Calcutta High Court (Appellete Side)
Bijon Kumar Mazumdar & Ors vs Sankar Chandra Paul on 4 January, 2018
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In The High Court At Calcutta
Civil Appellate Jurisdiction
4.1.18
SA 519 of 2006
Bijon Kumar Mazumdar & Ors.
-Vs-
Sankar Chandra Paul
Mr. Bhaskar Ghosh
Mr. Pinaki Ranjan Mitra
... for the appellants.
Ms. Puja Beriwal
Mr.Prasenjit Burman
Ms. Sumitra Das
Ms. Ankita Moitra
... for the respondent.
The instant appeal is directed against the judgement and decree dated March 30, 2002 in Title Appeal No. 173 of 2000 passed by the Additional District Judge, 3rd Court, Howrah, reversing the judgement and decree dated August 30, 2000 passed in Title Suit No. 16 of 1996 by the Civil Judge (Junior Division), 6th Court, Howrah, inter alia, on the ground that the learned Court of appeal below has committed error in law allowing the appeal and decreeing the suit declaring that the plaintiff is a tenant overlooking altogether that the plaintiff has failed to establish that he is a tenant in respect of the suit property and mere production of the Ration Card and Voter Identity Card does not ipso facto prove that the plaintiff is a tenant in respect of the suit properties, thus, the learned Court of appeal below committed grave error in law in holding that the plaintiff is a tenant in respect of the suit premises.
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This Court is called upon to take into consideration the following substantial questions of law framed by the Division Bench of this Hon'ble Court;
"1) Whether in view of the provisions of Section 25 of the West Bengal Premises Tenancy Act it is clear that in order to claim a right of tenancy one has to produce a rent receipt and in case rent receipt was not granted one has to satisfy that he has taken recourse to the provisions of Section 25(2) of the Act which provides a remedy for refusal to grant rent receipt and the Court of appeal below committed grave error in law in holding that the plaintiff is a tenant in view of the fact that the plaintiff has proved his tenancy on production of Voter's Identity Card and Ration Card.
2) Whether the Learned Court of Appeal below committed grave error in law in holding that the plaintiff is tenant since no legal steps were taken to evict the plaintiff who is a trespasser, overlooking altogether that the plaintiff has failed to produce a scrap of paper in support of tenancy."
The brief fact leading to the instant appeal is that the plaintiff is one of the tenants in respect of one room at 15, Kumar Para Road, Police Station- Liluah, Howrah at a monthly rental of Rs.10/- payable according to the English Calendar month. His father Monmohan Paul, since deceased was previous tenant in respect of two bedrooms with kitchen at a monthly rental of Rs.20/- under the landlord Kamal Kanta Das, since deceased and Amal Kanta Das. During the subsistence of the tenancy the plaintiff's father surrendered one room in favour of the said landlord and the defendants' father Janardan Majumdar was then inducted in the said room by the said landlord.
Since at the time of plaintiff's father, the plaintiff himself, his mother, grandmother and brother used to reside in the said room being held by the plaintiff's brother as the premises tenant.
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By an advocate's letter dated January 31, 2006 the plaintiff was informed that the defendants/appellants herein were the sons of said Janardan Majumdar who claimed that the said premises is owned by them and alleged that the plaintiff is occupying one room of mud wall with tile shed at the said premises forcefully.
Prior to that letter the defendants with the help of antisocial elements tried to cause forcible eviction of the plaintiff for which the plaintiff was compelled to file a Miscellaneous Petition being M.P.No. 1483 of 1995 in the Court of S.D.M.(Ex.) Court, Howrah and filed the suit before the learned trial Court for declaration that he is one of the premises tenant in respect of the suit property mentioned in the Schedule of the plaint having tenancy right devolved upon him after the demise of his father Monmohan Paul, who was the original tenant in the suit room and further prayed for permanent injunction restraining the defendants from forcibly evicting the plaintiff from the suit room.
According to the plaintiff/respondent he continued to pay monthly rentals at the rate of Rs.10/- per month but as a good relationship was prevailing between the present plaintiff/respondent herein and the former landlords no rent receipt was granted by the previous landlords and taking advantage of this position the present defendants/appellants are claiming to be the owner of the said premises describing the plaintiff as a forcible occupier of the suit room. Whereas the plaintiff/respondent claimed to be the lawful tenant in respect of the suit room by way of inheritance. The suit was contested by the appellants herein as defendants by filing written statement denying all material particulars made in 4 the plaint and contended, inter alia, that the plaintiff is not a tenant in respect of the suit room as alleged by him at a rental of Rs.10/- and he has forcibly occupied the suit room and he is a trespasser.
