Calcutta High Court (Appellete Side)
Bistu Naskar vs Prafulla Kumar Ghosh on 25 July, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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. 383 of 2014
(CAN 6976 of 2015)
Bistu Naskar
-versus-
Prafulla Kumar Ghosh
For the Appellant : Mr. Mukul Lahiri,
Mr. Prasenjit Burman,
Mr. Sovan Bera,
Ms. Puja Beriwal.
Heard On : 25th July, 2016.
Judgement On : 25th July, 2016.
Jyotirmay Bhattacharya, J.
This Second Appeal is directed against the judgement and decree dated 21st April, 2014 passed by the learned Civil Judge, Senior Division, 3rd Court at Howrah, in Title Appeal No. 101 of 2013 affirming the judgment and decree dated 14th May, 2013 passed by the learned Civil Judge, Junior Division, 4th Court at Howrah, in title Suit No. 141 of 2009 at the instance of the defendant/appellant.
Let us now consider as to whether any substantial question of law is involved in this Second Appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
The plaintiff filed a suit for eviction against the defendant on termination of his tenancy by service of notice under Section 106 of the Transfer of Property Act. The plaintiff also alleged that the defendant is a defaulter in payment of rent in respect of the suit property. Since the defendant did not vacate the suit premises on expiry of the notice period, the plaintiff filed a suit for eviction for recovery of vacant and khas possession from the defendant. The defendant appeared in the said suit and contested the same by filing written statement denying that the defendant is a defaulter. Service of notice under Section 106 of the Transfer of Property Act upon the defendant was denied. The defendant, thus, prayed for dismissal of the said suit.
The learned Trial Judge after considering the pleadings of the parties and their evidence was pleased to pass a decree of eviction in favour of the plaintiff by holding interalia that the relationship of landlord and tenant was duly terminated by the service of notice under Section 106 of the Transfer of Property Act. The learned Trial Court also held that the period of notice was sufficient. Since the defendant failed to vacate the suit premises even after expiry of the notice period, the eviction decree was passed against the defendant.
Being aggrieved by and dissatisfied with the judgment and decree of the learned Trial Judge, the defendant preferred an appeal before the learned First Appellate Court. The learned First Appellate Court also affirmed the said judgment and decree of the learned Trial Court. The learned First Appellate Court held that notice under Section 106 of the Transfer of Property Act was sent by the plaintiff for effecting service upon the defendant by registered post with A/d. The A/d. card came back with a signature of the defendant. Since the acknowledgement due card contains the signature of the defendant, the learned First Appellate Court held that the learned Trial Court did not commit any illegality in drawing a presumption about due service of notice under Section 106 of the Transfer of Property Act. The learned First Appellate Court also held that though such presumption was rebuttable, but no step was taken by the defendant to rebut such presumption. Under such circumstances, the learned First Appellate Court duly affirmed the judgment and decree of the learned Trial Court. This Second Appeal is directed against the said judgement and decree of the learned First Appellate Court.
Mr. Lahiri, learned senior counsel, appearing for the appellant submits that though the defendant/appellant constantly denied the allegation of default in payment of rent made against him, but neither the learned Trial Court, nor the learned First Appellate Court considered the said issue, nor came to a positive finding on the said issue. Mr. Lahiri, thus, submits that since the eviction decree was passed without recording any finding with regard to the ground of default in payment of rent by the defendant, the eviction decree is bad in law and cannot be maintained.
We cannot agree with such contention of Mr. Lahiri simply for this reason that this is a suit for eviction of monthly tenant filed by his landlord under the Transfer of Property Act. Section 106 of the Transfer of Property Act provides that a decree for eviction can be obtained from the competent court, provided the plaintiff can satisfy the court on the issue regarding termination of relationship of landlord and tenant between the parties by service of notice under Section 106 of the Transfer of Property Act.
This is not a suit for eviction under the West Bengal Premises Tenancy Act where an embargo is imposed upon the jurisdiction of the court in passing a decree for eviction, save and except, on any of the grounds as mentioned in the said Act. It is no doubt true that under the West Bengal Premises Tenancy Act, court can not pass a decree for eviction without being satisfied about the existence of any of the grounds mentioned in the said Act, even though, the eviction notice was duly served upon the tenant and the notice is valid and sufficient.
Thus, we hold that since this is not a suit for eviction under the West Bengal Premises Tenancy Act, rather, this is a suit for eviction under the Transfer of Property Act, the court need not consider the grounds of eviction as to its existence or non-existence while passing a decree for eviction of a tenant. When both the courts below passed a decree for eviction by holding that the relationship of landlord and tenant between the parties was duly terminated by service of notice under Section 106 of the Transfer of Property Act and the defendant failed and neglected to vacate the suit premises, even after the expiry of the notice period, we hold that the courts below did not commit any illegality in passing a decree for eviction against the defendant/appellant.
We do not find involvement of any substantial question of law in this appeal.
We, thus, decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.
The appeal is dismissed. Consequently, the interlocutory application filed in connection with this appeal is also dismissed.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) ac