Calcutta High Court (Appellete Side)
Smt. Sanghati Bhattacharjee (Mitra) & ... vs Mohammad Hasem Khan & Anr on 25 November, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form J(2) IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
S. A. 283 of 2002
Smt. Sanghati Bhattacharjee (Mitra) & Ors.
-Vs.-
Mohammad Hasem Khan & Anr.
For the Appellants : Mr. Dilip Kumar Chatterjee,
Mr. Partha Pratim Roy,
Mr. Sagnik Chatterjee.
For the Respondent No.1 : Mr. Bhaskar Ghosh, Sr.Adv.
Mrs. Sulekha Mitra
Mr. Saurav Sen, Adv.
Heard & Judgement on : 25.11.2019
Bibek Chaudhuri, J.
This is an appeal filed by the original defendant Nos.2 to 4 (hereinafter described as the appellant) assailing the judgment and decree passed by the First Court of Appeal being the learned Additional District Judge, 1st Court at Burdwan in Title Appeal No.4/3 of 1997 affirming the judgment and decree passed by the learned Assistant District Judge, 1st Additional Court, Burdwan in Title Suit No.134 of 1988, subsequently renumbered as Title Appeal No. 106 of 1994.
It is apparent to mention at the outset that the learned Trial Judge by her judgment and decree passed in Title Suit No. 106 of 1994 held the defendant No.1 as defaulter in payment of rent; secondly the defendant No.1had sublet the suit premises in favour of defendant Nos. 2 to 4; and thirdly, the plaintiff/ respondent required the suit premises reasonably for his own use and occupation for the purpose of setting up and extending his existing laundry business.
In appeal, however, the learned Judge in 1st Appellate Court held that the defendant No.1 had defaulted in payment of rent. However, the learned First Appellate Court refused to concurrent with the finding made by the learned Trial Judge to the effect that the defendant Nos.2 to 4/ appellants were sub-tenants under defendant No.1. On the other hand, it was held by the learned First Appellate Court that there was no relation of landlord and tenant between the plaintiff and defendant Nos. 2 to 4 and they are nothing but the trespassers in respect of the suit premises. Accordingly, the defendants/appellants were liable to be evicted. The learned Judge in First Appellate Court further held that when the learned Trial Court found the said defendants/appellants sub-tenants in respect of the suit premises and defaulters in payment of rent, there was no necessity to discuss and decide the issue as to whether the suit premises was reasonably required by the plaintiff/respondent or not.
The defendant Nos. 2 to 4 as appellants have assailed the said judgment passed by the learned First Appellate Court before this Court in Second Appeal.
It is found from the order book that the instant appeal was admitted for hearing on substantial question of law enumerated in grounds No.2, 7 and 10 and the added grounds taken in the memorandum of appeal filed by the appellant. The said substantial questions of law are quoted below:-
"1. For that the learned First Appellate Court did not at all go to the rest of the disputed questions of law and fact while decreeing the suit by confirming the judgment and decree of the learned Trial Court.
2. For that the findings of the learned First Appellate Court regarding the status of the defendants No.2 to 4 appellants that they have no right to occupy the suit premises under the plaintiff/respondent is absolutely erroneous being based on surmise and conjectures.
3. For that the learned First Appellate Court erred in not considering the material documents and also in material evidence while confirming the decree of the Trial Court in passing the judgment mainly surmise, conjectures and irrelevant circumstances.
4. For that the learned First Appellate Court erred in passing a decree for eviction against the appellants in a suit for eviction on the ground of default, sub-letting and reasonable requirement though the Court below found that the appellants are neither tenants nor sub-tenants but trespassers which is beyond the scope of eviction of a tenant under the West Bengal Premises Tenancy Act ;
5. For that the learned Court below erred in maintaining the decree for eviction against the appellants though the Court below differed with the findings of the learned Trial Court and that too by a piecemeal consideration and without considering the dispute involved in this appeal as a whole."
