Calcutta High Court (Appellete Side)
Mst. Rokia Bibi & Ors vs Amrita Kumar Jana on 15 March, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
S.A. No.385 of 2006
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Mst. Rokia Bibi & ors.
Versus
Amrita Kumar Jana.
For the appellants: Mr. Shyamal Kumar Chakraborty,
Mr. Swarup Kumar Ghosh,
Mr. Samsul Alam Khan.
For the respondent: Mr. Subhas Chandra Karar,
Mr. Surajit Roy.
Heard On: 01.03.2012 & 02.03.2012.
Judgement On: March 15, 2012.
Prasenjit Mandal, J.: This second appeal is at the instance of the plaintiffs and is directed against the judgment and decree dated January 8, 2004 passed by the learned Civil Judge (Senior Division), Ghatal in Title Appeal No.13 of 2000 thereby reversing the judgment and decree dated April 24, 2000 passed by the learned Civil Judge (Junior Division), Ghatal in Other Suit No.117 of 1996.
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The plaintiffs/appellants instituted a suit for eviction, recovery of possession, mesne profits against the defendant/respondent in respect of the premises in suit as described in the schedule of the plaint on the ground of default, reasonable requirement, nuisance, etc. before the learned Civil Judge (Junior Division), Ghatal.
The defendant/respondent contested the said suit by filing a written statement denying the material allegations raised in the plaint.
Upon hearing both the sides, the learned Trial Judge dismissed the suit. The plaintiffs/appellants preferred an appeal and the said appeal was allowed by the Appellate Court by passing an order of remand with a direction upon the learned Trial Judge to give opportunities to the parties to adduce further evidence, to hold a local inspection etc. After complying with the directions by the Appellate Court, the learned Trial Judge decreed the suit on contest against the defendant by the order dated April 24, 2000. Being aggrieved, the defendant/respondent preferred an appeal being Title Appeal No.13 of 2000 and the said appeal was allowed on contest with cost.
Being aggrieved by such judgment and decree of the First Appellate Court, the plaintiffs/appellants preferred this Second Appeal.
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At the time of admission of the Second Appeal, the following substantial questions of law were framed for decision:-
I. In view of the earlier order of remand accepting the relationship of landlord and tenant between the parties, whether the learned court of appeal below committed substantial error of law in holding that the tenant has constructed the building at his own cost and as such the suit is not maintainable;
II. In view of the admitted fact that defence against delivery of possession has been struck out by the learned trial Judge after remand and such finding having been approved by the learned first appellate court below, whether the said court of appeal below committed substantial error of law in dismissing the suit on the ground of non-application of the West Bengal Premises Tenancy Act;
III. One of the grounds for eviction being default in payment of rent and the defence against delivery of possession having been struck off, whether the learned court of appeal below committed substantial error of law in not passing a decree at least for the ground of default in payment of rent.4
Upon hearing the learned Advocates for the parties and on perusal of the materials on record, I find that admittedly, the plaintiffs / appellants filed the said suit for ejectment on the ground of default, reasonable requirement, damage, nuisance, etc. against the defendant / respondent. It is the clear statement of the plaintiffs that the premises in suit along with other properties belonged to "Buro Pir Saheb". While the original plaintiff was one of the Mutawallis of the properties belonging to "Buro Pir Saheb", by an amicable arrangement amongst the Mutawallis, the premises in suit along with other properties was allotted to the original plaintiff / mutawalli and thus, he became the exclusive owner thereof under "Buro Pir Saheb". The clear case of the plaintiff is that out of his own fund, he constructed the premises in suit and he was in occupation of the same on payment of rent and taxes and a separate holding was created in his name in the Ghatal Municipality.
Although, the defendant has denied that the original plaintiff had constructed the premises in suit, he has admitted in his written statement that he is a tenant in respect of the premises in suit at a rental of Rs.101/- per month payable according to Bengali Calendar Month w.e.f. Magh, 1400 B.S. There is no dispute that the defendant paid/deposited monthly rent to the plaintiff up to the month of Baishakh 1404 B.S. against proper receipts. The plaintiff contended in the plaint that the 5 defendant was a defaulter in payment of rent w.e.f. Asharh 1402 B.S. and he violated the terms of agreement, such as, the premises in suit was rented to him for residential purposes, but he started business thereon on heavy motor and tractor parts and on building materials, such as, bricks, cement, chips, sand, etc. There is no dispute that an agreement for tenancy was executed by the parties in respect of the premises in suit (vide Ex. B). So, from such settled position of fact and law there is no dispute that the defendant was going to be inducted as a tenant under the plaintiff in respect of the premises in suit according to Bengali Calendar Month and that the land was vacant at the time of execution of the agreement Exhibit No. B. Having considered the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that the learned Trial Judge has framed the following issues for decision:-
1. Is the suit maintainable in its present form and prayer?
2. Is the suit bad for defect of parties?
3. Is the suit, hit U/s. 34 of the Specific Relief Act?
4. Is the notice U/s. 13(6) of the W.B.P.T. Act valid, legal and binding upon the defendant?
5. Is the defendant liable for eviction for the grounds stated in the plaint?6
6. Is the plaintiff entitled to have the decree as prayed for?
7. To what other reliefs, if any, is the plaintiff entitled?
After appearance in the suit, the defendant filed an application under Sections 17(2) & (2A) of the West Bengal Premises Tenancy Act. That application was disposed of on November 29, 1996 directing the defendant to pay the arrears of rent within a specified period and this happened before the order of remand by the First Appellate Court. So the findings of the learned Trial Judge on the application under Section 17(2) of the 1956 Act remained unaltered by the First Appellate Court.
