Calcutta High Court
Smt. Amala Palit & Anr vs Smt. Ratna Bose & Ors on 10 April, 2014
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Arijit Banerjee
A.P.D. No. 213 of 2005
C.S. No. 616 of 1990
Smt. Amala Palit & Anr.
Vs.
Smt. Ratna Bose & Ors.
For the Appellant : Mr. Deba Prasad Bhattacharya, Advocate
Mr. Bidyut Kumar Banerjee, Advocate
For the Respondent : Mr. Joydip Kar, Advocate
Mr. Anirban Kar, Advocate
Mr. Suvadeep Sen, Advocate
Heard on : March 20, 21, 25, 26 & April 1, 2014
Judgment on : April 10, 2014
ASHIM KUMAR BANERJEE, J.
FACTS:
Subject property being premises No. 24A Balaram Ghosh Street Calcutta was an old building at North Calcutta owned by Mukherjee family. By registered Deed of Lease dated July 25, 1964 Mukherjees leased out a portion of the said building being open and vacant courtyard at the back portion of the building for twenty one years in favour of the appellants. The lease expired by efflux of time in July 1985. As a condition of the lease, the appellants were permitted to raise structure on the said vacant land. However, at the end of the lease, structure, if any, would belong to the owner. Sri Bimal Chandra Mitra an advocate of this Court witnessed the said execution. He also helped the parties in preparation and execution of the document as claimed by the appellants. In 1966 Mukherjees sold their interest in the property to Ghoshes being the respondent's predecessors. One Amiya Ghosh, Dr. Alok Kumar Ghosh, brothers by relation, and one Nirmal Mitra their brother-in- law (Sister's husband) purchased the property. In 1971 Nirmal, Amiya and Alok filed a suit being suit No. 327 of 1971 as against the Mukherjees and the predecessor of the appellants where Sri Bimal Chandra Mitra was appointed receiver. The suit was ultimately dismissed for non-prosecution in 1975. In 1983 Nirmal filed a partition suit that the parties settled by filing a Terms of Settlement. In the Terms of Settlement, the parties agreed, Sri Bimal Chandra Mitra who was acting as Commissioner of partition and receiver, would stand discharged from the post of Commissioner of partition however, he would continue to act as receiver so long he could not collect the compensation money for a portion of the said premises that the Corporation acquired through an acquisition proceeding. We are told, the parties have not been able to collect the compensation as yet. During pendency of the partition suit Dr. Alok Ghosh one of the co-sharers died a bachelor leaving him surviving his heirs on intestacy that would include Smt. Pritikana Mitra the wife of Sri Bimal Chandra Mitra. By the Terms of Settlement, the parties relinquished their rights in respect of the suit property in favour of Pritikana in exchange of her share in other property as also owelty money, as claimed by the respondent. By such process, Pritikana became the sole owner as claimed by her successor in interest after her death. When we heard the appeal Bimal Chandra Mitra had already died, so had Pritikana. The present lis would relate to an eviction proceeding as against the appellants. Bimal Chandra Mitra filed the suit as receiver in suit No. 169 of 1983 however, during pendency of the suit there was change in ownership as discussed above and ultimately the heirs of Bimal and Pritikana the present respondents came to be substituted. The defendant contested the suit by filing the written statement by taking various pleas including the plea of Thika Tenancy. It did not appeal to the learned Judge. At the time of the hearing of the appeal, the appellant took an additional ground challenging the status of the plaintiff being Bimal Chandra Mitra and/or his successor in interest claiming under him. CONTENTIONS:
APPELLANTS:
Mr. Debaprasad Bhattacharya learned Counsel appearing for the appellants, while elaborating his submission contended, Sri Mitra committed fraud on Court by concealing the fact, he and/or his family members had personal interest in the suit property. Hence, he should not have acted as receiver being a Court officer, without disclosing his status to the Court. While elaborating his submission, Mr. Bhattacharjee produced the original lease that would show, Sri Mitra acted as the advocate for the parties. He also witnessed the document hence, he could not have filed the suit on behalf of the owners as receiver. He continued as a receiver only for the purpose of collection of the compensation money. He did not disclose, his wife Pritikana subsequently acquired the entire ownership of the suit property. He would refer to the comments made by the Division Bench in Order dated February 14, 2012 appearing at page- 76-78 of Volume III of the paper book. Mr. Bhattacharya would also draw our attention to Section 17 of the Contract Act to show, a legal practitioner involved in litigation was debarred from acquiring interest in any actionable claim. He would rely upon the Apex Court decision in the case of State of Andhra Pradesh and another Vs. T. Suryachandra Rao reported in All India Reporter 2005 Supreme Court Page-3110. Coming to his second defence on Thika Tenancy Mr. Bhattacharya would rely upon Sections 3(8) and 21 of the Thika Tenancy Act 1981 and suggest, the suit was hit by the provisions of the said Act and the same was not maintainable. He would rely upon the Apex Court decision in the case of Dwarika Nath Acooli Vs. Dula Chandra Bayen and Others reported in 2009 Volume-II Supreme Court Cases Page-403.