For proper disposal of the instant appeal, let me now consider the "real dispute between the parties":- The plaintiff/respondent became the owner of plot No.114 of Mouza-Radhanagar comprise in Khatian No.360, measuring about one Cottah 4.75 Chittaks land with structure at Mouza Radhanagar within Burdwan Municipality by virtue of a registered deed of sale dated 8th April,1982 which was executed by its erstwhile owner, named Birendralal Singha Ray on 22nd March, 1982.
One Biswanath Mitra, original defendant No.1 was the tenant in respect of the suit premises at a monthly rental of Rs.45/- payable according to English calendar month under the said Birendralal Singha Ray. After purchase, the original defendant No.1 became the tenant under the present respondent. Previous landlord sent a letter of attornment to the original defendant No.1 informing him about the sale of the suit premises in favour of the present respondent and further requesting the original defendant No.1 to pay rent to the respondent. However, the defendant No.1 never paid rent to the present respondent. It is also alleged by the respondent as plaintiff that the defendant No.1 had sub-let and / or assigned and / or parted with possession of the suit premises in favour of defendant Nos. 2 to 4 / appellants herein. Further pleading of the plaintiff /respondent is that he reasonably required the suit premises for setting up and extension of his laundry business. Accordingly, the respondent sent eviction notice to the defendant No.1 with copy to the defendant Nos. 2 to 4 requiring him to quit, vacate and deliver peaceful possession of the suit premises by the end of July, 1988. In spite of receipt of the said notice, the defendants failed to deliver peaceful possession of the suit premises in favour of the plaintiff/respondent. So, the respondent instituted the suit for eviction of the defendants, recovery of khas possession and other consequential reliefs.
The defendant No.1 did not contest the suit by filing any written statement. However, the defendant Nos. 2 to 4 contested the suit by filing written statement wherein they denied all material allegations made out by the plaintiff/respondent against them. Specific case of the contesting defendants is that the defendant No.1 and the contesting defendants were joint tenants in respect of the entire premises at a monthly rental of Rs.50. As mutual arrangement the original landlord used to issue rent receipt in the name of the defendant No.1 alone but all through defendant Nos. 2 to 4 used to pay Rs.25 per month, being half of the rental amount to the defendant No.1 as rent for their stay in the suit premises. In 1983 the defendant No.1 permanently left the suit premises delivering possession of the first floor of the same to the original landlord Birendralal Singha Ray. Subsequently, on the prayer of the present defendants/appellants rate of rent was reduced to Rs.40 per month. The original landlord accepted rent from defendant Nos. 2 to 4 for the months of February, 1983 to June, 1983 at reduced rate of rent, but did not issue any rent receipt in favour of the appellants. It is further pleaded by the appellants that prior to defendant No.1, one Kalipada Mitra being the eldest brother of the defendant No.1 was the original tenant. He died in the year 1960 and after his death tenancy was transferred in the name of the second brother of original defendant No.1 Kantilal Mitra, since deceased. After the death of Kantilal Mitra rent receipt was issued in the name of the original defendant No.1 Biswanath Mitra though the defendants are all along residing in the suit premises. Thus, the appellants tried to make out a case to the effect that they inherited the tenancy from their father Kalipada Mitra who was allegedly the original tenant in respect of the suit premises. All other allegations of default in payment of rent, sub-letting and reasonable requirement were specifically denied by the appellants. Upon pleadings of the parties the trial Court framed as many as eleven issues. The issues framed by the trial Court are set out herein below:-
"(1) Had the plaintiff any cause of action to file this suit? (2) Is the suit maintainable in its present form?
(3) Is the suit premises required for own use and occupation of the plaintiff? (4) Has the plaintiff any alternative reasonably suitable accommodation? (5) Was the notice of ejectment properly served upon the defendants? If so, was the notice valid and legal?
(6) Is the plaintiff entitled to get a decree for eviction as prayed for?
(7) Is the plaintiff entitled to get a decree for mesne profit?