As per materials on record, the learned Trial Judge disposed of the application under Sections 17(2) & (2A) of the West Bengal Premises Tenancy Act, 1956 directing the defendant to pay arrears of rent and the defendant has complied with such directions by making deposits in the Court by way of challans (Ex. C series).
The defendant had also deposited current rent month by month in the Court by Exhibit No.s C to C/8.
As per materials on record, after remand of the suit for fresh trial, the defendant / tenant was required to pay or deposit the amount equivalent to rent in the Court. As per record, the defendant failed to deposit the rent from the month of Jaistha, 1404 B.S. up to date. Nor did he comply with the provisions of 7 Sections 17(1) of the West Bengal Premises Tenancy Act after remand. Accordingly, the plaintiff filed an application dated August 30, 1999 under Section 17(3) of the said 1956 Act which was allowed on April 5, 2000 meaning thereby the defence against the delivery of possession had been struck out. The First Appellate Court has affirmed such findings. So the stance of the defendant that he had constructed the building at his cost and as such, the suit is not maintainable, falls through.
Upon analysis of evidence on record, the learned Trial Judge has came to the conclusion that the notice to quit had been duly served upon the defendant / tenant. The First Appellate Court has come to the same conclusion that the notice to quit had been duly served upon the defendant / tenant and that there is no infirmity in this regard as held by the learned Trial Judge. Thus, I find that both the Courts below have come to the same conclusion as to the service of legal and valid notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. So, such concurrent findings of fact should not be set aside in the second appeal. The Issue No.6 has been rightly decided by the Courts below concurrently.
Mr. Shyamal Kumar Chakraborty, learned Advocate for the appellants has submitted that at present the defendant / tenant is challenging the ownership of the plaintiff in respect of the suit premises. But, in view of the admission of the defendant, 8 particularly, after his payment/deposit of rent for the said premises, a tenant cannot challenge the title of the plaintiff to the premises in suit in view of the provisions of Section 116 of the Indian Evidence Act.
In support of his contention, Mr. Chakraborty has referred to the decisions of Minor-Nantu Bag & anr. v. Smt. Rasana Bala Dasi & ors. reported in 2000 (2) CHN 378, Jiban Roy Choudhury v. Sm. Taramoyee Debi reported in 1979(1) CLJ 481, Tapan Kumar Shaw & anr. v. Nawab Dutta reported 2000(2) CHN 291 and Swadesh Ranjan Sinha v. Haradeb Banerjee reported in (1991) 4 SCC 572 and thus, he submits that as per the above decisions, Section 116 of the Indian Evidence Act and the agreement between the parties to the suit, the plaintiff comes with the definition of landlord as made in Section 2(d). He has also drawn my attention to the observations made by the learned Trial Judge on the issue of maintainability of the suit as held by the Courts below. Thus, Mr. Chakraborty submits that the impugned judgment and decree cannot be supported.
Mr. Chakraborty also submits that the learned First Appellate Court was totally wrong in deciding that there was no relationship of landlord and tenant between the parties and that the provisions of the West Bengal Premises Tenancy Act could not be made applicable in the instant suit.
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On the other hand, Mr. Subhas Chandra Karar, learned Advocate appearing for the opposite party submits that suit is not maintainable at all in view of the provisions of Section 85 of the Wakf Act, 1995. He submits that original plaintiff has admitted in his plaint that the premises in suit belonged to "Buro Pir Saheb" and he is a mutawalli of the premises in suit along with other properties. So, the property belongs to Wakf and according to the provisions of Section 85 of the Wakf Act, any dispute relating to Wakf, Wakf Board or any other dispute relating to that matter shall be tried by a Wakf Tribunal and so, the Civil Court has no jurisdiction to deal with the matter.
In support of his contention, Mr. Karar has referred to the provisions of Section 85 of the Wakf Act, 1995 and in support of his contention he has referred to the decisions of Ram Sarup Gupta (dead) by L.R.s v. Bishun Narain Inter College & ors. reported in AIR 1987 SC 1242, Altyathammada Beethathabiyyapura Pookoya Haji v. Pattakkal Chertyakoya & ors. reported in AIR 2003 Kerala 366 and Wakf Imambara Imlipura, Khandwa v. Smt. Khursheeda Bi & ors. reported in AIR 2009 MP 238 and thus, he submits that since this is a pure question of law, it can be raised at any time even in the second appeal and so, the Civil Court has no jurisdiction according to the provisions of Section 85 of the said Act. Thus, he supports the judgment and decree passed by the First Appellate Court.
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For convenience, the provisions of Section 85 of the Wakf Act is quoted below:-
"85. Bar of jurisdiction civil courts. - No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal."