Mr. Bhattacharya would then take us to the evidence that the parties led, to show, the ownership of the suit premises was not proved. Unless and until the issue could be finally resolved the eviction suit would not be maintainable. He would pray for setting aside of the judgment and decree passed by the learned Single Judge.
RESPONDENTS:
Mr. Joydeep Kar learned Counsel appearing for the respondents, would demolish both the arguments of the appellants. On the first issue, Mr. Kar would submit, Ghoshes were blood relations of Pritikana, they were siblings. When Dr. Alok Ghosh died a bachelor, Pritikana automatically acquired a part of his interest in the property along with other co-sharers. Subsequently, as and by way of settlement other co-sharers transferred their interest to Pritikana in respect of the subject premises in lieu of other properties involved in the partnership where Pritikana had foregone her interest however, such adjustment would be subject to payment of owelty money as agreed by the parties in the Terms of Settlement. Sri Mitra all along acted as receiver without any remuneration, he was rather helping the members of his family by dint of his expertise. He would further contend, Section 17 would have no application as transfer of share in an immovable property would not come within the meaning of actionable claim that would attract the mischief of Section 17.
On the issue of relationship Mr. Kar would cite two decisions:
1. Vashu Deo Vs. Balkishan reported in 2002 Volume-II Supreme Court Cases Page-50.
2. Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones reported in 2006 Volume-III Supreme Court Cases Page-
91.
Mr. Kar also distinguished the decision in the case of State of Andhra Pradesh and another Vs. T. Suryachandra Rao reported in All India Reporter 2005 Supreme Court Page-3110 on the issue.
On the second issue i.e. Thika Tenancy, Mr. Kar would contend, the lease was executed in 1964 when the Thika Tenancy Act of 1949 was in vogue, lease beyond twelve years was specifically excluded from the purview of the said Act.
When 1981 Act came into force that included slum, Basti or Khattal and could not attract the present tenancy. In this regard, he would rely upon the Division Bench decision in the case of Jatadhari Daw & Grandsons Vs. Smt Radha Debi and another reported in 1986 Volume-I Calcutta High Court Notes Page-21, that the Special Bench of our Court affirmed in the case of Lakshmimoni Das and Others Vs. State of West Bengal and Others reported in 1987 Volume-II Calcutta Law Journal page- 53.
He would further submit, once the tenancy was specifically excluded out of the purview of the 1949 Act and 1981 Act, the Controller could not have any authority to decide on the issue. In this regard, he would rely upon three Calcutta decisions:
1. Sri Sri Satyanarayan and Others Vs. S. C. Chunder reported in 2001 Volume-III Calcutta High Court Notes Page-641.
2. Shrenik Kumar Singhee Vs. State of West Bengal and Others reported in 2006 Volume-I Calcutta High Court Notes Page-540.
3. Bharat Petroleum Corporation Limited Vs. Howrah Motor Company Limited reported in 2011 Volume-II Calcutta High Court Notes Page-891.
He would lastly distinguish the Apex Court decision in the case of Dwarika Nath Acooli (supra) where the Apex Court considered a situation, when the Controller decided the issue being specifically asked by the High Court, the Controller specifically observed, he had no jurisdiction. Paragraph 14 of the decision was relied upon. Mr. Kar would pray for dismissal of the appeal.
While giving reply Mr. Bhattacharya would again reiterate, since the ownership is in dispute and the plaintiffs could not prove their title the learned Judge should not have passed a decree of eviction. He would rely upon two decisions of this Court:
1. Santilal Dulichand Shah Vs. Ramesh Chandra Guzrati reported in All India Reporter 1981 Calcutta Page-413.
2. Shri Nepal Kishore Ray and another Vs. Shri Baidyanath Poddar reported in 1984 Volume-I Calcutta Law Journal Page-393.
Mr. Kar relied on the admission made by the appellant. Reacting to such contentions Mr. Bhattacharya would contend, the admission must be considered in the light of the circumstances in which it was made. In this regard, he distinguished the decision in the case of Vashu Deo (supra), he would rely upon paragraph 10 and contend, the landlords should discharge their onus first that the respondents miserably failed in this regard.
