Calcutta High Court (Appellete Side)
Biswaranjan Maity vs Anjana Sengupta & Ors on 26 April, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
S.M.A.T. 5 of 2015
(CAN 5894 of 2015)
Biswaranjan Maity
-Versus-
Anjana Sengupta & Ors.
For the Appellant : Mr. Aniruddha Chatterjee,
Mr. Debajyoti Basu,
Mr. Manabendra Saha Roy,
Mr. Suvadip Bhattacharyya.
For the Respondents : Mr. Debasis Roy,
Mr. Debnath Mahata.
Heard on : 26th April, 2016. Judgement on : 26th April, 2016. Jyotirmay Bhattacharya, J. :-
This second miscellaneous appeal is directed against the judgement and order dated 20th May, 2015 passed by the Learned Fourth Bench, City Civil Court at Calcutta affirming the judgement and order being No. 79 dated 7th September, 2012 passed by the Learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Miscellaneous Case No. 159 of 2007, at the instance of the appellant who obstructed the execution of the decree for eviction passed against his brother viz. Dr. Chittaranjan Maity.
Let us now consider as to how far the learned Courts below were justified in passing the impugned order in the facts of the instant case.
An eviction suit being ejectment suit No.306 of 1999 was filed against the Elder brother of the appellant, namely, Dr. Chittaranjan Maity on the ground of default in payment of rent and also for subletting. The said suit was subsequently transferred to another court and on being so transferred, the said suit was re-numbered as Ejectment Suit No.1692 of 2001. During the pendency of the said suit, the said Chittaranjan Maity died and upon his death his legal heirs and representatives were substituted in the said suit. But since they did not come forward to contest the said suit, the suit was decreed ex parte on 6th September, 2005. Since vacant and khas possession was not delivered to the decree-holder in pursuance of the said decree, an execution case was levied by the decree-holder. The said execution case was registered as Ejectment Execution Case No. 2017 of 2005. Bailiff went to deliver possession of the suit property to the decree-holder but possession could not be delivered to the decree-holder as the Bailiff was resisted on 17th May, 2005. Subsequently, the decree-holder filed an application for police help for removal of the obstruction and the said application for police help is still pending for consideration before the learned Executing Court.
Immediately after the Bailiff was resisted in May, 2005, one Sri Jahar Maity being the uncle of the present appellant filed an application under Order 21 Rule 97 read with Rule 101 of the Civil Procedure Code to resist the execution of the said decree by claiming title in the suit property by way of adverse possession. The said proceeding was registered as Misc. Judicial No. 159 of 2006. The decree-holder contested the said miscellaneous case and ultimately the said miscellaneous case was rejected by the Executing Court on 28th July, 2008.
Challenging the said order of rejection of his miscellaneous case, he preferred a miscellaneous appeal before the Appeal Court and the said miscellaneous appeal which was registered as Misc. Appeal No. 2 of 2009 was again dismissed on contest by the Appeal Court on 27th August, 2009. He did not prefer any further appeal. As such, that chapter was closed with the dismissal of his miscellaneous appeal in the manner as aforesaid.
The present appellant, who is the younger brother of the judgment- debtor, has also filed a miscellaneous case under Order 21 Rule 97 read with Section 101 of the Civil Procedure Code on 13th June, 2007. He wanted to resist the execution of the said decree by contending that originally their father, namely, Panchanan Maity was inducted as a tenant in respect of the suit premises by the then owner thereof, namely, Satish Charan Law at the rate of Rs.24/- per month payable according to English Calendar month. Subsequently, the grand-son of the said Satish Charan Law namely, Lakshhmi Charan Law who inherited the suit property by way of succession sold the suit property to one Subodh Kumar Mukherjee who again transferred the suit property in favour of the present decree-holder, namely, Anjana Sengupta.
It was alleged by the appellant that his father Panchanan Maity was a tenant in respect of the suit premises during his lifetime and on his death on 19th February, 1968, the tenancy was inherited by all his legal heirs and heiresses in common. Thus, the appellant claimed to have inherited the said tenancy with his mother and his other brothers and sisters in common after the death of the original tenant, namely, Panchanan Maity. He alleged that he never surrendered his tenancy in favour of his landlord. He claimed that suppressing the tenancy of the appellant which he inherited along with his brothers and sisters in common from their father, the decree-holder filed the aforesaid suit for eviction against the elder brother, namely, Dr. Chittaranjan Maity who did not even contest the said suit as due to paucity of accommodation available in the suit premises he shifted his family from the suit premises to his own accommodation at Salt Lake.