Above all, from the materials on record and my earlier findings, I find that the defence against the delivery of possession had been struck out for non-compliance of the Section 17(1) of the 1956 Act after remand, and so, the contention of the defendant that the plaintiff cannot be described as landlord in respect of the premises in suit cannot be entertained.
Having regard upon such position, the First Appellate Court was not justified at all in dismissing of the suit on the ground of non-application of the West Bengal Premises Tenancy Act.
The learned First Appellate Court has come to the conclusion that the provisions of 1956 Act would not apply in the instant case because no premises in suit as per definition of Section 2(f) of the 1956 Act was let out to the defendant and only vacant possession of the land was given to the defendant and then, he made construction thereon on the failure on the part of the plaintiff to make construction thereon, though he took an advance 11 of Rs.7,000/- at the initial stage. Whatever may be the other terms and conditions of the agreement Exhibit B, the parties are bound by the admissions made by them in the suit. It is the specific admission of the defendant that he is a tenant under the plaintiff in respect of the premises in suit at a rental of Rs.101/- per month payable according to the Bengali Calendar Month w.e.f. Magh 1400 B.S. It has also been proved by the documentary evidence that the defendant paid/deposited rent in the Court for the premises in suit up to Baishakh, 1404 B.S. So, the defendant has no scope to deviate from such admission. Whatever the money, the defendant might expend, that may be considered as dues from the plaintiff to the defendant and that amount might be recovered by the defendant from the plaintiff in accordance with law. But, that is a separate issue and for that reason the defendant cannot be termed that he is not at all a tenant under the plaintiff in respect of the premises in suit. So, the learned First Appellate Court has committed an error of law in holding that the defendant had constructed the building at his own cost and as such, the suit is not maintainable under the provisions of 1956 Act. The suit is, therefore, quite maintainable in its present form and law.
So far as the Issue No.1 is concerned, the learned Trial Judge has recorded that at the time of argument, this issue (maintainability point) has not been pressed before this Court. In fact, this issue has been abandoned by the learned Advocate at 12 the time of argument and thus, he has concluded that the suit is very well maintainable in its present form both in fact and law. So, the issue is decided in favour of the plaintiff.
The learned First Appellate Court has supported the said findings as no question of maintainability was urged before him on the ground that the premises in suit is of Wakf property. The learned First Appellate Court did not record anything that the suit is not maintainable in view of the Section 85 of the Wakf Act. Thus, it indicates that this ground was not also pressed in the Court of First Appeal and the learned First Appellate Court did not record anything contrary to the observations made by the learned Trial Judge in respect of Issue No.1 save the fact that the premises in suit does not come within the definition of premises under Section 2(h) of the 1956 Act and so, the suit is not maintainable.
Thus, I find that both the Courts below have concurrently held that the suit in its present form is quite maintainable in spite of the fact that the plaintiff has stated in the plaint that the suit property belonged to "Buro Pir Saheb".
Since, the relationship between the parties has been settled at the time of disposal of the application under Sections 17(2) and (2A) of the 1956 Act and thereafter, the application under Section 17(3) was allowed by the learned Trial Judge and the same matter was heard before the higher Forum and the higher Forum has 13 confirmed the findings of the learned Trial Judge on the point of Section 17(3) of the 1956 Act, the question whether the premises in suit comes within the definition of premises as defined under Section 2(f) cannot be a matter of consideration at present. So far as the decisions referred to by Mr. Karar, I find that in those cases, the Wakf Board filed the suit for recovery of possession after evicting the defendant / tenant from the respective premises in the suits. But, in the instant case, the Wakf Board has not come into picture at all, rather as per admission of the defendant, the relationship of landlord and tenant between the plaintiff and the defendant is an admitted fact. So, the decisions referred to by Mr. Karar cannot have any application in the present situation. Therefore, the First Appellate Court has committed errors of law in dismissing the suit on the ground of non-application of the provisions of 1956 Act.
Mr. Karar has next referred to the ground of reasonable requirement by contending that since the two sons of the plaintiff are engaged in business in Bombay as per evidence of record, the plaintiff does not require the premises in suit for own use and occupation.
As the defence against the delivery of possession has been struck out, the plaintiff is not required to prove any of the grounds as enumerated in Section 13(1) of the West Bengal Premises Tenancy Act, 1956. The plaintiff is entitled to get a decree for 14 recovery of possession against the defendant in respect of the suit premises and other reliefs provided he has complied with the provisions of Section 13(6) of the 1956 Act.
All the three substantial questions of law as framed earlier are, thus, answered in favour of the appellants. The learned First Appellate Court has, therefore, committed errors of law in reversing the judgment and decree passed by the Trial Court and so, the impugned judgment and decree cannot be supported. The judgment and decree passed by the learned Trial Judge have been rightly recorded on appreciation of the evidence on record and they, I hold, should be affirmed..
The second appeal, therefore, succeeds. It is, therefore, allowed. The judgment and decree of the First Appellate Court are hereby set aside and the judgment and decree dated April 24, 2000 passed by the learned Trial Judge in Other Suit No.117 of 1996 are hereby affirmed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)