(8) To what other relief is the plaintiff entitled under Law & Equity?
(9) Has the defendant No.1 sub-let the suit premises to defendants nos. 2 to
4 without the consent of the landlord?
(10) Is the defendant no.1 a defaulter in payment of rent?
(11) Is there any relationship of landlord-tenant in between the plaintiff and defendant nos. 2 to 4?"
Parties laid evidence in support of their respective cases. It is important to record that though the defendant No.1 did not contest the suit by filing written statement, he deposed in favour of the contesting defendants as D.W.3. On the basis of the evidence on record the trial Judge held that the defendant No.1 was a defaulter in payment of rent, the defendant Nos. 2 to 4 are sub-tenants in respect of the suit premises and the plaintiffs/respondents reasonably required the suit premises for commercial purpose to set up the modern laundry business installing machines of dry cleaning of clothes and expansion of his business.
The learned Court of Appeal, on the other hand, disposed of the appeal with the following observations:-
"After considering the evidence on record I am of the opinion that the defendant nos. 2-4 have failed to produce any documentary evidence to prove that they are tenants in the suit premises from the time of their father and uncle since the year 1960. I find, the defendant no.1 Biswanath Mitra deposed as D.W.3 that he is no more a tenant in the suit premises and he does not want to occupy the same. Therefore, I am of the opinion that the case of the plaintiff has been supported by the evidence of the D.W.s. that Biswanath Mitra is no longer a tenant in the suit premises and the defendant nos. 2-4 took possession in the suit premises through Biswanath Mitra without the knowledge and consent of the landlord when they have failed to produce any document to prove their case that they have continued their tenancy through their predecessor-in-interest since 1960. Therefore, I hold any further opinion that when the defendant nos. 2-4 who are the appellants in the present appeal have failed to prove their case that they are tenants in the suit premises under the landlord and when no relationship as landlord and tenant has been established between the present plaintiff or his predecesor-in-interest and the defendant nos. 2-4 in the suit premises, the said defendants i.e., the present appellants shall be deemed as tres-passer in the suit premises and not the tenants therein and they will not get the benefit of W.B.P.T. Act, 1956."
Mr. Partha Pratim Roy, learned advocate for the appellants submits before me that the learned Judge in First Appellate Court clearly held that the respondent failed to prove that the present appellants are sub-tenants under the original tenant being defendant No.1. After coming to such finding the learned Judge in First Appellate Court held that the appellants are tres-passers in respect of the suit premises and accordingly, they are liable to be evicted. On such finding the learned Judge in First Appellate Court dismissed the appeal on contest. It is contended by Mr. Roy that the respondent instituted the suit under various provisions of Section 13 of the West Bengal Premises Tenancy Act, 1956. Existence and proof of any one of the grounds envisaged under Section 13 of the West Bengal Premises Tenancy Act, 1956 (hereinafter described as the said Act) is a sine qua non for passing an eviction decree. The jurisdiction of the Court under Rent Control Act to try eviction suit is limited to the grounds specified therein only. When the First Appellate Court came to a finding that the respondent failed to prove landlord and tenant relationship between himself and the appellants it had no jurisdiction to hold that the appellants were tres-passers and, therefore, liable to be evicted. In a suit under Rent Control Act, the Civil Court cannot grant equitable relief under Order VII Rule 7 of the Code of Civil Procedure on the basis of title of the plaintiff in absence of the landlord tenant relationship. In support of his contention Mr. Roy refers to a decision of the Hon'ble Supreme Court in the case of Tribhuvanshankar versus Amrutlal reported in (2014) 2 SCC 788. On the same question, he also refers to another decision of the Hon'ble Supreme Court in Biswanath Agarwalla versus Sabitri Bera and others reported in (2009) 15 SCC 693.