On Thika Tenancy Mr. Bhattacharya would rely upon return as well as the paid chalans under which the appellants deposited rent all along with the Thika Controller. Mr. Bhattacharya was also critical about the partition suit referred to by Mr. Kar. According to him, neither the tenant nor the erstwhile owners Mukherjees were made party. He prayed for setting aside the judgment and decree of the learned Single Judge.
OUR VIEW:
The rival contentions would raise two issues:
i) Is the appellant a Thika tenant under the Thika controller?
ii) If so, what would be the effect in the present case?
Mr. Bhattacharya also raised an issue of fraud of which we do not find any basis.
Admittedly, the subject tenancy was not covered by the 1949 Act. Following the decision in the case of Jatadhari Daw (supra) and Lakshmimoni Das (supra), the 1981 Act could only be applicable in respect of the tenancies prevalent under the 1949 Act. Slum and Khattal were added. The subject tenancy is neither a Khattal nor a slum. Mere, deposit of rent with the Thika Controller would not ip so facto create any Thika Tenancy. Lease was executed in 1964. It was for twenty one years. Since, it was a lease beyond twelve years 1949 Act did not have any application. 1981 Act included Slum, Basti and Khattal that would have no application in the instant case. In the decision in the case of Dwarika Nath Acooli (supra), the Thika Controller himself admitted, he did not have jurisdiction. He inquired into the matter pursuant to the Order of the High Court, that situation would not arise in our matter. Hence, the subject tenancy was not covered by the Thika Tenancy Law and the contentions on that score are rejected.
The decision in the case of Santilal Dulichand Shah (Supra) was referred to at the reply stage. Here the Division Bench observed, when the original lessor left several heirs and the plaintiff was the karta of one section, payment of rent to the plaintiff by itself was not sufficient to entitle the plaintiff to get a decree of eviction unless he represents all the owners. In the instant case, the owners do not question the authority of the receiver. Admittedly, for a long time the appellants did not pay any rent. The appellants claimed, they deposited rent with the Thika Controller. Such deposit would have no consequence.
The decision in the case of Shri Nepal Kishore Ray (Supra) was relied upon to distinguish the proposition of law relating to Section 116 of the Indian Evidence Act. The learned Single Judge observed, estoppel in terms of Section 116 is limited to the landlord's title at the commencement and during subsistence of the tenancy however, the said law is not applicable once the earlier landlord ceases to have interest and the new one would step in. In the present case, Mr. Bhattacharya, in course of argument, admitted, the appellants paid rent to Ghoshes hence, they accepted the relationship. Pritikana inherited from the Ghoshes. She was successor in interest to the knowledge of the appellants hence, the precedent would have no application.
Mr. Bhattacharya heavily relied on the decision in the case of State of Andhra Pradesh (supra), he relied on paragraphs 7, 8 and 9. The land which was offered for surrender by the respondent had already been acquired by the State. The said fact was concealed. In the present case, it is true, Bimal acted as receiver without disclosing the fact, his wife was one of the co-sharers however, such disclosure could have been made to the parties to the said suit in which he was appointed receiver. The parties to the said suit were also relations. Bimal acted as receiver without any remuneration possibly because of the relationship. In any event, none of the parties to the said suit made any issue out of it. The appellant was not in any way prejudiced by such concealment, if any. Lot was said on fraud. Section 17 of the Contract Act was relied upon that would define "fraud". In the present case, Mr. Bhattacharya would draw reference from the fact, neither Pritikana nor Bimal ever disclosed their interest in the property. The Court was always kept in the dark. Pritikana was a natural heir and a co- sharer. Her subsequent acquisition of further share would have no relevance in the present context, at least, the appellants being the tenants were not concerned. Bimal was the Commissioner of partition cum receiver; he was not discharged as receiver. He filed a suit on behalf of the owners that the learned Single Judge did not find anything wrong. The observation of the Division Bench referred to by Mr. Bhattacharya, was nothing but expression of prima facie view and would not have any bearing at the final hearing. Hence, the contention of Mr. Bhatacharya on that score being not tenable, is rejected.
We have carefully gone through the judgment and Order of the learned Single Judge. We do not find any scope of interference. RESULT:
The appeal thus fails and is hereby dismissed. There would be no order as to costs.
Arijit Banerjee, J:
I agree.
[ASHIM KUMAR BANERJEE, J.] [ARIJIT BANERJEE, J.]