Thus, the appellant claimed that since neither any eviction notice was served upon him nor any decree for eviction was passed against him, he cannot be evicted from the suit premises by execution of the decree of eviction passed against his elder brother. According to him, the said decree was obtained by the decree-holder in collusion with his elder brother.
The decree-holder appeared in the said proceeding and contested the same by filing objection denying the material allegations therein. The parties led evidence in support of their respective claims in the said proceeding. Ultimately, the learned Executing Court held that the applicant/appellant failed to establish his tenancy right in support of the suit premises.
Being aggrieved by and dissatisfied with the said judgment and decree of the learned Executing Court, he preferred a miscellaneous appeal before the Appeal Court.
The learned Appeal court also dismissed the said miscellaneous appeal on contest by affirming the findings of the learned Executing Court. Both the Courts below concurrently held that the applicant/appellant has failed to establish his tenancy right in respect of the suit premises.
Let us now consider as to how far the findings of the Courts below are justified in the facts of the instant case.
Here is the case where we find that the defendant produced several documents to establish that he has been staying in the suit premises all throughout. The learned Courts below after considering these documents held that those documents are simply documents of possession and those documents do not establish his right of tenancy in respect of the suit promises.
The applicant/appellant has however, produced one rent receipt being Ext. 12 issued by the original landlord, namely, Mr. Law in favour of the Panchanan Maity. The creation of tenancy by Mr. Law in favour of Panchanan Maity is not disputed. By production of rent receipt in the name of Panchanan Maity, the tenancy of the present applicant in the suit property cannot be proved. Though he claims that he was staying along with his father all throughout in the suit premises and his father died sometimes in February, 1968 still then, he could not produce any single rent receipt showing that he paid rent either to the original owner or to the transferees landlord or on their refusal, he made any attempt to deposit the rent in the office of the rent controller.
If this part of his conduct is considered, then we have no hesitation to hold that though his father was a tenant in respect of the suit premises but on the death of his father, he never made any attempt to exercise his right of tenancy in the suit premises since February, 1968. The elder brother of the applicant, namely, Dr. Chittaranjan Maity claimed that though the tenancy was in the name of the father but he paid rent right from 1941 from his own pocket and also started paying rent in his own name since 1973. The rent receipt stands in the name of Dr. Chittaranjan Maity. Grant of such rent receipt in the name of Dr. Chittaranjan Maity was never objected to by any of his brother and sisters including the present appellant/applicant.
If this part of the conduct of the other brothers and sisters including the present applicant/appellant is considered then it goes without saying that all the brothers and sisters accepted that the elder brother viz. Dr. Chittaranjan Maity was the real tenant of the suit premises and the tenancy of the other brothers and sisters was impliedly surrender.
As such, we hold that the learned Courts below did not commit any illegality in rejecting the miscellaneous case filed by the present applicant/appellant.
Before parting with, we like to mention here that the suit premises comprises of two bed rooms, one kitchen, one bath, one privy and a varanda situated at Bidhan Sarani in the heart of the city and the rent payable for such tenancy was Rs.24/- which was subsequently enhanced to Rs.93.94/- only.
Occupation of such a self contained flat in the heart of the city on payment of such a meagre amount on account of rent prompted the appellant to file such a vexatious litigation for prolonging their unauthorized stay in the suit premises by filing successive applications one by uncle claiming adverse possession in the premises another by the one brother claiming tenancy in the said premises and god knows how many applications are still awaiting because the applicant/appellant has four and five more brothers and sisters, who may come forward to help the appellant to stay there for another fifty years in the suit premises.
In addition to this it may be mentioned herein that the applicant/appellant has already purchased a flat at Bediadanga in Kolkata and has shifted to his newly acquired premises.
With these observations, we hold that the appeal deserves no merit for consideration.
We thus, decline to admit this appeal.
Accordingly, the appeal is, thus, dismissed.
Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application.
The application for stay being CAN 5894 of 2015 is thus, deemed to be disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J) (Ishan Chandra Das, J)