Calcutta High Court (Appellete Side)
Sri Utpal Roy & Anr vs Ratul Krishna Banerjee & Anr on 17 August, 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.A.T. 249 of 2016 (CAN 6152 of 2016) Sri Utpal Roy & Anr.
-Versus-
Ratul Krishna Banerjee & Anr.
For the Defendants/ : Mr. S.P. Mukherjee,
Appellants Ms. Debabeena Mukherjee,
Mr. Shuvajit Bose.
For the Plaintiff Caveator/: Mr. Sabyasachi Bhattacharyya, Opposite Party Ms. Shohini Chakraborty.
Heard on: 17th August, 2016. Judgement on: 17th August, 2016. Jyotirmay Bhattacharya, J. :-
The certified copy of the judgement and decree of the learned Trial Court which is filed in Court today, be kept with the record.
With regard to the payment of court fees, we find from the decree of the Trial Court that the suit was valued at nil and only court fees of Rs. 10/- was paid by the plaintiff. The present appeal is also valued at nil. Court fees of Rs. 10/- has also been paid on the memorandum of appeal. Though we find that the suit was not properly valued and sufficient court fees was not paid thereon but the courts below considered the said suit and/or the appeal arising therefrom on merit by overlooking the erroneous valuation of the suit and/or non-payment of proper court fees thereon.
Be that as it may, since no issue was raised at the instance of the defendants/appellants regarding non-maintainability of the suit due to payment of insufficient stamp and/or defective valuation of the suit, this Court cannot permit the defendants/appellants to raise this point for the first time in the second appeal.
As such, we accept the valuation statement made by the appellants in this appeal as correct and accept the court fees, which is paid thereon as sufficient.
Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.
This second appeal is directed against the judgement of affirmance. The learned Trial Court was pleased to pass a decree for eviction against the tenant on the ground of unauthorised change of user of the tenancy in question by the tenant. The learned First Appellate Court however, maintained the said decree for eviction on a different ground. The learned appeal court held that the defendants are no longer a tenant in respect of the suit premises in view of the provision contained in Section 2(g) of the West Bengal Premises Tenancy Act, 1997 and as such, they are not entitled to get any protection against eviction under the said Act particularly when they have admitted the title of the plaintiff in respect of the suit premises.
The legality and/or propriety of the said judgement and decree of the learned First Appellate Court is under challenge in this appeal at the instance of the defendants/appellants.
Let us now consider as to how far the learned First Appellate Court was justified in passing the decree in the facts of the present case.
Our attention has been drawn by Mr. Mukherjee, learned advocate appearing for the appellants to the ejectment notice, plaint and deposition of the plaintiff's witness to demonstrate that the plaintiffs accepted the defendants as tenant in common who inherited their tenancy on the death of their predecessor-in-interest being the original tenant in the suit property. We find that acceptance of the defendants as tenant-in-common in respect of the suit premises has not only been recognised by the plaintiff in the plaint but also in the ejectment notice as well as in the evidence.
Mr. Mukherjee thus, contends that when the plaintiff himself admitted the defendants as tenant in common, the learned First Appellate Court ought not to have passed any decree for eviction without being satisfied as to the existence of any of the grounds for eviction pleaded in the plaint. He further contends that the plaintiff never claimed in the plaint that the tenancy of the defendants ceased to operate by operation of Section 2(g) of the West Bengal Premises Tenancy Act, 1997 and as a result thereof they are not entitled to get any protection against eviction under the provision of the said Act. According to him, such being the pleadings of the plaintiff in the plaint, the learned First Appellate Court ought not to have maintained the decree for eviction by holding that by operation of law the tenancy of the tenant in common ceased to operate and they are liable to be evicted after the statutory period provided in Section 2(g) of the said Act had expired.
Mr. Mukherjee further contended that even the frame of the suit for eviction was not in conformity with the provision contained in Section 6 of the West Bengal Premises Tenancy Act, 1997. The instant suit for eviction was filed sometime in 2006 after the West Bengal Premises Tenancy (Amendment) Act, 2005 came into operation. The said amendment came into operation with effect from 19th March, 2005.