It is further contended by Mr. Roy that the respondents did not prefer any cross- objection or cross-appeal against the finding of the learned First Appellate Court under the provision of Order XLI Rule 22 of the Code of Civil Procedure. Unless a cross-objection be filed by the respondent, this Court is not in a position to reverse the finding of the learned First Appellate Court and the decree which was passed in favour of the respondents cannot be sustained under the provision of West Bengal Premises Tenancy Act in the absence of any grounds of eviction envisaged under Section 13 of the said Act.
Mr. Bhaskar Ghosh, Learned Senior Counsel, on behalf of the respondent No.1, on the other hand, submits that the First Appellate Court has undoubtedly committed substantial error in law in holding the defendant/appellant a trespasser in respect of the suit premises and dismissed the appeal affirming the judgement and decree passed by the Trial Court. Mr. Ghosh is in agreement with the legal provision as submitted by Mr. Ray, Learned Advocate for the appellant that in a suit under Rent Control Act, defendant can only be evicted on establishing of any of the grounds stipulated under the Act for eviction. In a rent suit, the Court cannot hold the defendant a trespasser and pass a decree against him on the basis of title of the landlord. In support of his contention, Mr. Ghosh, refers a Full Bench decision of the Hon'ble Apex Court in the case of Bhagawati Prasad-vs.-Chandra Maul reported in 1966 SC 735. It is held in the said decision that in order to ascertain whether a particular relief has been claimed or not, the Court must have rigour to all the relevant allegations made in the plaint and the substance of the matter and the form.
With this introduction, it is pointed out by Mr. Ghosh that the learned Trial Judge while deciding the issue as to whether the original tenant had subletted the suit premises or not, clearly came to the finding on the basis of the pleadings of the parties as well as the evidence on record that the present appellants were unauthorised sub-tenants and, therefore, they are liable to be evicted. The learned Lower Appellate Court held, on the other hand, that landlord-tenant relationship between the plaintiff and defendant nos. 2 to 4 was not established and as the defendant nos. 2 to 4 were in possession of the suit premises, they ought to be treated as trespassers. Mr. Ghosh has urged that such finding of the Lower Appellate Court is absolutely wrong and contrary to the established principles of law determining adjudication of a suit under the Rent Act.
At this stage, the question that, inter alia, arises for adjudication is as to whether the decree passed by the Trial Court against the appellants and affirmed by the First Appellate Court, though not on the same ground as it was held by the learned Trial Court, the impugned judgement is required to be set aside, meaning thereby dismissal of the suit filed by the respondent.
I have already recorded that the respondent as plaintiff instituted the suit for eviction and recovery of khas possession under Section 13 of the West Bengal Premises Tenancy Act, 1956 on the grounds of default, subletting and reasonable requirement. In the written statement the appellants clearly admitted that the landlord used to issue rent receipt in favour of defendant no. 1, Biswanath Mitra. The said Biswanath Mitra did not contest the suit. The appellants being the defendant nos. 2 to 4 contested the suit by filing written statement. In the said written statement they have clearly pleaded that as per mutual understanding, Biswanath Mitra, the original tenant used to reside on the first floor and defendant nos. 2 to 4 used to reside on the ground floor of the suit premises and for their residence, they used to pay rent at the rate of Rs. 25 per month to defendant no. 1, being the original tenant. It is also clearly pleaded that the defendant no. 1 permanently left the suit premises sometime in 1983.
It is needless to say that two ingredients must be established in order to prove subletting - parting with possession by the tenant in favour of the sub-tenant against the knowledge and permission of the landlord and secondly, some consideration therefor. It is no longer res integra at present that since subletting is a clandestine arrangement between the tenant and the sub-tenant, it is not always possible to produce direct evidence of payment of rent by the sub-tenant to the tenant. Such condition can be inferred from surrounding circumstances, like exclusive possession of the said premises by the sub-tenant, permanent departure of the tenant from the tenanted premises without retaining any control over the tenancy etc. In the instant case, it is admitted that defendant no. 1 permanently left the suit premises in 1983. The appellants failed to establish any relationship of landlord and tenant between them and the respondent. On the other hand, the appellants clearly admitted that they used to pay rent to defendant no. 1 at the rate of Rs. 25 per month for their exclusive possession of the suit premises. In view of such evidence, this Court has no other alternative but to hold that there cannot be no alternative finding than creation of sub-tenancy by defendant no. 1 in favour of the appellants.
