continues to be a monthly tenant under you in respect of the entire premises No. 1/1, Rowland Road, Calcutta-700020. According to the English Calendar month at the rent of Rs. 2700/- p.m. and my client denies that she is or was a monthly tenant in respect of five rooms in the main building and one garage and servant quarters only in the said premises as falsely and maliciously alleged by you."
37. Therefore, in our view, the defendant No. I in the first opportunity, denied the wrong description of the tenancy and such sharp re-action lends a strong support to the claim of defendant No, 1 to the extent of tenancy. Furthermore, it is only when a part of a premises is let out, the same is to be described but when only the premises number is given, it is presumed that the tenancy is in respect of the entire premises. In our opinion, absence of the word 'entire', cannot by any logic lead to the finding that only a part has been let out.
38. We, therefore, set aside the finding of the learned Judge that the tenancy was only in respect of a part of the premises and hold in favour of the tenants, the respondent in F.A. No. 178 of 1988.
39. We are also unable to agree with the finding of the learned Judge that the suit is not maintainable, as it has been filed during a period, when the lease agreement was subsisting, Section 3 of the said Act of 1956 provides that certain provision of the Act would not apply to certain leases, categorically lays down that it is not applicable to lease of any premises held under a lease for a period of not less than 15 years. It is an admitted position that the lease agreement dated May 2,19.75, is an unregistered deed of lease and is for a period of 11 years.
40. Therefore, in our view, a suit under the said Act of 1956 is maintainable.
41. To counter the observations that the. suit was not maintainable, the appellants in F.A. No. 178 of 1988 has referred to the case of Ranvijay Shahi v. Balaprasad Motani, , and the case_ of Shyamlal Agarwala v. Nanda Rani Dasi, .
42. In view of our observations that the respondent in F.A. No. 178 of 1988 is a monthly tenant under the appellants, the fact that 16 years have already passed during the pendency of the appeal and that fact should be taken into account, as observed in the case's aforesaid, need not be discussed any further.
43. In view of the aforesaid observations and findings, we need not discuss the argument forwarded on behalf ot the appellant in F. A. No. 178 of 1988 arising out of Title Suit No, 247 of 1981, that 15 years have been passed during the pendency of this appeal.
44. Before entering into the question of ,reasonable requirement, we would like to deal with the question of validity of the notice served upon the defendant No. 1.
45. A notice under Section 13(6) is a must for instituting a suit against the defendant. The relevant portion of the said section in its categorical terms states that no suit, proceedings can be instituted without seving a notice under Section 13(6). It is a procedure led and not substantive law and although Indian legal system is not so stringent as an English Law, with regard to the procedural part, yet care must be taken to see that unjustified liberalisation with regard to pro-cedural part does not create anomalous position resulting in mis-carriage of justice. The notice is a warning to the tenant having a threat to sue in case the tenant fails to comply with the requisition. The language must be clear, the tenancy should be described as specifically as is expected from a normal and reasonable man. This however, is an estab- \ lished principle of law and no notice under Section 13(6) of the said Act of 1956 would be declared bad, only because the tenancy has: not been exactly defined. The reason being that the tenant knows his own tenancy and the test is whether he had understood the purport of the notice or not. It is also necessary that| the grounds stated in the notice can only be; taken in the plaint. But, however, it is also: established principle of law that the plaint must be absolutely clear in describing the, tenancy as the court will pass decree of eviction from the premises as stated in the plaint.
46. In the instant case, we find that the notice of ejectment describes the tenanted premises as only five rooms in the ground floor and five rooms on the first floor with the garage and servant qaurters but the same has been categorically denied by the defendant " No. :1 in the reply.
47. In the plaint also the plaintiff describes the tenancy, exactly in the same manner and in the written statement of Title Suit No. 154 of 1983. There are averments in the pleadings that there are tenants in the said premises, but no evidence has been produced by the either side to prove who are they.
48. In our opinion, prima facie, the onus lies on the plaintiff to prove that other portions are occupied by other persons, who pay rent directly to the plaintiffs and the plaintiffs have failed in that regard. This leads us to reach to the only conclusion that the entire premises was let out to the defendant No. 1 and the plaintiff consistently described the tenancy wrongly in the notice and also in the plaint.
49. In view of the above, we hold that the notice is bad in law and not binding upon the respondent in F.A. No. 178 of 1988 and on this ground the suit is not maintainable for its clear violation of the statute, i.e. Section 13(6) of the said Act of 1956.
50. Now, we come to the question of reasonable requirement. The statute desires that the accommodation must be reasonably required by the landlord, that means, there must be a genuine need and not mere desire. Now, let us see whether the tenancy as described by the plaintiff in the plaint will suffice the purpose of the plaintiff in Suit No. 247 of 19S1.