According to the appellants/defendants the plaintiff/respondent's father Monmohan Paul was a tenant in respect of one room at a monthly rental of Rs.10/- under Kamal Kanta Das since long ago. Thereafter, plaintiff's father died and his elder brother resided in the suit room as a tenant who vacated the tenanted room in favour of Kamal Kanta Das and Amal Kanta Das by surrendering his tenancy before 1980 and the room was vacant under lock and key of the landlords the then but the plaintiff all of a sudden forcibly trespassed into the room by breaking open the door of the room with the help of some antisocial elements and thereafter the plaintiff is occupying one room as a trespasser.
The plaintiff's brother took fresh tenancy right from the landlords and thereafter he surrendered the tenancy in respect of the room occupied presently by the plaintiff/respondent in favour of landlords and had given khas possession to them. The defendant by a Registered Deed of Sale has become the owner of the suit premises by virtue of purchase from his original vendor Kamal Kanta Das and others and accordingly, has claimed by way of counter claim recovery of khas possession of the plaintiff's occupied room and for injunction against the plaintiff/respondent herein by way of counter claim under Order 8 Rule 6A of the C.P.Code.
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The counter claim of the defendants/present appellants were also contested by the plaintiff/respondent by filing a written statement in respect thereof contending that there cannot be any counter claim for recovery of possession of the plaintiff's occupied room as trespasser as he occupied the said room as a tenant. On the pleadings of the parties the learned trial Court framed issues and proceeded in trial and taking the evidence was pleased to dismiss the suit against the defendants without any costs. However, the defendants/appellants herein were granted a decree in terms of their counter claim for recovery of possession of the suit premises within 90 days from the date of the order in default the defendants/appellants were given liberty to execute the decree through Court. This is the judgement impugned dated March 30, 2002 which was appealed before the learned Appellate Court below in Title Appeal No. 173 of 2002 which appeal was allowed by setting aside the judgement and decree passed by the learned trial Court declaring that the present plaintiff/respondent herein is a premises tenant in respect of the suit property as mentioned in the schedule to the plaint after the death of his father and the defendants were permanently restrained from evicting the plaintiff from the suit premises without due course of law.
It is submitted on behalf of the learned counsel for the defendants/appellants that in view of the provisions of Section 25 of the West Bengal Premises Tenancy Act, in order to claim a right of tenancy one has to produce a rent receipt and in case the rent receipt was not granted one has to satisfy that he has taken recourse to the provision of Section 25(2) of the West 6 Bengal Premises Tenancy Act, 1956 which provides a remedy for refusal to grant rent receipt and the learned Appellate Court below committed grave error in law by holding that the plaintiff is a tenant in view of the fact that the plaintiff has proved his tenancy on production of Voter's Identity Card and Ration Card. The evidence of plaintiff- Sankar Chandra Paul examined as P.W.-1 who has stated on oath that his father was the original tenant of the suit premises in respect of the two rooms previously and he surrendered by giving possession of one tenanted room in favour of the landlords and in the left another tenanted room his father, mother, grand-mother and he himself lived therein.
Photo copies of the Ration Card, Voter's Identy Card, Exhibit -1 and 3 taken together with a school leaving certificate, Exhibit-4 would show that the plaintiff/respondent herein Sankar Chandra Paul happens to be son of late Monmohan Pal but they cannot be treated as documents of tenancy. The address given in those documents were obviously at the stage when his father was admittedly a tenant in respect of the suit premises and even the persons on occupation in the premises can give declaration of his address on the basis of such documents prepared by the public office are obviously subject matter of proof.