By referring to the said provision of the said Act, Mr. Mukherjee contends that as per Section 6 of the said Act, a suit for recovery of possession of any premises from a tenant can only be maintained before the Civil Judge having jurisdiction and not before any other forum. By referring to the cause title of the plaint as well as the reliefs claimed in the said plaint, Mr. Mukherjee points out that the action for recovery of possession of the suit premises was not initiated by the plaintiff as a suit, rather they filed an application seeking an order of recovery of possession of the suit premises from the tenant, by treating the said preceding as a proceeding before the controller.
He thus, invited this Court to admit this appeal on those two substantial questions of law. Let us now consider acceptability of such contention of Mr. Mukherjee in the facts of the instant case.
Let us first of all deal with the last point of Mr. Mukherjee first. Prior to the amendment of 2005, Section 6 of the said Act contemplates a proceeding for eviction of a tenant before the controller. After amendment was introduced in 2005, Section 6 of the said Act contemplates a proceeding for eviction of a tenant before the Civil Judge having jurisdiction and initiation of such proceeding will be by way of an application to be filed by the landlord. The said Section 6 of the said Act was further amended subsequently in 2006 which provides for initiation of such proceeding for eviction by way of suit being instituted by such landlord. Such amendment was introduced by the West Bengal Premises Tenancy (Amendment) Act, 2006 which came into effect from 1st June, 2006. The instant suit was filed on 21st February, 2006 i.e. prior to the 2006 amendment came into effect. As such, at the time when the eviction proceeding was initiated, Section 6 of the said Act contemplated initiation of such proceeding by way of an application to be instituted by the landlord before the Civil Judge, having jurisdiction.
On perusal of the basic pleading of the plaintiff, we find that the basic pleading of the plaintiff was framed in conformity with the provision contained in Section 6 of the said Act as it stood on the date of filing of the said proceeding. The basic pleading was in the form of a petition in conformity with the provision of Section 6 of the said Act as it stood prior to 2005 amendment.
As such, we are of the view that the initiation of the eviction proceeding on the basis of an application filed by the landlord against the tenant was well maintainable as per Section 6 of the said Act as it stood, on the date of institution of the said proceeding. The said provision also provides that the Civil Judge, having jurisdiction is competent to pass an order or decree for recovery of possession of any premises against the tenant on being satisfied about existence of any of the grounds as mentioned in Section 6 of the said Act.
Incidentally it may be mentioned therein that the Trial Court registered the said proceeding as a regular suit and tried the said suit by following the provisions of the Civil Procedure Code applicable to such suits.
Thus, on over all consideration of the said provision of the said Act, we do not find any substance in the contention of Mr. Mukherjee that the proceeding as framed by the landlord was not in conformity with the provision of Section 6 of the said Act and as such, the said proceeding ought not to have been entertained by the Courts below.
Let us now consider the other part of the submission of Mr. Mukherjee as recorded hereinabove.
We have already mentioned above that the plaintiff filed the said proceeding for eviction of the defendants on the ground that the defendants have unauthorisedly changed the mode of user of the tenancy without the written consent of the landlord. Though the learned Trial Judge after considering the pleadings of the parties and their evidence came to the conclusion that the plaintiff succeeded in proving that the defendants have unauthorisedly changed the mode of user of the said tenancy and passed a decree for eviction on the said ground but the learned First Appellate Court while approving the said decree did not maintain the said findings of the learned Trial Court; rather maintained the said decree on the ground that the tenants ceased to become tenant by operation of Section 2(g) of the said Act and they are not entitled to get any protection against eviction under the said Act.
Let us now consider the correctness of this part of the findings of the learned First Appellate Court in the facts of the present case.
Before we enter into the details of the inheritance part of the defendants' claim for acquiring the said tenancy as tenant in common from their predecessor, we want to make it clear that there cannot be any estoppel against statute and as such admission of the defendants' status as tenant-in-common by the plaintiff will not operate as estoppel against statute.
As such, irrespective of the admission made by the plaintiff as to the inheritance of the defendants of the suit premises as a tenant in common on the death of their predecessor Section 2(g) of the said Act will determine the rights of the parties by operation of law.