51. As per the averment of the plaintiff himself he requires minimum 13 rooms plus place for full time servants and maid servants. Four rooms for the Office, one room for grandson, one room for worship, one room for dining, one room for drawing and two rooms for guests, who may visit. Now, as appears from the record, plaintiff is in an occupation of tenanted flat at 26/IG Pra-sanna Kumar Tagore Street, consisting of two rooms with a kitchen. To prove the tenancy -the plaintiff filed back-dated rent receipts only. /As per the reports of the Advocate Commissioner, the two rooms are all about 9'8'x 14.9" and 5'1x3'and there is a big hall. The total family members as stated by the plaintiff are eight. It appears from the evidence that the plaintiff has in his occupation other accommodation such as at 5, Munasi Sadderithan Lane, Calcutta, but it has stated that the factory supervisors stay there. Plaintiff has another accommodation at 173, Mahatma Gandhi Road, Calcutta and a business accommodation at Narikeldanga Main Road.
52. It is, therefore, established that the plaintiff has no sufficient accommodation for all the family members in one place and as observed by this Hon'ble Court in case of Jiban Jamini Devi v. Bakul Behari Guin, reported in (1961) 65 C.W.N. 799 and in the case of Amal Chandra Mitra v. Gobinda Basak, reported in (1989) 2 CLJ 450, plaintiff cannot be compelled to split up his family and put up at different places.
53. In view of the aforesaid decision, let us look into the question whether the plaintiffs will be spared from that trouble from spliting up of the family if the possession of the tenancy, as described by them, is made available.
54. As already stated above, the plaintiffs require more than Brooms. Therefore, the 10 rooms will certainly not suffice their purpose. We, however, cannot agree with the observation of the learned Judge that the plaintiffs be advised to make construction as it is admitted in the plaint that the defendant No. 2 had already obtained a sanction for construction of the second floor.
55. We further hold that the plaintiffs have failed to substantiate the ground that they reasonably require the accommodation and also apart from the fact that the question of ownership is not established.
" 56. As regards the principle laid down in the case of Gumming v. Danson, reported in 1942 (V. 2), All ER 653, we find no application of the same as that is a case where the tenant is provided with an alternative accommodation, a provision which is absent in the said Act of 1956.
57. We also do not find any application of the principle laid down in the case of Jaganath Sen v. Sriram Pasricha, reported in 1975 C.H.N; 135 in view of the fact that the question involved in the instant case is not whether the plaintiffs are full owners. The question of ownership remains undecided here because the admissibility of documents is not decided by the learned Judge, a very vital question for eviction on the ground of reasonable requirement.
58. As regard the ground of eviction on the ground of sub-letting, we do not find any evidence to support the submission of the appellants. It is contended by the appellants that the respondent has admitted the fact of sub-letting but in view of the fact that the document dated May 2,1975 is not admissible in evidence, being an unregistered deed of lease, the sub-letting attracts the vice of Section 14 of the said Act of 1956.
59. We are unable to agree with the contentions of sub-letting. The document being an agreement of a monthly tenancy need not be registered and the document can also be looked into for collateral purpose. The lease created under the said agreement is admittedly below 15 years and as such cannot be stated to be a transaction under Transfer of Property. 'Lease' in the parent term include tenancy also. The instant lease being a lease for a period of less than 20 years, the lessee clearly comes under the said Act of 1956 and the said statute does not lay down any provision for registration. Another point that must be made clear is that the genuineness of the execution of the document has been established by the trial judge by comparing , . the signature of the defendant No. 2 and no objection has been raised on that finding by the appellant. In view of this, we need not discuss with the case of Shantilal Ramporia v. M/s. Vega Trading Corporation, which deals with the question of impleading the sub-tenant as party in the suit.
60. As regards the question of illegal construction, we find from the evidence that an appeal is pending before the Calcutta Corporation authorities, and the latest position has not been made known to this Court.
61. We, therefore, find no reason to differ with the observation of the learned Judge in this regard.
62. For the reasons stated, above, we dismiss the appeal being R A. No. 178 of 1988.
63. As regard the appeal being F.A. No. 390 of 1990, we agree with the finding of the learned Judge that the suit is maintainable and is not barred by any provision of law. As regards the question whether the appellant in the F.A. No, 390 of 1990 can pray for the declaration that the instruments are void, we agree that no finding can be made in view of the absence of finding over the question of admissibility of the instruments with regard to the alternative prayer that the appellant is the tenant in respect of the entire premises and we hold in favour of the appellants.
64. We have already discussed the point above in detail. We, therefore, allow this appeal F.A. No. 390 of 1990 in part only.
65. There will be no order as to costs.
66. Prayer for stay of operation of this judgment is considered and rejected.
Altamas Kabir, J.
67. I agree.
68. Order accordingly.