Be that as it may, it also appears from the evidence adduced by PW-1, the rent receipts, Exhibit-2 and 2A dated January 12, 1969 and October 10, 1955 respectively that the father of the plaintiff Monmohan Paul was tenant in respect of the two rooms at 15, Kumar Para Road within P.S.-Liluah, Howrah under the previous landlord. Barring this document there is no other documents adduced 7 on evidence in support of the case of the plaintiff as made out in his plaint that since the time of his father the plaintiff himself, his mother, grandmother and brother used to reside in the said room which was held in tenancy by the plaintiff's brother and it was after the surrender of one room in favour of the landlord by the father of the plaintiff. So the plaint case runs like this. According to the defendants, brother of the plaintiff had surrendered his tenancy in favour of the landlord. The fact that the plaintiff's brother was a tenant in respect of one room as mentioned in paragraph 4 of the plaint finds corroboration by the PW-1 himself who affirmed in his cross-examination the fact deposing that the plaint was written under his instruction and the statement made in the plaint are all true. The plaintiff has admitted in his cross-examination that he has no rent receipts in his custody except the rent receipts of the year 1995 issued in the name of his father being the Exhibits 2 and 2A. According to him he tried to deposit rents to the defendants but they refused but there is no such averments in the plaint. If there was a refusal in accepting the rent by the defendants what prevented the plaintiff in not taking recourse by tendering the rent by remittance through money order and if in case such remittance by way of money order is refused, then he had the legal recourse to take as per the provisions of Section 25(2) of the West Bengal Premises Tenancy Act, 1956 which reads as follows:-
"25(2) If the landlord or his authorised agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (1) for any rent paid by the tenant, the Controller shall, on application made in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorised agent, by order direct the 8 landlord or his authorised agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid."
The plaintiff has categorically admitted the fact that he has not sent the rent through money order and also not paid the rent to the rent controller. No doubt he is in possession of the suit premises.
It would appear on perusal of the judgement of the learned Appellate Court below that the learned Appellate Court below has failed and neglected in considering the evidence of Amal Kanta Das, DW-2 who was the previous owner and landlord of the suit premises. He has categorically stated on oath that Sankar Chandra Paul resided in the said room at the time of selling. He was in possession forcibly in that room. He never paid him any rent and has never received any rent from him and he was never a tenant under him. He knew that his elder brother inducted Manik as tenant and issued rent receipt to Manik. He categorically deposed that there is no relationship with Shankar and that is why he is in forcible possession of the suit room. This is what is the quality of evidence deposed by DW-2. So, his evidence goes uncontroverted and trustworthy to arrive at a conclusion that Sankar Pal had trespassed into the premises and occupied forcible possession which fact supports the averment as made in the written statement by the defendants that with the help of antisocial elements he had entered into the suit room.
Learned counsel for the plaintiff/respondent has argued that the trial Judge dismissed the suit in favour of the defendants only on the ground 9 that the plaintiff failed to produce any rent receipt in his favour to prove his tenancy. The learned Trial Judge observed that under Section 25 of the West Bengal Premises Tenancy Act, 1956, the rent receipt is an essential document to prove the tenancy of a tenant. He further observed that " As in the instant case if the plaintiff claims to be a tenant, he has to discharge initial onus by providing that the intention of the parties was to create a tenancy and the most important incident of the tenancy is payment of rent. In this case the onus is absolutely on the plaintiff to prove that he is a tenant and it is not for the defendant to prove that the plaintiff is not."
It is an admitted fact that the father of the plaintiff was a contractual tenant in respect of the suit property till his death, the plaintiff inherited tenancy under Section 2(h) of the Act of 1956 as under the provisions of the said section after the death of a contractual tenant, his tenancy right is governed by general law of succession. This proposition of law has been affirmed by a Constitutional Bench of the Hon'ble Supreme Court in Gian Devi Anad v. Jeevan Kumar & Ors., reported in AIR 1985 SC, 796.
Inviting my attention to the observation made in paragraph 36 of the cited decision learned counsel for the respondent urged that the plaintiff/respondent being one of the heirs of his deceased father, original tenant, is entitled to declaration of his right as a tenant in respect of the suit premises. It would be apt to reproduce the observation as made in paragraph 36 as follows:-
"Accordingly, we hold that if the, Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed', the tenant even after 10 the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed . If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession."
The question in the cited decision which arose for consideration before the Hon'ble Supreme Court was as to whether a statutory tenancy is heritable on the death of the statutory tenant. The decision was in the context of a case where discussion with regard to the status of a statutory tenant as such expression is 11 not found to be in any provision of the Delhi Rent Control Act, 1958 or the rent control legislation of any other State. It is an expression coined by the judges in England and, like many other concepts in English law, it has been imported into the jurispudence of this Country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. Though, the expression statutory tenant has not been used in any rent control legislation the concept of statutory tenant finds recognition in almost every rent control legislation. It was held that Wasti Ram enjoyed the status of a tenant of the premises in dispute even after determination of the contractual tenancy and notwithstanding the termination of the contractual tenancy, Wasti Ram had an estate or interest in the demised premises; and tenancy rights of Wasti Ram did not come to an end with his death but they devolved on the heirs and legal representatives of Wasti Ram. The heirs and legal representatives of Wasti Ram step into his position and they are entitled to the benefit and protection of the Act.