Section 2(g) of the said Act defines tenant in the following manner:-
"tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and [ in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him or a person authorised by the tenant who is in possession of such premises,] but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction:
Provided that the time limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises:
Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises [or condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose."
Let us now decide the actual status of such tenants-in-common after expiry of five years from the date of death of the original tenant in the light of Section 2(g) of the said Act.
Admittedly, the tenancy was created for a residential purpose. It is also an admitted fact that the predecessor-in-interest of the defendants was a tenant in respect of the suit premises under the present plaintiff. The said original tenant died on 20th July, 2001 leaving behind him, his widow, two sons and a daughter who inherited the said tenancy as tenants in common on the death of the original tenant. Some protection for continuation of possession of the tenancy of the erstwhile tenant by such tenants in common was granted under Section 2(g) of the said Act. The said provision provides that the wife, son, daughter, parent and the widow of the predeceased son of such tenant, since deceased who were ordinarily living with such tenant up to the death of original tenant as a member of his family and were dependent on him and who do not own or occupy any residential premises will continue such tenancy as tenant thereof for a further period not exceeding five years from the date of death of such tenant or from the date of coming into force of the Act, whichever is later.
The West Bengal Premises Tenancy Act, 1997 came into operation on 10th July, 2001. The original tenant died on 20th July, 2001.
Thus, we find that the original tenant died after 1997 Act came into operation. Though in the evidence it was stated by the defendant that the original tenant died some time in 2000 but the death certificate of the said tenant which is produced by Mr. Mukherjee before us shows that he died on 20th July, 2001.
Thus, subject to the satisfaction of the conditions as mentioned in Section 2(g) of the said Act by those specified heirs of the said tenant, we have no hesitation to hold that by operation of Section 2(g) of the said Act, the defendants who inherited the tenancy from their predecessor as tenant in common, had the right to continue their possession in the said tenancy as tenants thereof for a period of five years after the death of the original tenant. The said five years period expired on 19th July, 2006. Thus, the right to remain in possession in the suit premises by the defendant ceased with effect from 20th July, 2006. However, the proviso added to Section 2(g) of the said Act gives some additional protection to the wife of the tenant who was ordinarily leaving with the tenant upto his death as a member of his family and was depending on him and who does not her own or occupy any residential premises to continue her possession in the said tenancy even beyond the time limit of five years as contemplated in the main provision of the said Section 2(g).
Thus, we hold that the widow had the right to remain in possession in the said tenancy even beyond the five years limit, as mentioned in the main provision under Section 2(g) of the said Act. The said widow of the original tenant died on 2nd December, 2011. The proviso added to Section 2(g) of the said Act, thus, gives the widow an additional protection to continue her possession in the said tenancy even beyond five years limit, as mentioned in the main provision of Section 2(g), but the said provision does not provide that on the death of the said widow the tenancy is heritable by her heirs.
As such, we cannot hold that on the death of the widow of the original tenant, her heirs inherited the said tenancy as tenant under the landlord.
In the facts and circumstances as stated above, we have no hesitation to hold that by operation of Section 2(g) of the said Act, the defendant ceased to become a tenant under the plaintiff in respect of the suit premises after expiry of five years from the date of death of the original tenant. As such, they are not entitled to get any protection against eviction under the provision of the West Bengal Premises Tenancy Act, 1997.
The title of the landlord in respect of the suit premises is admitted by the defendant. After expiry of the statutory period of five years after the death of the original tenant, the defendant ceased to become a tenant under the plaintiff in respect of the suit premises and as such we hold that even without being satisfied about the existence of any of the grounds as mentioned in Section 6 of the said Act, the defendants can be evicted as they lost their right to continue their possession in the suit premises as tenants thereof by operation of Section 2(g) of the said Act. The defendants are now nothing but trespassers in the suit premises and they can be evicted from the suit premises by the plaintiff whose title is admitted by the defendants in the suit.
We, thus, hold that the learned First Appellate Court did not commit any illegality in maintaining the said decree of eviction passed by the learned Trial Judge, by applying Section 2(g) of the said Act in the facts of the present case.
We do not find involvement of any substantial question of law in this appeal. We decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
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 6152 of 2016 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.) dp/ac