For the reasons stated above, this Court is of the view that the learned Trial Judge was perfectly correct in holding the appellants sub-tenants in respect of the suit property which was created by the defendant no. 1, being the original tenant.
Under such circumstances, the appellants are liable to be evicted from the suit premises.
Substantial questions of law stated in grounds no. 2, 4 and 5 are, accordingly, decided against the appellants.
Before I part with, I am duty bound to record that the Learned Lower Appellate Court substantially erred in law while arriving at a decision that when the appellants were held to be trespassers, it was not necessary for the Trial Court to discuss in detail the issue relating to reasonable requirement. I failed to appreciate as to whether the learned Trial Judge had any occasion to deal with any appeal under the West Bengal Premises Tenancy Act, 1956. When a suit for eviction is instituted agitating certain grounds for eviction and when such grounds are denied by the defendant/tenant, issues are raised. The issues in a suit for eviction under Rent Control Act relate to existence of one or more grounds of eviction or not. Th learned Judge in First Appellate Court failed to appreciate that he was under legal obligation to adjudicate the issue as to whether the plaintiff reasonably required the suit premises or not. On this score also the Lower Appellate Court's judgement cannot be sustained. Again this question will come up for consideration as to whether in view of such judgement and decree delivered by the First Appellate Court affirming otherwise correct and lawful decree by the trial Court should be set aside for subscribing wrong and unlawful reason in support of his judgement.
Considered view of this Court must be in the negative. In support of my observation I can profitably refer to the provision of Order XLI Rule 33 of the Code of Civil Procedure. Order XLI Rule 33 runs thus:-
"33. Power of Court of Appeal- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."
This provision empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made as the case may require notwithstanding the fact that no appeal is preferred against the impugned judgement. So far as the case of reasonable requirement it is sufficient to note that the respondent reasonably required the suit premises for setting up a modern drying cleaning shop and extension of his laundry business. By adducing evidence the respondent was able to prove that he already is in laundry business and he runs two shops under the name and style of "Tip Top" and "Band Box Drying and Cleaning". The said fact was admitted by the appellants. The learned Trial Judge on careful consideration of entire evidence on record found that the respondent reasonably required the suit premises. She duly considered the Commissioner's Report (Exhibit-B) and found that the suit premises comprising of three ground floor rooms can be well used by the appellant for keeping his laundry business articles including clothes and garments. If a businessman wants to extend his business using the tenanted premises for commercial purpose for augmentation of his income, such requirement cannot be stated as fanciful requirement.
Learned Lower Appellate Court ought to have decided as to whether the judgement passed by the learned trial Judge suffers from any illegality, either on fact or law. The Lower Appellate Court refused to discharge his duty. Therefore, this Court sitting in second appeal had to consider and examine the judgement passed by the trial Court holding, inter alia, that the respondent reasonably required the suit premises.
This Court has carefully gone through the judgement delivered by the trial Judge. This Court also independently considered the evidence on record and does not find any scope to hold a contrary view from what had been decided by the learned Court of Trial.
All other substantial questions of law are accordingly decided against the appellants. In view of the above discussion, I do not find any merit in the instant appeal and the appeal be and the same is dismissed on contest, however without any cost. Judgement and decree passed by the trial Court in Title Suit No.106 of 1994 (previously numbered as 134 of 1988) is affirmed. The appellants are directed to quit, vacate and deliver up peaceful possession of the suit premises within 60 days from the date of this judgement, failing which the respondent is at liberty to put the decree passed by the learned trial Court in the aforesaid suit in execution.
Let a copy of this judgement along with the lower Court records be sent down to the Court below forthwith.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Bibek Chaudhuri, J)