I have gone through the decision made which is distinguishable from the facts and circumstances of the instant case. It is not the case of the respondent/plaintiff that his tenancy right was determined by issuance of notice to pay, rather the suit is one for declaration of his right as a tenant at the suit premises on the score that he being one of the sons of the original tenant is entitled to inherit the tenancy right as discussed above.
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It would not be out of the place to take note that in the cause title of the plaint, the plaintiff has not impleaded his brother who admittedly had been the tenant in respect of the suit room. If one claims that the tenancy has been inherited, then it has to be claimed by all the heirs as per Section 2h of the West Bengal Premises Tenancy Act, 1956 which reads as follows:
"2(h). Tenant [means any person] by whom or on whose account or behalf, the rent of any premises, or but for a special contract would be, payable and [includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death,] but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction."
Learned counsel for the plaintiff/respondent submits that the story of surrender of tenancy by the plaintiff's father and induction of the brother of the plaintiff has not been proved by adducing any evidence by the defendant. I do not agree with such contention. No evidence led to show that the brother of the plaintiff has passed away for that he could have acquired the tenancy right by way of inheritance, therefore, the definition clause 2(h) is not in the help of the plaintiff. It is well settled position of law that a party who claims a judgment has to prove his case on his own before the learned trial Court, basically the suit is for declaration of tenancy right of the plaintiff. It is the plaintiff who has to prove his case based on the pleading. He has stated that he has been paying rent but as I have observed that no rent has been paid by him even for his occupation, though, he has claimed that rent was tendered but was refused by the defendants. But no such evidence has been produced by the plaintiff/ respondent herein. It is 13 crystal clear from his cross-examination that he has not tendered any rent by way of money order or refusal to accept such rent by the landlord owner. It is also submitted on behalf of the plaintiff/respondent that it is the bounden duty of the defendants to prove the allegations levelled against the plaintiff in the written statement, but the defendants hopelessly failed to prove the same. It is also contended that the allegation of forceful occupancy of tenanted premises by the plaintiff is not sustainable in the eye of law and mere mentioning of a statement in the Deed of Conveyance that the plaintiff is a trespasser can't be considered as a credible evidence as the plaintiff was not a party in the said Deed of Conveyance and any such contrary statement made therein cannot be binding upon the plaintiff.
I am not in argument with learned counsel for the plaintiff as it would appear from the Registered Deed of Sale in favour of the defendants/appellants Exhibit-A, the defendants have proved their right, title and interest in the premises in question. The plaintiff is not expected to be a party to the Deed between the vendor and the vendee.
Learned counsel for the defendants/ appellants referred to a decision of the Hon'ble Supreme Court in the case of Bhagwati Prasad v. Chandramaul, reported in AIR 1966 Supreme Court 735(1) wherein it has been observed that;
"In a suit for ejectment the defendant admitted the title of the plaintiff in regard to the plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was returned by the plaintiff."14
The facts of the cited decision is no doubt distinguishable from the instant case but ratio of decision can be taken note of, whereby it has been held that in absence of proof of tenancy and of defendants agreement, the conclusion of the High Court in first appeal that the defendant was in possession of the suit premises by the leave and licence of the plaintiff, did not cause prejudice to the defendant. There was no error of law if the decree of ejectment was passed. Accordingly, the judgement passed by the High Court in affirming the decree for ejectment passed by the learned trial Court on the ground that the defendant was in possession of the suit premises as a licensee was not faulted with by the Hon'ble Supreme Court and the judgement was so affirmed. In that case, the High Court was obviously impressed by the thought that once the defendant was shown to be in possession of the suit premises as a licensee, it would be futile to require the plaintiff to file another suit against the defendant for ejectment on that basis and the approach made by the High Court in holding so in the facts of the case was on its right track.
It has been held that plaintiff is entitled to eject the defendant. It follows that from the date of the decree granting the relief of ejectment to the plaintiff the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages.
Taking cue from the principle laid in the cited decision, learned counsel for the appellants submits that the learned trial Court has rightly passed the decree 15 for recovery of possession with mesne profits and damages in view of the prayer in the counter claim made under the provisions of Order 8 Rule 6 of the C.P.Code. In this regard another decision is relied upon in the case of Tarumoni Mondal & Ors. v. Prafulla Kumar Mondal & Ors., reported in CHN 2006(3) 1, wherein it has been categorically held in a situation like this taking note of a settled law that even if the actual induction as licensee is not proved, the moment the plaintiff establishes absolute title to the property and the defendant fails to establish his title in the property, the plaintiff is entitled to get a decree for eviction as a matter of course simply on the basis of his title.
This decision as I have gone through it relates to a suit for partition by the plaintiffs of that case in respect of their ½ share in the suit property alleging that their predecessor Upendranath and his brother Ganesh had purchased the suit property from the then Zamindar under the registered deed in 1929 and in that contention it may be distinguishable nevertheless the settled principle of law as discussed above applies in the facts of the case where I have found that the plaintiff/respondent has not denied the title of the defendant/appellant herein in respect of the suit property and that stand corroborated and well proved on the basis of the Registered Deed of Sale dated May 31, 1995 Exhibit-A. Whether the fact of forcible possession by way of trespass by the act of breaking upon the padlock on the door of the suit room is proved or not applying the principle as laid down in the cited decision, this Court holds that the plaintiff/respondent is not entitled to continue in possession of the suit room even he is considered to be in permissive possession of the same by the erstwhile 16 landlord but this fact cannot be lost sight of that the recital to the deed itself gives out a fact that it is the plaintiff/respondent who had trespassed into the suit room with the help of some antisocial elements. This fact is not disputed from the side of the plaintiff/respondent during trial. The evidence of DW-2 corroborates the evidence of DW-1 and that of the defendants of the suit being the appellants herein. The oral testimony as deposed by DW-2, the erstwhile owner/landlord and the vendor of the defendant/appellant herein has not been taken note of by the learned Appellate Court below and bearing in mind the evidence as adduced by DW-1 which stand uncorroborated by the plaintiff during his cross-examination, this Court is unable to accept the contention of learned counsel for the plaintiff/respondent that as an heir of his father the plaintiff became the tenant of the suit premises under general law of succession.
It is also contended that it is immaterial whether the plaintiff was residing with his father or not at the time of death of his father and in support of his contention the learned counsel for the plaintiff/respondent has further relied on a decision in the case of Kumar Jagdish Chandra Sinha & Ors. v. Mrs. Eileen K. Patricia DRozaire, reported in AIR 1995(SC) 515 wherein it has been held by the Hon'ble Supreme Court that in view of the admitted fact that Mrs. Menan was a contractual tenant at the time of her death, it must therefore be held that the respondent inherited the tenancy as her heir. Consequently, the question as to whether she was ordinarily residing with her mother at the time of her death becomes redundant as observed in paragraph 15 of the cited decision. 17
The fact of the case is not well nigh within the facts and circumstances of the instant case. I would like to reiterate the factual aspect once again as led by the plaintiff/respondent before the trial Court in his plaint wherein he clearly averred that it was the plaintiff's brother who hold the suit room in tenancy after his father surrendered one room out of two rooms at the suit premises to the erstwhile owners. Therefore, without bringing his said brother on record, the plaintiff cannot seek such declaration of his tenancy right in respect of the suit room.
On perusal of the impugned judgement passed by the learned Appellate Court below it has been observed that after the death of his father the PW-1 along with his family members has been residing in the suit room and he has been making payment of rent but it is not understood on what basis the learned Appellate Court below was of such observation as there was no rent receipt and not a single scrap of paper produced in support of the fact that he was making payment of rent and such observation made by the learned Appellate Court below appears to be perverse. Admittedly, the plaintiff's father Monmohan Paul was a premises tenant but it is not the admitted fact, after the death of Monmohan Pal the plaintiff has been occupying the suit premises inasmuch as the plaintiff himself admitted that it was his brother who hold the suit room in tenancy. There is no evidence of death of the said brother so as to claim of inheritance of the tenancy in respect of the suit room. Therefore, the observation by the learned Appellate Court below that there is admitted fact that after the death of Monmohan Paul, the plaintiff has been occupying the suit premises is a myth and 18 is wishful thinking of the learned Appellate Court below. It is also observed by the learned Appellate Court below that the previous landlord Amal Kanti Das and others that one Sankar Chandra Paul forcibly occupied one room where his late father and brother were tenants who left 10 years ago. Had there been any authenticity in the averment, the earlier landlord must have taken recourse to law in order to evict the plaintiff who allegedly occupied the room as a trespasser. This fact as observed by the learned Appellate Court below is hypothetical as there is no such averment made by the previous landlord Amal Kanta Das. The recital of the deed marked Exhibit-A has no merit in view of the fact that no legal step was taken to evict the plaintiff had he been a trespasser. So, mere inclusion of a sentence in the recital of the deed against the plaintiff would not ifso facto level upon the plaintiff as a trespasser. Such observation and the finding is also wishful thinking of the learned Appellate Court below in view of the fact that the plaintiff prayed for decree of declaration of his tenancy in respect of the suit room.
Having regard to the reasons stated above and bearing in mind the learned counsel for the appellant has fortified his argument in support of his case referring to the proposition of law laid down in the case of Mrs. Juthika Basu & Ors. v. Lt. Col. A.N.Sharma, reported in 1992(1) CLJ 174 wherein it is held that;
"A) In view of Section 101 Evidence Act when plaintiff owner seeks for a relief on the footing that defendant is a licensee and defendant resists the claim on the footing that he is a tenant, the burden of proof is on the defendant. For, burden of proof in any particular case depends on the circumstances under which the claim arises. The burden of proof, in this sense, rests upon the party whether plaintiff or defendant, who substantially asserts the affirmative of the issue. As against the case of the plaintiff that the defendant was a licensee when the defendant had come forward with the case that he was not a 19 licensee, but a tenant protected under the provisions of the West Bengal Premises Tenancy Act, the defendant had to prove his case by adducing evidence in support of his case. In deciding which party asserts the affirmative, regard must of course be had to the substance of the issue and not merely to its grammatical form, which latter the pleader can frequently vary at will, moreover a negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegation rests on him.
B) To establish tenancy one has to prove the induction of the tenancy and the terms and conditions of such tenancy. Secondly, in order to establish a case of tenancy, there must be a privity of contract between the landlord and the tenant and that according to the definition of the landlord, any person who is entitled to receive rent whether or not on his own account, can be treated to be a landlord.
C) Section 2(d), W.B. Premises Tenancy Act provides that apart from the owner any person who is entitled to receive rent either from his own account or somebody's account, would be treated to be a landlord. The word 'entitled' is very significant. The word 'entitled' means according to Black Law's Dictionary, "in its usual sense, to entitle is to give a right or legal title to". So the word 'entitle' cannot be construed to the effect that anybody who receives rent is entitled to collect rent and is a landlord. Mere acceptance of rent cannot clothe one with the status of landlord.
D) From the provisions of Section 25 of the said Act it has been made clear by the legislature that the rent receipt is a very important document for the purpose of proving the case of tenancy and in case the landlord refuses to grant receipt, the legislature has provided proper and effective remedy in such cases. In view of the provisions of Section 25 of the Act, it is clear that in order to claim right of a tenancy, one has to produce rent receipt and in case rent receipt was not granted, he has to satisfy the court that he had taken recourse to the provision of Section 25(2) of the said Act which provides remedy for such refusal to grant rent receipts.
E) In the matter of proof of tenancy cheques issued and encashed after termination of licence is irrelevant for nine years tendering of a cheque for Rs. 1200/-
cannot throw any light on the issue before the court. Non-production of any rent receipt coupled with the fact that the alleged tenant did not invoke Section 25(2) of West Bengal Premises Tenancy Act, 1956 goes a long way to disprove the alleged tenancy in absence of 20 production of any written agreement of tenancy. Mere occupation of a premises without payment of rent is no proof of existence of any tenancy."
Ergo, bearing in mind the proposition of law aforesaid and in the context of the findings as above, I hold that the plaintiff/respondent has not been able to substantiate his case of tenancy in the suit room.
For the foregoing reasons, the second appeal is liable to be allowed. Consequently, the judgement and decree dated March 30, 2002 passed in Title Appeal No. 175 of 2000 by the Additional District Judge, 3rd Court, Howrah is hereby set aside and the judgement and decree passed in Title Suit No. 16 of 1996 by the Civil Judge (Junior Division) 6th Court, Howrah is hereby restored.
Hence, the second appeal being SA 519 of 2006 is hereby allowed, however, there shall be no order as to costs.
Let a copy of this judgement along with the lower Courts' records be sent down to the learned Court below forthwith.
Certified website copy of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
sh ( Shivakant Prasad, J)